(1) A person to whom any of subsections (2), (3), (4) and (5) applies must not, without reasonable excuse—
(a) destroy, otherwise dispose of, falsify or conceal, or
(b) cause or permit the destruction, disposal, falsification or concealment of,
any relevant information.
(2) This subsection applies to a person where the person knows or suspects that a breach investigation or a PCI investigation is being or is likely to be carried out in relation to an undertaking.
(3) This subsection applies to a person where the person is, or is connected to (see section 118(3)), an undertaking that is not a designated undertaking and knows that the undertaking is the subject of an initial SMS investigation.
(4) This subsection applies to a person where the person is, or is connected to, a designated undertaking and knows that—
(a) the undertaking is required to produce a compliance report under section 84, or
(b) the undertaking is the subject of a further SMS investigation.
(5) This subsection applies to a person where the person is, or is connected to, an undertaking and knows or suspects that the CMA is assisting, or is likely to assist, an overseas regulator in carrying out, in relation to the undertaking, any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 (provision of investigative assistance to overseas regulators)).
(6) For the purposes of this section, relevant information is information which the person knows or suspects is or would be—
(a) relevant to the investigation mentioned in subsection (2), (3), (4) or (5), as the case may be,
(b) used by an undertaking to produce the compliance report, or
(c) relevant to the provision of assistance to the overseas regulator.
(1) A person may not be required under any provision of this Chapter to produce, generate or give to the CMA or an officer of the CMA a privileged communication.
(2) Nothing in this Chapter authorises the CMA or an officer of the CMA to produce or take possession of, or take copies of or extracts from, a privileged communication (but this is subject to Part 2 of the Criminal Justice and Police Act 2001, as amended by section 77 of this Act).
(3) A “privileged communication” is a communication—
(a) between a professional legal adviser and their client, or
(b) made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
(4) In the application of this section to Scotland—
(a) the reference to the High Court is to be read as a reference to the Court of Session, and
(b) the reference to legal professional privilege is to be read as a reference to the confidentiality of communications.
82 Power of CMA to publish notice of investigative assistance
(1) Where the CMA assists an overseas regulator in carrying out any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 (provision of investigative assistance to overseas regulators)), the CMA may publish a notice of its decision to do so which may, in particular—
(a) identify the overseas regulator concerned;
(b) summarise the matter in respect of which the assistance is requested;
(c) identify the undertaking in respect of which the assistance is requested.
(2) Section 112 does not apply to a notice under subsection (1) to the extent that it includes information other than information mentioned in that subsection.
(1) An undertaking must ensure that, at all times when the undertaking is subject to a digital markets requirement, it has an officer with responsibility for carrying out the functions set out in subsection (2) in relation to that digital markets requirement (a “nominated officer”).
(2) The functions are—
(a) monitoring the undertaking’s compliance with the digital markets requirement and all related requirements;
(b) cooperating with the CMA for the purposes of securing that the undertaking complies with the digital markets requirement and all related requirements to the satisfaction of the CMA;
(c) securing that the undertaking complies with section 84 (compliance reports).
(3) A “digital markets requirement” is any of the following—
(a) a conduct requirement under section 19;
(b) a requirement imposed by virtue of a pro-competition order under section 46;
(c) a requirement to comply with a commitment given under section 56.
(4) A “related requirement” is any of the following relating to a digital markets requirement—
(a) a requirement imposed by virtue of an enforcement order under section 31 or section 32;
(b) the requirement to comply with a commitment given under section 36;
(c) a requirement imposed by virtue of a final offer order under section 41(2) or section 42;
(d) a requirement in a direction under section 87 of EA 2002 (delegated power of directions) given by virtue of a pro-competition order (see section 51(1)).
(5) A nominated officer must be an individual who the undertaking—
(a) considers to be a senior manager of the undertaking, within the meaning of section 70(3), and
(b) reasonably expects to be in a position to fulfil the functions set out in subsection (2) in relation to the digital markets requirement.
(6) An undertaking that is required to have a nominated officer under subsection (1) must, as soon as reasonably practicable, inform the CMA of the identity of the nominated officer (including any replacement officer).
(1) An undertaking that is subject to a digital markets requirement (as defined in section 83(3)) must provide the CMA with a compliance report in relation to that digital markets requirement for each reporting period (as specified in a notice under subsection (3)).
(2) A compliance report is a report setting out—
(a) the extent to which the nominated officer considers that the undertaking has complied with the digital markets requirement and each related requirement (see section 83(4)) during the reporting period;
(b) how the undertaking has complied, and intends to continue to comply, with the digital markets requirement and each related requirement;
(c) such other information as the CMA may direct in relation to compliance with the digital markets requirement and each related requirement.
(3) At the same time as imposing a digital markets requirement on an undertaking, the CMA must give a notice to the undertaking specifying—
(a) the manner and form of the compliance report to be provided in relation to that digital markets requirement, and
(b) the reporting period for that digital markets requirement.
(4) The CMA may amend the requirements specified in a notice under subsection (3) by giving a further notice to the undertaking.
(5) The CMA may give a notice to an undertaking requiring it to publish a compliance report or a summary of a compliance report at such time, and in such manner and form, as the CMA may set out in the notice.
85 Penalties for failure to comply with competition requirements
(1) Where the CMA considers that an undertaking has, without reasonable excuse, failed to comply with a requirement listed in subsection (2), it may impose a penalty on the undertaking.
(2) The requirements are—
(a) a requirement imposed by virtue of an enforcement order under section 31 or section 32,
(b) a requirement imposed by virtue of a final offer order under section 41 (including a requirement imposed in reliance on section 42),
(c) a requirement imposed by virtue of a pro-competition order under section 46, and
(d) the requirement to comply with a commitment given under section 36 or 56.
(3) The CMA may impose a penalty on an undertaking where the CMA considers that the undertaking has, without reasonable excuse, failed to comply with a conduct requirement under section 19.
(4) The CMA may impose a penalty on an undertaking or, where the undertaking is part of a group, the group, where the CMA considers that the undertaking or any member of the group has, without reasonable excuse, failed to comply with a requirement in Chapter 5 (mergers).
(1) The amount of a penalty imposed on a person under section 85 may be such amount as the CMA considers appropriate, provided it does not exceed the amounts set out in subsection (4).
(2) The amount of a penalty under section 85(1) must be—
(a) a fixed amount,
(b) an amount calculated by reference to a daily rate, or
(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) The amount of a penalty under section 85(3) or (4) must be a fixed amount.
(4) The maximum amounts of a penalty that may be imposed are—
(a) in the case of a fixed amount, an amount equal to 10% of the total value of the turnover of the undertaking or, where the undertaking is part of a group, the turnover of the group;
(b) in the case of an amount calculated by reference to a daily rate, for each day an amount equal to 5% of the total value of the daily turnover of the undertaking or, where the undertaking is part of a group, the daily turnover of the group;
(c) in the case of a combination of a fixed amount and an amount calculated by reference to a daily rate, the amounts mentioned in paragraph (a), in relation to the fixed amount, and paragraph (b), in relation to the amount calculated by reference to a daily rate.
(5) In subsection (4), references to the total value of the turnover or daily turnover of an undertaking or group are to the total value of the turnover or daily turnover of the undertaking or, as the case may be, group, both inside and outside the United Kingdom.
87 Penalties for failure to comply with investigative requirements
(1) The CMA may impose a penalty on a person where it considers that the person has, without reasonable excuse—
(a) failed to comply with a requirement imposed by or under Chapter 6,
(b) given information which is false or misleading in a material particular in connection with any function of the CMA under this Part, or
(c) given information which is false or misleading in a material particular to another person knowing that the information was to be used for the purpose of giving information to the CMA in connection with any function of the CMA under this Part.
(2) The CMA may impose a penalty on an individual named as a senior manager under section 70 as well as on the undertaking that names the individual where—
(a) the CMA considers that the individual has failed, without reasonable excuse, to prevent a failure or an action by the undertaking of a sort mentioned in subsection (1), and
(b) the failure or action relates to an information notice in response to which the individual was named as a senior manager.
(3) The CMA may impose a penalty on an individual who is appointed by an undertaking to be a nominated officer under section 83 in relation to a digital markets requirement (within the meaning of that section), as well as on the undertaking that appoints the individual, where the CMA considers that the individual has failed, without reasonable excuse, to prevent the undertaking from failing to comply with a requirement in or under section 84 (compliance reports) in relation to that digital markets requirement.
(4) The CMA may impose a penalty on an individual where it considers that the individual has, without reasonable excuse, obstructed an officer of the CMA acting in the exercise of the officer’s powers under—
(a) section 74, or
(b) a warrant issued under section 75.
(1) The amount of a penalty imposed on a person under section 87 may be such amount as the CMA considers appropriate, provided it does not exceed the amounts set out in subsections (3) and (5).
(2) The amount of a penalty under section 87 must be—
(a) a fixed amount,
(b) an amount calculated by reference to a daily rate, or
(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) The maximum amounts of a penalty that may be imposed on an undertaking that is not an individual are—
(a) in the case of a fixed amount, an amount equal to 1% of the total value of the person’s turnover (both inside and outside the United Kingdom);
(b) in the case of an amount calculated by reference to a daily rate, for each day an amount equal to 5% of the total value of the person’s daily turnover (both inside and outside the United Kingdom);
(c) in the case of a combination of a fixed amount and an amount calculated by reference to a daily rate, the amounts mentioned in paragraph (a), in relation to the fixed amount, and paragraph (b), in relation to the amount calculated by reference to a daily rate.
(4) Where a person is an undertaking that is part of a group, references in subsection (3) to the person’s turnover are to the turnover of that group.
(5) The maximum amounts of a penalty that may be imposed on an individual or a person that is not an undertaking are—
(a) in the case of a fixed amount, £30,000,
(b) in the case of an amount calculated by reference to a daily rate, £15,000 per day, or
(c) in the case of a combination of a fixed amount and an amount calculated by reference to a daily rate, the amounts mentioned in paragraph (a), in relation to the fixed amount, and paragraph (b), in relation to the amount calculated by reference to a daily rate.
(6) The Secretary of State may by regulations amend the amounts mentioned in paragraphs (a) and (b) of subsection (5).
(7) The Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate before making regulations under subsection (6).
(8) Regulations under subsection (6) are subject to the affirmative procedure.
(1) Sections 112 (penalties: main procedural requirements), 113 (payments and interest by instalments), 114 (appeals), and 115 (recovery of penalties) of EA 2002 apply in relation to a penalty imposed under section 85 or 87 as they apply in relation to a penalty imposed under section 110(1) of that Act.
(2) For the purposes of this section—
(a) sections 112 to 115 of EA 2002 are to be read as if references to “the appropriate authority” were references to “the CMA” only;
(b) section 114(5A) of that Act is to be read as if the words “In the case of a penalty imposed on a person by the CMA or OFCOM,” were omitted;
(c) section 114(12) of that Act is to be read as if, for paragraph (b), there were substituted—
(b) “the relevant guidance” means the statement of policy which was most recently published under section 91 of the Digital Markets, Competition and Consumers Act 2024 at the time of the act or omission giving rise to the penalty.
(1) In imposing a penalty by reference to a daily rate—
(a) no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) of EA 2002 (as applied by section 89), and
(b) unless the CMA determines an earlier day (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of—
(i) the day on which the person first complies with the requirement in question, or
(ii) if earlier, where the requirement was imposed in connection with the provision by the CMA of assistance to an overseas regulator (see section 319 (provision of investigative assistance to overseas regulators)), the day on which the overseas regulator no longer requires that assistance.
(2) The Secretary of State may by regulations make provision for determining the turnover (both inside and outside the United Kingdom) of a person for the purposes of this Chapter.
(3) The regulations may (among other things)—
(a) make provision about amounts which are, or are not, to be included in a person’s turnover;
(b) make provision about the date or dates by reference to which a person’s turnover is to be determined;
(c) confer on the CMA the power to determine and make provision about matters specified in the regulations (including the matters mentioned in paragraphs (a) and (b)).
(4) Regulations under subsection (2) are subject to the negative procedure.
(1) The CMA must prepare and publish a statement of policy in relation to the exercise of powers to impose a penalty under sections 85 and 87.
(2) The statement must include a statement about the considerations relevant to the determination of—
(a) whether to impose a penalty under section 85 or 87;
(b) the nature and amount of any such penalty.
(3) The CMA may revise its statement of policy and, where it does so, must publish the revised statement.
(4) In preparing or revising its statement of policy the CMA must consult—
(a) the Secretary of State, and
(b) such other persons as the CMA considers appropriate.
(5) A statement of policy, or revised statement, may not be published under this section without the approval of the Secretary of State.
(6) Subsection (7) applies where the CMA proposes to impose a penalty on a person.
(7) The CMA must have regard to the statement of policy most recently published under this section at the time of the act or omission giving rise to the penalty when deciding—
(a) whether to impose the penalty, and
(b) if so, the amount of the penalty.
92 Monetary penalties: criminal proceedings and convictions
(1) The CMA may not impose a penalty on a person under section 87 in relation to an act or omission which constitutes an offence under section 93, 94 or 95 if the person has, in relation to that act or omission, been found guilty of that offence.
(2) A person may not be found guilty of an offence under section 93, 94 or 95 by virtue of an act or omission if the person has paid a penalty imposed under section 87 in relation to that act or omission.
(1) A person (“P”) commits an offence if, having been required to give information to the CMA or any other person under a provision of Chapter 6, P—
(a) intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or
(b) causes or permits its destruction, disposal, falsification or concealment.
(2) See section 97 for provision restricting the application of this section in relation to acts done by a person who is outside the United Kingdom.
(1) A person (“P”) commits an offence if—
(a) P gives information to the CMA in connection with any of the CMA’s digital markets functions,
(b) the information is false or misleading in a material particular, and
(c) P knows that it is or is reckless as to whether it is.
(2) A person (“P”) commits an offence if P gives information to another person which is false or misleading in a material particular and P—
(a) either—
(i) knows the information to be false or misleading in a material particular, or
(ii) is reckless as to whether the information is false or misleading in a material particular, and
(b) knows that the information will be given to the CMA in connection with any of its digital markets functions.
(3) See section 97 for provision restricting the application of this section in relation to acts done by a person who is outside the United Kingdom.
(1) A person (“P”) commits an offence if P intentionally obstructs an officer of the CMA acting in the exercise of the officer’s powers under—
(a) section 74, or
(b) a warrant issued under section 75.
(2) See section 97 for provision restricting the application of this section in relation to acts done by a person who is outside the United Kingdom.
(1) If an offence under section 93, 94 or 95 committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body corporate, or
(b) to be attributable to neglect on the part of an officer of the body corporate,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were an officer of the body corporate.
(3) If an offence under section 93, 94 or 95 committed by a partnership in Scotland is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to neglect on the partner’s part,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(4) In subsection (3), “partner” includes a person purporting to act as a partner.
(5) See section 97 for provision restricting the application of this section in relation to acts done by a person who is outside the United Kingdom.
97 Offences: limits on extra-territorial jurisdiction
A person does not commit an offence under section 93, 94 or 95 (including as those sections are applied by section 96) by virtue of an act done when the person is outside the United Kingdom unless one or more of the following applies at the time of the act—
(a) the person is a United Kingdom national;
(b) the person is an individual who is habitually resident in the United Kingdom;
(c) the person is a body incorporated under the law of any part of the United Kingdom.
A person guilty of an offence under section 93, 94 or 95 is liable—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;
(c) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(1) In the Company Directors Disqualification Act 1986, in section 9A (competition disqualification order), in subsection (4)—
(a) in the words before paragraph (a), for “either” substitute “any”;
(b) at the end insert—
(e) a requirement imposed by or under Chapter 3 of Part 1 of the Digital Markets, Competition and Consumers Act 2024 (undertakings with strategic market status in respect of a digital activity: conduct requirements);
(f) a requirement imposed by or under Chapter 4 of Part 1 of that Act (pro-competition interventions).
(2) In the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I. 4)), in Article 13A (competition disqualification order), in paragraph (4)—
(a) in the words before paragraph (a), for “either” substitute “any”;
(b) at the end insert—
(e) a requirement imposed by or under Chapter 3 of Part 1 of the Digital Markets, Competition and Consumers Act 2024 (undertakings with strategic market status in respect of a digital activity: conduct requirements);
(f) a requirement imposed by or under Chapter 4 of Part 1 of that Act (pro-competition interventions).
(1) If a person fails, without reasonable excuse, to comply with a requirement mentioned in subsection (2) (a “subsection (2) requirement”), the CMA may apply to the court for an order—
(a) requiring the person to comply with the subsection (2) requirement within a time specified in the court’s order, or
(b) if the subsection (2) requirement related to anything to be done in the management or administration of an undertaking, requiring the undertaking, or any of its officers, members or partners, to do it.
(2) The requirements are—
(a) a requirement imposed by virtue of an enforcement order (see section 31 and section 32);
(b) a requirement to comply with a commitment given under section 36 or 56;
(c) a requirement imposed by virtue of a final offer order (see section 41(2) and section 42);
(d) a requirement imposed by virtue of a pro-competition order (see section 46).
(3) An order of the court under subsection (1) may provide for all of the costs of, or incidental to, the application for the order to be borne by—
(a) the person that failed to comply with the subsection (2) requirement, or
(b) where the person responsible for the failure is an undertaking, any officer of a body corporate that is or is comprised in that undertaking.
(4) In the application of subsection (3) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.
(5) In this section, references to an “officer”, “member” or “partner” of an undertaking are to an officer, member or partner of a body corporate or, as the case may be, partnership, that is, or is comprised in, the undertaking.
(1) A relevant requirement is to be treated as a duty owed by the person that is subject to the requirement to any other person (“P”) who may be affected by a breach of the requirement.
(2) Where a breach of a relevant requirement causes P to sustain loss or damage, P may bring civil proceedings against the person that has breached the requirement before the appropriate court or the Tribunal for damages, an injunction or interdict or any other appropriate relief or remedy.
(3) Subsections (1) and (2) are subject to the defences and other incidents applying to actions for breach of statutory duty.
(4) For the purposes of this section and section 102, a relevant requirement is—
(a) a conduct requirement under section 19;
(b) a requirement imposed by virtue of a pro-competition order under section 46;
(c) a requirement to comply with a commitment given under section 36 or 56.
(5) Rules of court and Tribunal rules may make provision about the transfer from the Tribunal to the appropriate court or from the appropriate court to the Tribunal of all or any part of a claim made in proceedings under subsection (2).
(6) For the purposes of this section and section 102, the “appropriate court” means—
(a) in relation to England and Wales or Northern Ireland, the High Court, and
(b) in relation to Scotland, the Court of Session or a sheriff court of any sheriffdom.
(7) In Schedule 4 to EA 2002 (tribunal: procedure), in paragraph 1A, in sub-paragraph (1) after “the 1998 Act” insert “or section 101 of the Digital Markets, Competition and Consumers Act 2024”.
(1) The appropriate court (see section 101) and the Tribunal are bound by a CMA breach decision once it has become final.
(2) A CMA breach decision becomes final—
(a) when the time for applying for a review of that decision has passed without an application being made, or
(b) where an application has been made, when the application has been finally determined or has otherwise ended.
(3) For the purposes of subsection (2)(b), an application is not finally determined until any appeal relating to it has been determined (ignoring any possibility of an appeal out of time with permission).
(4) This section applies to the extent that the appropriate court or the Tribunal would not otherwise be bound by the CMA breach decision in question.
(5) In this section, a “CMA breach decision” is a decision by the CMA in accordance with this Part that a person has breached a relevant requirement (as defined in section 101).
(6) Rules of court or Tribunal rules may make provision in respect of assistance to be given by the CMA to the appropriate court or the Tribunal in proceedings brought otherwise than by the CMA in respect of a breach, or an alleged breach, of a relevant requirement.
(1) A person with a sufficient interest in any decision to which subsection (2) applies may apply to the Tribunal in accordance with Tribunal rules for a review of that decision.
(2) This subsection applies to any decision made by the CMA in connection with its digital markets functions (including a decision not to exercise a function) apart from—
(a) a decision made by the CMA in connection with its functions under Chapter 5 (but see section 66);
(b) a decision about the imposition of a penalty under section 85 or 87 (but see section 89(1)).
(3) The making of an application under subsection (1) does not suspend the effect of the decision to which the application relates except so far as a direction to the contrary is given by the Tribunal.
(4) In determining an application under this section, the Tribunal must apply the same principles as would be applied—
(a) in the case of proceedings in England and Wales or Northern Ireland, by the High Court in determining proceedings on judicial review;
(b) in the case of proceedings in Scotland, by the Court of Session on an application to the supervisory jurisdiction of that Court.
(5) The Tribunal may—
(a) dismiss the application or quash the whole or part of the decision to which it relates, and
(b) where it quashes the whole or part of that decision, refer the matter back to the CMA with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
(6) An appeal lies on any point of law arising from a decision of the Tribunal under this section to the appropriate court.
(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
(8) In this section, “the appropriate court” means—
(a) in relation to England and Wales or Northern Ireland, the Court of Appeal, or
(b) in relation to Scotland, the Court of Session.
(1) The CMA may publish a notice extending a relevant investigation period or a final offer period by a period of up to 3 months where it considers that there are special reasons for doing so.
(2) A notice under subsection (1) must specify how long the extension is for.
(3) The CMA may also publish a notice extending a relevant investigation period or a final offer period where it considers that—
(a) in relation to a relevant investigation period—
(i) a person has failed to comply with any requirement of a notice under section 69 (power to require information) or under section 72 (power to interview) which was given in relation to an SMS investigation, a conduct investigation or a PCI investigation, and
(ii) the failure is preventing the CMA from properly discharging the digital markets functions to which the investigation relates, or
(b) in relation to a final offer period—
(i) a person has failed to comply with any requirement of a notice under section 69, and
(ii) the failure is preventing the CMA from properly discharging any of its functions under sections 38 to 45 (final offer mechanism).
(4) An extension under subsection (3) is for the period—
(a) beginning with the day on which it comes into force, and
(b) ending with the day on which the CMA publishes a notice of its decision to end the extension.
(5) The CMA must publish a notice under subsection (4)(b) where the person who had failed to comply as mentioned in subsection (3) gives the information in question to the CMA or, as the case may be, answers questions and provides explanations to the satisfaction of the CMA.
(6) An extension under subsection (1) or (3) begins with the day on which the notice under subsection (1) or (3), as the case may be, is published.
(7) Where—
(a) the CMA extends an SMS investigation period relating to a further SMS investigation under subsection (1) or (3),
(b) the extension means that the SMS investigation period would (apart from this subsection) continue after the end of the designation period for the existing designation which is the subject of the further SMS investigation, and
(c) in the case of an extension under subsection (3), the person who had failed to comply is, or is connected to, the designated undertaking,
the designation period for the existing designation is extended until the end of the SMS investigation period.
(8) In this section and in section 105 references to a “relevant investigation period” are to—
(a) an SMS investigation period;
(b) a conduct investigation period;
(c) a PCI investigation period.
(1) A period may be extended under both section 104(1) and (3).
(2) No more than one extension is possible under section 104(1).
(3) Where a relevant investigation period or a final offer period is extended or further extended under section 104(1) or (3), the period as extended or, as the case may be, further extended is, subject to subsection (4), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).
(4) Where—
(a) a relevant investigation period or a final offer period is further extended under section 104(3), and
(b) the further extension overlaps with a previous extension under section 104(3),
the period of overlap is to be disregarded in calculating the period of the further extension.
(1) The CMA may make a reference to the CMA chair for the constitution of a group under Schedule 4 to ERRA 2013 in respect of any non-reserved digital markets function.
(2) A reference under this section must specify the non-reserved digital markets function in respect of which the reference is made (“the referred function”).
(3) A CMA group constituted under ERRA 2013 for the purposes of a reference under this section must carry out the referred function.
(4) For the purposes of this section, a “non-reserved digital markets function” is any digital markets function other than a digital markets function that the CMA Board may not delegate—
(a) under paragraph 29(1) of Schedule 4 to ERRA 2013, as a result of paragraph 29(2) of that Schedule as it has effect from time to time, or
(b) under paragraph 29(1)(a) of that Schedule, as a result of paragraph 29(2A) of that Schedule as it has effect from time to time.
(5) In subsection (1), “CMA chair” means the person appointed under paragraph 1(1)(a) of Schedule 4 to ERRA 2013.
(6) In Schedule 4 to ERRA 2013 (the Competition and Markets Authority), paragraph 29 (delegation) is amended as follows.
(7) In sub-paragraph (2) (functions which cannot be delegated), at the end insert—
(g) whether to begin an initial SMS investigation under section 9 of the Digital Markets, Competition and Consumers Act 2024 (“the 2024 Act”);
(h) whether to begin a further SMS investigation under section 10 of the 2024 Act;
(i) whether to begin a PCI investigation under section 47 of the 2024 Act.
(8) After sub-paragraph (2) insert—
(2A) Sub-paragraph (1)(a) does not apply to the functions of deciding—
(a) whether to make a designation under section 2 of the 2024 Act;
(b) what, if any, provision to make in reliance on section 17 of the 2024 Act;
(c) whether to impose a conduct requirement under section 19 of the 2024 Act;
(d) whether to revoke a conduct requirement under section 22 of the 2024 Act;
(e) whether to make, and the form of, an enforcement order, other than an interim enforcement order, under section 31 of the 2024 Act;
(f) whether to accept a commitment under section 36 or section 56 of the 2024 Act;
(g) whether to exercise the power conferred by section 38(1) of the 2024 Act (power to adopt final offer mechanism);
(h) whether to make, and the form of, a pro-competition intervention under section 46 of the 2024 Act;
(i) the contents of a notice under section 50 of the 2024 Act (notice of decision on pro-competition intervention);
(j) whether to replace a pro-competition order under section 52 of the 2024 Act;
(k) whether to revoke a pro-competition order under section 53 of the 2024 Act.
(l) whether to impose a penalty on a person under section 85 or section 87 of the 2024 Act;
(m) the amount of any such penalty.
(2B) A committee or sub-committee of the CMA Board may not be authorised to carry out any of the functions listed in sub-paragraph (2A) unless—
(a) the committee or sub-committee includes—
(i) at least two members of the Board who are not members of the CMA’s staff, or
(ii) the chair and at least one member of the Board who is not a member of the CMA’s staff, and
(b) at least half of the members of the committee or sub-committee are—
(i) members of the Board who are not members of the CMA’s staff, or
(ii) members of the CMA panel.
(9) After sub-paragraph (3) insert—
(4) The Secretary of State may by regulations made by statutory instrument amend sub-paragraphs (2) or (2A) so as to add or remove functions of the CMA under Part 1 of the 2024 Act.
(5) The regulations may make incidental, transitional or saving provision.
(6) A statutory instrument containing regulations under sub-paragraph (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(1) The CMA must consult the FCA on a proposal to exercise a regulatory digital markets function in respect of a matter where the CMA considers the matter is a matter in relation to which the CMA and the FCA may have concurrent functions (see sections 234I (functions under Part 4 of EA 2002) and 234J (functions under CA 1998) of the Financial Services and Markets Act 2000 (as amended by this Act) (“FSMA”)).
(2) The CMA must consult OFCOM on a proposal to exercise a regulatory digital markets function in respect of a matter where the CMA considers the matter is a matter in relation to which the CMA and OFCOM may have concurrent functions (see sections 370 (functions under Part 4 of EA 2002) and 371 (functions under CA 1998) of the Communications Act 2003 (as amended by this Act)).
(3) The CMA must consult the Information Commission on a proposal to exercise a regulatory digital markets function in a manner that the CMA considers is likely to have a material adverse effect on the ability of the Information Commission to exercise functions under—
(a) the data protection legislation,
(b) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426), or
(c) the Network and Information Systems Regulations 2018 (S.I. 2018/506).
(4) The CMA must consult the Bank of England on a proposal to exercise a regulatory digital markets function in a manner that the CMA considers is likely to have a material adverse effect on the ability of the Bank of England to advance the Financial Stability Objective as defined in section 2A of the Bank of England Act 1998.
(5) The CMA must consult the PRA on a proposal to exercise a regulatory digital markets function in a manner that the CMA considers is likely to have a material adverse effect on the ability of the PRA to advance—
(a) its general objective under section 2B of FSMA, or
(b) its insurance objective under section 2C of FSMA.
(6) The duties in subsections (1) to (5) apply only to the extent that the CMA considers that compliance does not impose a burden on it that outweighs the benefits of compliance.
(1) The FCA or OFCOM may make a recommendation to the CMA where they consider that the CMA should exercise a regulatory digital markets function in relation to an undertaking and a digital activity.
(2) A recommendation under subsection (1) must—
(a) describe the undertaking, the digital activity, and the regulatory digital markets function to which it relates, and
(b) be given to the CMA in writing.
(3) A recommendation under this section must be accompanied by a statement of reasons for the recommendation.
(4) Within the period of 90 days beginning with the day on which it receives a recommendation, the CMA must—
(a) give notice to the regulator that made the recommendation—
(i) setting out the action that the CMA has taken or intends to take in response to the recommendation, and
(ii) including the reasons for its decision, and
(b) publish a summary of the notice.
(1) In Schedule 14 to EA 2002 (provisions about disclosure of information) at the appropriate place insert—
Part 1 of the Digital Markets, Competition and Consumers Act 2024.
(2) In Schedule 15 to EA 2002 (provisions about disclosure of information) at the appropriate places insert—
Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426).
;
“Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC.
;
“Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (United Kingdom General Data Protection Regulation).
;
“Part 4 of the Network and Information Systems Regulations 2018 (S.I. 2018/506).
;
“Data Protection Act 2018.
;
“Part 1 of the Digital Markets, Competition and Consumers Act 2024.
(1) The CMA may require an undertaking to pay it a levy in respect of a chargeable year during the whole or part of which the undertaking is a designated undertaking.
(2) The amount of the levy is to be calculated in accordance with rules made for the purposes of this section by the CMA (“the levy rules”).
(3) The CMA may amend or replace the levy rules.
(4) The levy rules must—
(a) secure that the aggregate amount payable in respect of a chargeable year is not to exceed the costs which the CMA incurs in exercising its digital markets functions during that year;
(b) make provision about how the aggregate amount payable in respect of a chargeable year is to be divided between the undertakings which are designated undertakings for the whole or part of that year;
(c) secure that where an undertaking is a designated undertaking for only part of a chargeable year, the amount of the levy payable by that undertaking in respect of that chargeable year is proportionately reduced;
(d) set out how the CMA is to estimate the costs which it expects to incur in exercising its digital markets functions during a chargeable year;
(e) set out how the CMA is to calculate the costs which it actually incurs in exercising its digital markets functions during a chargeable year;
(f) make provision about the repayment or crediting of any amounts of levy paid in respect of a chargeable year on the basis of the CMA’s estimate of the costs it would incur in exercising its digital markets functions during that year where the CMA’s estimated costs exceed the CMA’s actual costs of exercising those functions during that year;
(g) secure that any repayment or crediting in respect of a chargeable year in accordance with provision made under paragraph (f), so far as relating to an undertaking, is in proportion to the amount paid by that undertaking in respect of that year;
(h) make provision about the charging of amounts of levy in respect of a chargeable year where the CMA’s actual costs of exercising its digital markets functions during that year exceed the costs which the CMA estimated it would incur;
(i) secure that, where an undertaking is required to pay an amount of levy in respect of a chargeable year in accordance with provision made under paragraph (h), the amount which the undertaking is required to pay is in proportion to the amount already paid by the undertaking in respect of that year;
(j) make provision about the administration and payment of the levy.
(5) The levy rules may make provision for interest to be charged, at the rate specified for the time being in section 17 of the Judgments Act 1838, on any amount of levy not paid by the date on which it is due.
(6) References in subsection (4) to an amount payable by an undertaking do not include interest charged in accordance with provision made under subsection (5).
(7) The CMA must pay any amount that it receives in accordance with provision made under subsection (5) into the Consolidated Fund.
(8) The CMA must consult such persons as it considers appropriate before making the levy rules, including any amended or replacement levy rules (see section 113).
(9) The consultation must include a draft of the proposed levy rules.
(10) The CMA must, at the same time as beginning consultation under subsection (8), arrange for the draft of the proposed levy rules to be laid before Parliament.
(11) The CMA must publish the levy rules, including amended or replacement rules.
(12) An amount payable by an undertaking in accordance with this section and the levy rules is recoverable as a civil debt due to the CMA.
(13) For the purposes of this section—
(a) a chargeable year is a period of 12 months ending with 31 March;
(b) the CMA’s costs of exercising its digital markets functions do not include costs incurred by the CMA for the purposes of litigation.
(1) Unless otherwise stated, this Part applies in relation to persons outside the United Kingdom.
(2) A power to give a notice to a person outside the United Kingdom by virtue of this Part is exercisable only if the person is within subsection (3), (4) or (5).
(3) A person is within this subsection if the person is, or is part of—
(a) a designated undertaking or an undertaking to which an obligation applies by virtue of provision made in reliance on section 17(1) (existing obligations);
(b) an undertaking that is the subject of a digital markets investigation.
(4) A person is within this subsection if the person is an individual—
(a) who is named as a senior manager under section 70 or appointed as a nominated officer under section 83, and
(b) on whom the CMA has imposed or is considering imposing a penalty under section 87(2) or 87(3), as the case may be.
(5) A person is within this subsection if the person—
(a) is a United Kingdom national,
(b) is an individual who is habitually resident in the United Kingdom,
(c) is a body incorporated under the law of any part of the United Kingdom, or
(d) carries on business in the United Kingdom.
(6) Nothing in this section is to be taken to limit any other power of the CMA to give a notice to a person outside the United Kingdom.
For the purposes of the law relating to defamation, absolute privilege attaches to anything done by the CMA in the exercise of any of its functions under this Part.
(1) The CMA must comply with any duty to consult under this Part in such manner as it considers practicable, having regard in particular to—
(a) any need to keep information confidential, and
(b) the timetable for making a final decision or taking any action following the consultation.
(2) Any consultation which the CMA carries out under this Part must include—
(a) reasons for the finding, decision or proposal to which the consultation relates, and
(b) such other information as the CMA considers necessary to allow a proper understanding of those reasons (subject to subsection (1)(b)).
(3) The CMA must comply with any duty to publish a notice or any other document under this Part by publishing the notice or document online, having regard to any need to keep information confidential.
(4) In order to give effect to any need to keep information confidential, the CMA may publish the notice or other document in a redacted form.
(1) The CMA must publish guidance on how it will exercise its functions under this Part.
(2) The CMA may revise or replace guidance published under this section.
(3) The CMA must publish any revised or replacement guidance.
(4) Before publishing guidance (including any revised or replacement guidance) under this section, the CMA must—
(a) consult such persons as it considers appropriate, and
(b) obtain the approval of the Secretary of State.
(5) When the CMA seeks the approval of the Secretary of State for guidance, the Secretary of State must—
(a) approve the guidance, or
(b) give reasons to the CMA for not approving it.
(6) The Secretary of State must comply with subsection (5) before the end of the 30th working day after the day on which the CMA seeks the Secretary of State’s approval.
In the Public Interest Disclosure (Prescribed Persons) Order 2014 (S.I. 2014/2418), in the table in the Schedule, in the entry for the Competition and Markets Authority, in the right hand column, after “Kingdom” insert “, including matters relating to Part 1 of the Digital Markets, Competition and Consumers Act 2024 (digital markets)”.
(1) This section applies for the purposes of—
(a) digital markets proceedings, or
(b) competition proceedings.
(2) A court or the Tribunal must not make a disclosure order requiring the CMA to disclose or produce information where the court or the Tribunal is satisfied that another person would be reasonably able to provide the information.
(3) A court or the Tribunal must not make a disclosure order requiring the disclosure or production of digital markets investigation information before the CMA gives notice of the closure or outcome of each investigation to which the information relates.
(4) In this section—
“competition proceedings” has the meaning given by paragraph 2(4) of Schedule 8A to the Competition Act 1998 (further provision about claims in respect of loss or damage before a court or the Tribunal);
“digital markets investigation information” means information—
prepared by a person other than the CMA for the purpose of a digital markets investigation;
sent by the CMA in connection with such an investigation to a person that is the subject of the investigation;
“digital markets proceedings” means proceedings under section 101 (rights to enforce requirements of Part 1) or proceedings on appeal from such proceedings.
(5) Paragraphs 7 and 27 of Schedule 8A to the Competition Act 1998 (other definitions; disclosure orders) apply for the purposes of this section as they apply for the purposes of Part 6 of that Schedule.
(6) In Schedule 8A to the Competition Act 1998—
(a) in paragraph 7 (other definitions), after sub-paragraph (2) insert—
(2A) “Digital markets proceedings” means proceedings under section 101 of the Digital Markets, Competition and Consumer Act 2024 (rights to enforce requirements of Part 1).
;
(b) in paragraph 28, after “competition proceedings” insert “or digital markets proceedings”;
(c) in paragraph 29, after “competition proceedings” insert “or digital markets proceedings”;
(d) in paragraph 30(1), after “competition proceedings” insert “or digital markets proceedings”.
(1) This section makes provision about groups for the purposes of this Part.
(2) An undertaking is part of a group if one or more bodies corporate which are comprised in the undertaking are members of the same group as one or more other bodies corporate.
(3) For the purposes of this Part, two bodies corporate are members of the same group if—
(a) one is the subsidiary of the other, or
(b) both are subsidiaries of the same body corporate.
(1) In this Part—
“breach investigation” means an investigation (including a conduct investigation) into whether an undertaking is breaching or has breached a requirement imposed on the undertaking under this Part by virtue of the undertaking being, or having been, a designated undertaking;
“conduct investigation” has the meaning given by section 26(1);
“conduct investigation notice” has the meaning given by section 26(3);
“conduct investigation period” has the meaning given by section 30(2);
“conduct requirements” has the meaning given by section 19(3);
“consumer” has the meaning given by section 129(1) of EA 2002;
“the court”, except where otherwise stated, means—
in relation to England and Wales or Northern Ireland, the High Court, and
in relation to Scotland, the Court of Session;
“customer” includes a customer who is not a consumer;
“designated undertaking” means an undertaking which the CMA has designated as having SMS in respect of a digital activity;
“designation” means the designation of an undertaking as having SMS in respect of a relevant digital activity;
“designation period” has the meaning given by section 15(3)(e);
“digital activity” has the meaning given by section 3(1);
“digital content” has the meaning given by section 330;
“digital markets functions” means—
the functions that the CMA has under this Part, and
the CMA’s power to do anything that is calculated to facilitate, or is conducive or incidental to, the performance of those functions (see paragraph 20 of Schedule 4 to ERRA 2013 (additional powers));
“digital markets investigation” means—
an SMS investigation;
a breach investigation (including a conduct investigation);
a PCI investigation;
the “digital markets investigation powers” are the powers that the CMA has under—
section 69 (power to require information);
section 71 (power of access);
section 72 (power to interview);
section 74 (power to enter business premises without a warrant);
section 75 (power to enter premises under a warrant);
section 79 (reports by skilled persons);
“enforcement order” has the meaning given by section 31(1);
“the FCA” means the Financial Conduct Authority;
“final offer initiation notice” has the meaning given by section 40(1);
“final offer order” has the meaning given by section 41(2);
“final offer payment terms” has the meaning given by section 38(1);
“final offer period” has the meaning given by section 41(3);
“further SMS investigation” has the meaning given by section 10(3);
“grouped third parties” has the meaning given by section 39(3);
“grouped transactions” has the meaning given by section 39(3);
“information” includes—
information in the form of a document, whether in draft or final form;
information in any other form;
data, code, algorithms, estimates, forecasts, returns and explanations;
“information notice” has the meaning given by section 69(2);
“initial SMS investigation” has the meaning given by section 9(2);
“interim enforcement order” has the meaning given by section 32(1);
“joined third parties” has the meaning given by section 39(1);
“OFCOM” means the Office of Communications;
“officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body;
“PCI” stands for “pro-competition intervention”;
“PCI decision” has the meaning given by section 49(1);
“PCI investigation” has the meaning given by section 47(1);
“PCI investigation notice” has the meaning given by section 48(1);
“PCI investigation period” has the meaning given by section 50(1);
“person”, in addition to the meaning given by the Interpretation Act 1978, includes an undertaking;
“the PRA” means the Prudential Regulation Authority;
“pro-competition order” has the meaning given by section 46(3)(a);
“product” means—
goods;
services;
digital content;
the “regulatory digital markets functions” are—
the power to open an SMS investigation under section 9(1) (initial SMS investigation) or section 10(1) or (2) (further SMS investigation);
the power to designate an undertaking as having SMS under Chapter 2 (strategic market status);
the power to revoke a designation under Chapter 2 (strategic market status);
the power to impose or revoke conduct requirements under Chapter 3 (conduct requirements);
the power to make, replace or revoke PCIs under Chapter 4 (pro-competition interventions);
“relevant digital activity” in relation to a designated undertaking means a digital activity in respect of which the undertaking has been designated as having SMS;
the “relevant service or digital content” in relation to a digital activity means the service or digital content the provision of which constitutes (together with any other activity carried out for the purposes of that provision) the digital activity;
“SMS” stands for “strategic market status”;
“SMS conditions” are the conditions set out in section 2(2);
“SMS decision notice” has the meaning given by section 14(2);
“SMS investigation” means an initial SMS investigation and a further SMS investigation;
“SMS investigation notice” has the meaning given by section 11(1);
“SMS investigation period” has the meaning given by section 14(2);
“submission date” has the meaning given by section 40(2)(d);
“subsidiary” has the meaning given by section 1159 of the Companies Act 2006;
“the Tribunal” means the Competition Appeal Tribunal;
“Tribunal rules” means rules under section 15 of EA 2002;
“the turnover condition” has the meaning given by section 7;
“UK user” and “UK customer” mean any user or, as the case may be, customer who it is reasonable to assume—
in the case of an individual, is normally in the United Kingdom, and
in any other case, is established in the United Kingdom;
“undertaking” has the same meaning as it has for the purposes of Part 1 of CA 1998 (competition: agreements, abuse of dominant position etc);
“user” includes any person, legal or natural, and, in relation to a digital activity, means any user of the relevant service or digital content.
(2) In this Part—
(a) references to “giving notice” or “giving a notice” are to giving notice or giving a notice in writing;
(b) references to “using” include, in relation to a service or digital content, interacting, or carrying out activities that interact, in any way, directly or indirectly, with the service or digital content;
(c) references to the supply, provision, acquisition or use of goods or services include the supply, provision, acquisition or use of digital content.
(3) In this Part, a person is “connected to” an undertaking if that person—
(a) is concerned in the management or control of the undertaking,
(b) is employed by the undertaking, or
(c) works for the undertaking in any other capacity.
119 Removal of requirement for agreements etc to be implemented in the UK
(1) In Chapter 1 of Part 1 of CA 1998 (agreements), section 2 (agreements etc preventing, restricting or distorting competition) is amended as follows.
(2) For subsection (1) substitute—
(1) Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom and which—
(a) in the case of agreements, decisions or practices implemented, or intended to be implemented in the United Kingdom, may affect trade in the United Kingdom, or
(b) in any other case, are likely to have an immediate, substantial and foreseeable effect on trade within the United Kingdom,
are prohibited unless they are exempt in accordance with the provisions of this Part.
(3) Omit subsection (3).
(4) The amendments made by this section do not have effect in relation to agreements between undertakings (within the meaning of CA 1998) made before the coming into force of this section.
(5) Subsection (5) of section 2 of CA 1998 applies for the purposes of subsection (4) as it applies for the purposes of Part 1 of that Act.