(1) This section applies where—
(a) the CMA gives to a body corporate (“the respondent”) a final notice, and
(b) the interconnection condition applies in relation to the respondent.
(2) The interconnection condition applies in relation to the respondent if—
(a) at the time the final notice is given, the respondent is a member of a group of interconnected bodies corporate,
(b) at any time when requirements imposed by the final notice remain in force, the respondent becomes a member of a group of interconnected bodies corporate, or
(c) at any time when requirements imposed by the final notice remain in force, a group of interconnected bodies corporate of which the respondent is a member is increased by the addition of one or more further members.
(3) The notice may include provision for the requirements (or any particular requirements) imposed by the final notice on the respondent also to be binding upon all other members of the group (in addition to the respondent), as if each of them were the respondent.
(4) Provision may be included in a notice under subsection (3) only if the CMA considers it just, reasonable and proportionate to include that provision.
(5) A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.
(6) Any two bodies corporate are interconnected—
(a) if one of them is a subsidiary of the other, or
(b) if both of them are subsidiaries of the same body corporate.
(7) Where a final notice includes provision under subsection (3), the notice must also be given to any other member of the respondent’s group in relation to which the requirements imposed by the notice are to be binding.
(8) In this section “final notice” means—
(a) a final infringement notice,
(b) an online interface notice, or
(c) a final breach of directions enforcement notice.
(1) The CMA must keep a record of—
(a) undertakings it has accepted and enforcement directions it has given, and
(b) reviews it has carried out in relation to the effectiveness of such undertakings and directions.
(2) If requested to do so by the Secretary of State, the CMA must prepare a report on—
(a) the effectiveness of undertakings and enforcement directions, and
(b) the number and outcome of appeals brought under section 202.
(3) The CMA must—
(a) provide to the Secretary of State a report prepared under this section, and
(b) publish the report in such manner as the CMA considers appropriate.
(4) In this section—
(a) “undertakings” means undertakings given under section 185;
(b) “enforcement directions” includes directions given in a notice under section 192(5)(b).
(1) A person to whom a relevant notice is given may appeal to the appropriate appeal court against—
(a) a decision to impose a monetary penalty by virtue of the notice,
(b) the nature or amount of any such penalty, or
(c) the giving of directions by virtue of the notice.
(2) The grounds for an appeal under subsection (1)(a) or (b) are that—
(a) the decision to impose a monetary penalty was based on an error of fact,
(b) the decision was wrong in law,
(c) the amount of the penalty is unreasonable, or
(d) the decision was unreasonable or wrong for any other reason.
(3) The grounds for an appeal under subsection (1)(c) are that—
(a) the decision to give the directions was based on an error of fact,
(b) the decision was wrong in law,
(c) the nature of the directions is unreasonable, or
(d) the decision was unreasonable or wrong for any other reason.
(4) On an appeal under this section the appropriate appeal court may quash, confirm or vary the relevant notice.
(5) Except in the case of an appeal relating to a final false information enforcement notice, in addition to the powers conferred by subsection (4) the appropriate appeal court may also remit any matter that is the subject of the appeal to the CMA.
(6) An appeal under this section must be brought before the end of the applicable period beginning with the day on which the relevant notice was given to the person seeking to bring the appeal.
(7) The appropriate appeal court may extend the applicable period for bringing an appeal.
(8) Where an appeal is brought in respect of—
(a) a requirement to pay a monetary penalty, or
(b) a requirement to pay compensation under directions imposing enhanced consumer measures,
the penalty or compensation is not required to be paid until after the appeal is determined, withdrawn or otherwise dealt with.
(9) In this section—
“applicable period” means—
in relation to a final false information enforcement notice, the period of 28 days;
in relation to any other relevant notice, the period of 60 days;
“appropriate appeal court” means—
in relation to England and Wales or Northern Ireland, the High Court;
in relation to Scotland, the Outer House of the Court of Session;
“relevant notice” means—
a final infringement notice,
an online interface notice,
a final breach of undertakings enforcement notice,
a final breach of directions enforcement notice, or
a final false information enforcement notice.
203 Information to accompany orders or notices imposing monetary penalties
(1) An order or notice under Chapter 3 or 4 under which a person (“the respondent”) is required to pay a monetary penalty must state the following information (referred to in those Chapters as the “monetary penalty information”)—
(a) the amount of the penalty (including whether it is a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);
(b) the grounds on which the penalty is imposed together with any other factors that the court (in the case of an order) or the CMA (in the case of a notice) considers justify the giving of the penalty or its amount;
(c) in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;
(d) how the penalty is to be paid;
(e) the date or dates, no earlier than the end of the applicable period beginning with the date on which the order was served on or the notice was given to the respondent, by which the penalty or (as the case may be) different portions of it are required to be paid;
(f) that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid;
(g) that the respondent has the right to apply under subsection (3) (in the case of an order) or subsection (4) (in the case of a notice);
(h) the rights available to the respondent to appeal in respect of the imposition of the penalty;
(i) the main details of the rights mentioned in paragraphs (g) and (h).
(2) In subsection (1)(e) “the applicable period” means—
(a) in the case of an order or a final false information enforcement notice, the period of 28 days;
(b) in any other case, the period of 60 days.
(3) The respondent may, within 14 days of the date on which an order imposing a monetary penalty is served on the respondent, apply to the court for the court to specify a different date or dates by which the penalty, or different portions of it, are to be paid.
(4) The respondent may, within 14 days of the date on which a notice imposing a monetary penalty is given to the respondent, apply to the CMA to specify a different date or dates by which the penalty, or different portions of it, are required to be paid.
(5) References in subsections (1) and (2) to an order include references to a notice accompanying such an order given under section 158(4).
(6) In the application of this section to Scotland, the references in subsections (1)(e) and (3) to an order being served include service of an extract order in execution of or diligence on the order.
(1) In this Part references to “turnover” of a person include—
(a) turnover both in and outside the United Kingdom;
(b) where the person controls another person, the turnover of that other person;
(c) where the person is controlled by another person, the turnover of that person.
(2) The Secretary of State may by regulations—
(a) make provision for determining when a person is to be treated as controlled by another person for the purposes of subsection (1)(b) and (c);
(b) make provision for determining the turnover of a person for the purposes of this Part.
(3) Regulations under this section may, in particular, make provision as to—
(a) the amounts which are, or which are not, to be treated as comprising a person’s turnover or daily turnover;
(b) the date or dates by reference to which a person’s turnover or daily turnover is to be determined.
(4) Regulations under this section may include provision enabling the court or the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (3)).
(5) Regulations under this section are subject to the negative procedure.
(1) The Secretary of State may by regulations amend any of the following provisions for the purpose of substituting a different monetary amount for an amount of fixed or daily penalty for the time being specified—
(a) section 158(5);
(b) section 168(3)(a) and (b);
(c) section 182(6);
(d) section 190(3)(a) and (b);
(e) section 193(3)(a) and (b);
(f) section 198(4).
(2) Before making regulations under this section the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(3) Regulations under this section are subject to the affirmative procedure.
(1) This section applies where a monetary penalty imposed under Chapter 4, or any part of such a penalty, has not been paid by the date on which it is required to be paid and—
(a) an appeal to a court against the imposition of the penalty has not been brought before the end of the period within which it is required to be brought, or
(b) any such appeal that was brought has been determined, withdrawn or otherwise disposed of.
(2) The CMA may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid.
(3) Any such penalty and interest may be recovered summarily (or, in Scotland, recovered) as a civil debt by the CMA.
(4) Subsection (5) applies where—
(a) a penalty is payable by a person by virtue of a final infringement notice,
(b) the notice also includes directions imposing a requirement on the person to take enhanced consumer measures, and
(c) the enhanced consumer measures that the person is required to take are or include redress measures (see section 221(2)).
(5) In deciding whether to recover the penalty from the person under subsection (2), the CMA must have regard to—
(a) whether any compensation required to be paid to consumers under the redress measures has been, or is likely to be, paid, and
(b) where any such payments have not yet been paid (in full or in part), the effect that recovery of the penalty from the person may have on the person’s ability to make those compensatory payments.
(1) If the whole or any portion of a monetary penalty imposed is not paid by the date by which it is required to be paid, the unpaid balance from time to time carries interest at the statutory rate.
(2) Where an application has been made under section 203(3) or (4), the penalty is not required to be paid until the application has been determined, withdrawn or otherwise disposed of.
(3) Where an application has been made to appeal to a court in respect of a monetary penalty, the penalty is not required to be paid until the application has been determined, withdrawn or otherwise disposed of.
(4) If a portion of a monetary penalty imposed by an order of the court has not been paid by the date required for it, the court may, where it considers it appropriate to do so, by order require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.
(5) If a portion of a monetary penalty imposed by virtue of a notice given by the CMA has not been paid by the date required for it, the CMA may, where it considers it appropriate to do so, by notice require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.
(6) Where on an appeal under section 202 the court substitutes a penalty of a different nature or of a lesser amount, the court may require the payment of interest at the statutory rate on the substituted penalty from whatever date it considers appropriate (which may include a date before the determination of the appeal).
(7) In the case of a monetary penalty imposed on a firm that is not a body corporate, the penalty is to be paid out of the assets or funds of the firm.
(8) Sums received from a person towards payment of a monetary penalty must be paid—
(a) in the case of a penalty imposed by an order of the Court of Session or the Sheriff, into the Scottish Consolidated Fund;
(b) in the case of a penalty imposed by an order of a court in Northern Ireland, into the Consolidated Fund of Northern Ireland;
(c) in any other case, into the Consolidated Fund of the United Kingdom.
(9) In this section—
“monetary penalty” means a monetary penalty imposed under Chapter 3 or 4;
“the statutory rate” means the rate for the time being specified in section 17 of the Judgments Act 1838.
(1) Schedule 17 contains amendments to Schedule 5 to CRA 2015 (investigatory powers), including amendments about—
(a) the giving of monetary penalties in connection with a failure to comply with an information notice;
(b) the giving of information notices to persons outside the United Kingdom;
(c) the means by which information notices are to be given;
(d) entry to premises where documents are accessible from the premises.
(2) In subsection (1) “information notice” means a notice given under paragraph 14 of Schedule 5 to CRA 2015.
(1) The Secretary of State may by regulations amend—
(a) the first column of the Table in Part 1 of Schedule 15 so as to add, remove or vary an entry for an enactment;
(b) the second column of that Table so as to add, remove or vary an entry providing for the authorised enforcers in respect of an enactment;
(c) the third column of that Table in consequence of amendments made under the power conferred by paragraph (a);
(d) the second column of the Table in Part 2 of Schedule 15 so as to add, remove or vary an entry providing for the authorised enforcers in respect of an obligation or rule of law;
(e) Schedule 16 so as to add, remove or vary an entry for an enactment.
(2) The power under subsection (1)(a) or (e) is exercisable so as to add or vary an entry in respect of an enactment only if, and to the extent that, one or more of the following is provided for under or by virtue of the enactment so added or varied—
(a) a duty, prohibition or restriction enforceable by criminal proceedings;
(b) a duty owed to a person that is enforceable by civil proceedings;
(c) a remedy or sanction enforceable by civil proceedings;
(d) an agreement or security relating to a supply of goods, services or digital content to be void or unenforceable to any extent;
(e) a right or remedy exercisable by a person supplying goods, services or digital content to be restricted or excluded;
(f) the avoidance (to any extent) of liability relating to the supply of goods, services or digital content to be restricted or prevented.
(3) It is immaterial for the purposes of subsection (2) whether or not—
(a) a duty, prohibition or restriction exists in relation to consumers as such;
(b) a remedy or sanction is provided for the benefit of consumers as such;
(c) proceedings have been brought in relation to the act or omission concerned;
(d) a person has been convicted of an offence in relation to the act or omission concerned.
(4) Regulations under this section are subject to the affirmative procedure.
(1) The CMA may make rules about procedural and other matters in connection with the carrying out of its direct enforcement functions.
(2) Rules may provide for any of the CMA’s direct enforcement functions to be carried out on its behalf—
(a) by one or more members of the CMA Board (see Part 2 of Schedule 4 to the Enterprise and Regulatory Reform Act 2013);
(b) by one or more members of the CMA Panel (see Part 3 of Schedule 4 to that Act);
(c) by one or more members of staff of the CMA;
(d) jointly by one or more of the persons mentioned in paragraphs (a) to (c).
(3) Rules may (among other things) include provision as to the following matters so far as relating to the carrying out of direct enforcement functions—
(a) the form and manner in which a notice given by the CMA under a direct enforcement function is to be given (subject to section 332);
(b) the person (or persons) to whom the notice is to be given;
(c) if the CMA is required to publish the notice, the manner in which it is to do so;
(d) arrangements to ensure the protection of confidential information;
(e) the disclosure of information to persons under investigation;
(f) the form and manner in which representations may or must be made to the CMA;
(g) the procedure to be followed in relation to the holding of oral hearings as part of an investigation;
(h) the procedure to be followed in cases where a person under investigation accepts that there has been a relevant infringement of a kind to which the investigation relates;
(i) arrangements for the making of, and dealing with, complaints.
(4) In this section and section 211 “rules” means rules made under this section.
(1) In preparing rules the CMA must consult such persons as the CMA considers appropriate.
(2) The CMA may not bring a rule into operation until the rule has been approved by regulations made by the Secretary of State.
(3) The Secretary of State may approve a rule—
(a) in the form in which it is submitted, or
(b) subject to whatever modifications the Secretary of State considers appropriate.
(4) Where the Secretary of State proposes to approve a rule subject to modifications, the Secretary of State must—
(a) inform the CMA of the proposed modifications, and
(b) take into account any comments made by the CMA about the proposed modifications.
(5) The Secretary of State may by regulations—
(a) vary or revoke rules, or
(b) direct the CMA to vary or revoke rules in accordance with the direction.
(6) Subsections (2) to (4) apply to any variation of rules made by the CMA, except where acting under a direction given under subsection (5)(b).
(7) Regulations under this section are subject to the negative procedure.
(1) The CMA must prepare and publish guidance about its general approach to the carrying out of its direct enforcement functions.
(2) Guidance under subsection (1) must provide information about the factors that the CMA will take into account in determining—
(a) whether it will exercise a power under Chapter 4 to accept, vary or release an undertaking;
(b) in cases where the exercise of any such power is exercisable only if the CMA considers a person has acted (or failed to act) without a reasonable excuse, whether a reasonable excuse exists;
(c) in a case where a monetary penalty has not been paid (or paid in full), whether to start proceedings for recovery of the penalty.
(3) Guidance under subsection (1) may include information about any other matters in connection with the carrying out of direct enforcement functions, including the factors that the CMA will take into account in determining whether to give a notice to a person in the carrying out of those functions.
(4) The CMA—
(a) must keep the guidance under review, and
(b) may from time to time revise or replace the guidance.
(5) Before issuing the first guidance under this section the CMA must consult—
(a) the Secretary of State, and
(b) such other persons as the CMA considers appropriate.
(6) The CMA must—
(a) before publishing the first guidance under this section, obtain the approval of the Secretary of State in respect of the proposed guidance;
(b) before revising or replacing any guidance published under this section, inform the Secretary of State of the proposed revision or replacement.
For the purposes of the law relating to defamation, absolute privilege attaches to anything done by the CMA in exercise of its functions under this Part.
216 Enforcement of requirements relating to secondary ticketing
(1) CRA 2015 is amended as set out in subsections (2) to (4).
(2) In section 93 (enforcement of secondary ticketing provisions in Chapter 5 of Part 3)—
(a) after subsection (2) insert—
(2A) The Competition and Markets Authority may also enforce the provisions of this Chapter.
;
(b) in subsection (3) for “and (2)” substitute “, (2) and (2A)”.
(3) In paragraph 11 of Schedule 5 (investigatory powers etc: enforcer’s legislation), in the table, at the appropriate place insert—
The Competition and Markets Authority | The Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735)
.
(4) In paragraph 6 of Schedule 10 (procedure for and appeals against financial penalties imposed under section 93: recovery)—
(a) in sub-paragraph (2) for “local weights and measures” substitute “enforcement”;
(b) in sub-paragraph (4) for “the Department of Enterprise, Trade and Investment” substitute “the enforcement authority which imposed the financial penalty”;
(c) in sub-paragraph (5)(a) after “Investment” insert “or by the Competition and Markets Authority”;
(d) after sub-paragraph (7) insert—
(7A) The Competition and Markets Authority may use the proceeds of a financial penalty for the purposes of any of its functions (whether or not the function is expressed to be a function of the Authority).
(5) In the Breaching of Limits on Ticket Sales Regulations 2018 (S.I. 2018/735), in regulation 5 (offences: prosecution and penalties), after paragraph (2) insert—
(3) The Competition and Markets Authority may enforce these Regulations.
(1) This section provides for how references to the supply of goods or digital content are to be read for the purposes of this Part.
(2) References to a person who supplies goods or digital content are to be read as including references to a person who seeks to supply goods or digital content (and references to a person who receives goods or digital content are to be read in a corresponding way).
(3) The supply of goods includes, in relation to buildings and other structures, construction of them by one person for another.
(4) References to a person supplying goods under—
(a) a hire-purchase agreement,
(b) a credit-sale agreement, or
(c) a conditional sale agreement,
are to be read as including references to a person who conducts any antecedent negotiations relating to the agreement.
(5) The following terms have the meanings given by section 189(1) of the Consumer Credit Act 1974—
“antecedent negotiations”;
“conditional sale agreement”;
“credit sale agreement”;
“hire-purchase agreement”.
(1) This section provides for how references to the supply of services are to be read for the purposes of this Part.
(2) References to a person who supplies services are to be read as including references to a person who seeks to supply services (and references to a person who receives services are to be read in a corresponding way).
(3) The supply of services does not include the provision of services under a contract of service or of apprenticeship.
(4) It is immaterial whether the contract mentioned in subsection (3)—
(a) is express or implied, or
(b) if express, is oral or in writing.
(5) The supply of services includes—
(a) performing for gain or reward any activity other than the supply of goods or digital content;
(b) rendering services to order;
(c) the provision of services by making them available to potential users;
(d) making arrangements for sharing the use of electronic communications apparatus by means of a relevant agreement, within the meaning of paragraph 18 of Schedule 3A to the Communications Act 2003 (the electronic communications code);
(e) agreeing to the full or partial settlement of a consumer’s liabilities or purported liabilities in return for the consumer meeting a demand for payment.
(1) This section applies for the purposes of this Part.
(2) A person (“A”) is an accessory to a commercial practice of another person (“B”) if—
(a) B is a body corporate,
(b) A has a special relationship with B,
(c) the commercial practice is one that B has engaged in or is engaging in, and
(d) the commercial practice takes place with the consent or connivance of A.
(1) This section applies for the purposes of this Part.
(2) A person has a special relationship with a body corporate if the person is—
(a) a controller of the body corporate, or
(b) a director, manager, secretary or other similar officer of the body corporate or a person purporting to act in such a capacity.
(3) A person is a controller of a body corporate if—
(a) the directors of the body corporate, or of another body corporate which is its controller, are accustomed to act in accordance with the person’s directions or instructions, or
(b) either alone or with one or more associates, the person is entitled to exercise or control the exercise of one third or more of the voting power at any general meeting of the body corporate or of another body corporate which is its controller.
(4) A person (“P”) is an associate of an individual if—
(a) P is the spouse or civil partner of the individual;
(b) P is a relative of the individual;
(c) P is a relative of the individual’s spouse or civil partner;
(d) P is the spouse or civil partner of a relative of the individual;
(e) P is a spouse or civil partner of a relative of the individual’s spouse or civil partner;
(f) P lives in the same household as the individual otherwise than merely because P, or the individual, is the other’s employer, tenant, lodger or boarder;
(g) P is the relative of a person who is an associate of the individual by virtue of paragraph (f);
(h) P has at some time in the past fallen within any of paragraphs (a) to (g);
(i) P is in partnership with the individual;
(j) the individual is an associate of an individual with whom P is in partnership.
(5) A person (“P”) is an associate of a body corporate if—
(a) P is a controller of the body corporate, or
(b) P is an associate of a person who is a controller of the body corporate.
(6) A body corporate is an associate of another body corporate if—
(a) the same person is a controller of both;
(b) a person (“P”) is a controller of one and persons who are P’s associates are controllers of the other;
(c) a person (“P”) is a controller of one and P and persons who are P’s associates are controllers of the other;
(d) a group of two or more persons is a controller of each company and the groups consist of the same persons;
(e) a group of two or more persons is a controller of each company and the groups may be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom that person is an associate.
(7) In this section “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant.
(1) References in this Part to “enhanced consumer measures” are references to—
(a) redress measures (see subsection (2)),
(b) compliance measures (see subsection (3)), or
(c) choice measures (see subsection (4)).
(2) Redress measures are—
(a) measures offering compensation or other redress to affected consumers;
(b) in cases where the commercial practice constituting a relevant infringement relates to a contract, measures enabling affected consumers the option to terminate (but not vary) the contract;
(c) in cases where the affected consumers cannot be identified, or cannot be identified without disproportionate cost to the person giving the undertaking in question or against whom the order in question is made, measures intended to be in the collective interests of consumers.
(3) Compliance measures are measures intended to prevent, or reduce the risk of the occurrence or repetition of, the infringing conduct (which may include measures imposed for the purpose of improving compliance with consumer law more generally).
(4) Choice measures are measures intended to enable consumers to choose more effectively between persons supplying goods, services or digital content.
(5) In this section—
(a) references to affected consumers are references to consumers who have suffered loss as a result of the infringing conduct or who have otherwise been affected in any other way by the conduct;
(b) references to the “infringing conduct” are to the conduct that has given rise to the enforcement order or undertaking concerned.
In this Part—
“business” includes—
a trade, craft or profession,
any other undertaking carried on for gain or reward, and
the activities of any government department or local or public authority;
“enforcement order” means an order made under section 156;
“enforcer” means a public designated enforcer or a private designated enforcer;
“goods” includes—
immoveable property, and
rights and obligations;
“interim enforcement order” means an order made under section 159;
“interim online interface order” means an order made under section 162;
“online interface order” means an order made under section 161;
“subsidiary” has the meaning given by section 1159 of the Companies Act 2006;
“supply” includes supply by means of sale, lease, hire or hire purchase.
(1) This Chapter confers protections on consumers from unfair commercial practices.
(2) Section 225 sets out what are unfair commercial practices and prohibits the use and promotion of them.
(3) Sections 226 to 230 provide more detail about commercial practices which are unfair because they are misleading, aggressive or omit material information, or because they contravene the requirements of professional diligence.
(4) Section 231 requires, or confers power on, specified public bodies to enforce the prohibitions in section 225.
(5) Sections 232 to 235 confer rights on consumers in relation to unfair commercial practices and make related provision.
(6) Section 236 sets out what happens when a trader supplies a product to a consumer that the consumer has not requested.
(7) Sections 237 to 241 create criminal offences in relation to unfair commercial practices and make related provision.
(8) Sections 242 to 252 contain miscellaneous and interpretative provisions in relation to this Chapter.
(1) Unfair commercial practices are prohibited.
(2) The promotion of unfair commercial practices in, or in connection with, a code of conduct by—
(a) a person responsible for the content of a code of conduct, or
(b) a person responsible for monitoring compliance with a code of conduct,
is prohibited.
(3) In this Chapter—
“commercial practice” means an act or omission by a trader relating to the promotion or supply of—
the trader’s product to a consumer,
another trader’s product to a consumer, or
a consumer’s product to the trader or another person;
“consumer” means an individual acting for purposes that are wholly or mainly outside the individual’s business;
“trader” means—
a person (“P”) acting for purposes relating to P’s business, or
a person acting in the name of, or on behalf of, P for purposes relating to P’s business.
(4) A commercial practice is unfair if—
(a) it is likely to cause the average consumer to take a transactional decision that the consumer would not have taken otherwise as a result of the practice involving one or more of the following—
(i) a misleading action (see section 226);
(ii) a misleading omission (see section 227);
(iii) an aggressive practice (see section 228);
(iv) a contravention of the requirements of professional diligence (see section 229),
(b) it omits material information from an invitation to purchase (see section 230), or
(c) it is listed in Schedule 20 (commercial practices which are in all circumstances considered unfair).
(5) It is immaterial for the purposes of the definition of “commercial practice” in subsection (3) whether the act or omission takes place—
(a) at the time of the promotion or supply in question, or
(b) before or after that time.
(6) It is immaterial for the purposes of the definition of “trader” in subsection (3)—
(a) in relation to paragraph (a) of that definition, whether P is acting personally or through another person acting in P’s name or on P’s behalf;
(b) in relation to paragraph (b) of that definition, whether or not the purposes relating to P’s business are the only or main purposes for which the person is acting.
(1) For the purposes of this Chapter, a commercial practice involves a misleading action if the practice involves—
(a) the provision of false or misleading information relating to a product, a trader or any other matter relevant to a transactional decision,
(b) an overall presentation which is likely to deceive the average consumer about a matter relating to a product, a trader or any other matter relevant to a transactional decision,
(c) any marketing of a product which creates confusion, or is likely to create confusion, with any product, trade mark, trade name or other distinguishing mark of another trader, or
(d) a failure to comply with a requirement in a code of conduct to which subsection (5) applies in circumstances where the trader asserts that the trader acts in compliance with that code.
(2) In subsection (1)(a), the reference to misleading information includes a reference to information which, although true, is presented in a misleading way.
(3) For the purposes of subsection (1)(b), an overall presentation may be deceiving even if the information it contains is true.
(4) In subsection (1)(c), the reference to another trader is a reference to a trader other than the trader supplying the product that is being marketed.
(5) This subsection applies to a requirement in a code of conduct if—
(a) there is no discretion afforded to the trader in relation to the requirement, and
(b) compliance with the requirement is capable of being verified.
(1) For the purposes of this Chapter, a commercial practice involves a misleading omission if, considering the matters mentioned in subsection (3), the practice—
(a) omits material information,
(b) omits information which the trader is required under any other enactment to give to a consumer as part of the practice, or
(c) fails to identify its commercial intent (unless it is already apparent from the context).
(2) In subsection (1)(a), “material information” means information that the average consumer needs to take an informed transactional decision.
(3) The matters referred to in subsection (1) are—
(a) any limitations resulting from the means of communication used in the commercial practice (including limitations of space or time), and
(b) any steps taken by the trader to overcome those limitations by providing information by other means.
(4) In this section, references to omitting information include providing information—
(a) in a way that is unclear or untimely, or
(b) in such a way that the consumer is unlikely to see it.
(1) For the purposes of this Chapter, a commercial practice involves an aggressive practice if it uses harassment, coercion or undue influence.
(2) In determining whether a commercial practice uses harassment, coercion or undue influence, account must be taken of—
(a) the nature of the practice;
(b) the timing and location of the practice;
(c) whether the practice involves the use of any threatening or abusive language or behaviour;
(d) whether the practice exploits any vulnerability of a consumer (including any vulnerability of a kind mentioned in section 247(4));
(e) whether the practice involves a threat to take action which cannot legally be taken;
(f) whether the practice requires a consumer to take onerous or disproportionate action in order to exercise rights that the consumer has in relation to a product.
(3) In this section—
(a) “coercion” includes the use or threat of physical force;
(b) “undue influence” means exploiting a position of power in relation to a consumer so as to apply pressure in a way which significantly limits the consumer’s ability to make an informed decision.
229 Contravention of the requirements of professional diligence
For the purposes of this Chapter, a commercial practice involves a contravention of the requirements of professional diligence if the practice falls short of the standard of skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either—
(a) honest market practice in the trader’s field of activity, or
(b) the general principle of good faith in the trader’s field of activity.
230 Omission of material information from invitation to purchase
(1) For the purposes of this Chapter, a commercial practice which is an invitation to purchase omits material information if, considering the matters mentioned in subsection (8), it omits any of the information which is—
(a) set out in subsection (2), and
(b) not already apparent from the context.
(2) The information referred to in subsection (1) is—
(a) the main characteristics of the product (to the extent appropriate considering the means used to communicate the invitation to purchase and the nature of the product);
(b) the total price of the product (so far as paragraph (c) does not apply);
(c) if, owing to the nature of the product, the whole or any part of the total price cannot reasonably be calculated in advance, how the price (or that part of it) will be calculated;
(d) the identity of the trader and the identity of any other person on whose behalf the trader is acting;
(e) the business address and, if different, the service address of the trader and any business email address of the trader;
(f) in relation to any other person on whose behalf the trader is acting—
(i) the person’s business address and business email address (if the person has such addresses), and
(ii) if different to the person’s business address, the person’s service address;
(g) any freight, delivery or postal charges, including any taxes, not included in the total price of the product but which the consumer may choose to incur (or where those additional charges or taxes cannot reasonably be calculated in advance, the fact that they may be payable);
(h) for products involving a right of withdrawal or cancellation, the existence of such a right;
(i) to the extent that the trader’s practice in relation to any of the arrangements mentioned in subsection (3) departs from the trader’s published practice in relation to those arrangements, the practice which the trader is currently operating;
(j) any information which the trader is required under any other enactment to give to a consumer as part of an invitation to purchase.
(3) The arrangements referred to in subsection (2)(i) are—
(a) the arrangements for payment;
(b) the arrangements for delivery of the product;
(c) the arrangements for performance;
(d) the arrangements for handling complaints.
(4) For the purposes of subsection (2)(b) the total price of a product includes any fees, taxes, charges or other payments that the consumer will necessarily incur if the consumer purchases the product.
(5) For the purposes of subsection (2)(c) (and subject to the matters mentioned in subsection (8)) the information given must—
(a) be such that it enables the consumer to calculate the total price, and
(b) be set out with as much prominence as any information that is set out in compliance with subsection (2)(b).
(6) For the purposes of subsection (2)(d) “identity”, in relation to a trader, means—
(a) the name of the trader, and
(b) if different, the name under which the trader trades.
(7) For the purposes of subsection (2)(e)—
“business address”, in relation to a person, means—
where the person is a body corporate, the address of its registered or principal office,
where the person is a firm that is not a body corporate, the address of the principal office of the firm, or
in a case where neither paragraph (a) or (b) applies, the address of the person’s principal place of business;
“business email address”, in relation to a person, means any email address used by the person for conducting business;
“service address”, in relation to a person, means the address at which the person will accept service of documents.
(8) The matters referred to in subsection (1) are—
(a) any limitations resulting from the means of communication used in the commercial practice (including limitations of space or time), and
(b) any steps taken by the trader to overcome those limitations by providing information by other means.
(9) In this section, references to omitting information include providing information—
(a) in a way that is unclear or untimely, or
(b) in such a way that the consumer is unlikely to see it.
(10) In this Chapter, “invitation to purchase” means a commercial practice involving the provision of information to a consumer—
(a) which indicates the characteristics of a product and its price, and
(b) which enables, or purports to enable, the consumer to decide whether to purchase the product or take another transactional decision in relation to the product.
(1) It is the duty of every local weights and measures authority in Great Britain to enforce in its area the prohibitions in section 225.
(2) It is the duty of the Department for the Economy in Northern Ireland to enforce the prohibitions in section 225 in Northern Ireland.
(3) The CMA may also enforce the provisions of this Chapter.
(4) In exercising functions under this section, every local weights and measures authority in Great Britain, the Department for the Economy in Northern Ireland and the CMA must have regard to the desirability of encouraging control of unfair commercial practices by such established means as it considers appropriate having regard to all the circumstances of the particular case.
(5) Nothing in this section authorises a local weights and measures authority in Great Britain to bring proceedings in Scotland for an offence.
(1) The Secretary of State may by regulations provide for any of the following descriptions of rights to be exercisable by a consumer who has rights of redress under this Chapter—
(a) a right to unwind in respect of a relevant contract or consumer payment;
(b) a right to a discount in respect of a supply of a product under a relevant contract;
(c) a right to damages in respect of financial loss, distress or physical inconvenience or discomfort.
(2) Regulations under this section may include provision—
(a) about how a right is to be exercised by the consumer;
(b) for an amount of discount mentioned in subsection (1)(b) to be determined in accordance with the regulations;
(c) about the circumstances in which damages mentioned in subsection (1)(c) are or are not payable;
(d) imposing conditions or restrictions on the exercise of a right;
(e) about the consequences of the exercise of a right;
(f) excluding products of a description specified in the regulations from the application of the rights of redress available under this Chapter.
(3) Provision under subsection (2)(e) about the consequences of the exercise of a right may (among other things)—
(a) provide for the termination of a relevant contract;
(b) require the trader to make a refund of an amount determined in accordance with the regulations;
(c) require goods supplied under a relevant contract to be returned or for payment to be made in respect of such goods.
(4) In this section, “relevant contract” means—
(a) a business-to-consumer contract;
(b) a consumer-to-business contract.
(5) Regulations under this section are subject to the affirmative procedure.
(1) This section applies where a trader engages in the unfair commercial practice described at paragraph 31 of Schedule 20.
(2) The consumer is exempted from any obligation to pay for (or provide any other consideration for) the products supplied by the trader.
(3) In the case of a supply of goods that has not been requested, the consumer may, as between the consumer and the trader, use, deal with or dispose of the goods as if they were an unconditional gift to the consumer.
(4) The absence of a response from a consumer following the supply of the product does not constitute consent from the consumer to comply with the trader’s demand for the consumer to—
(a) pay for the product;
(b) return the product;
(c) safely store the product.
(1) A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves a misleading action within section 226(1)(a), (b) or (c) (see section 225(4)(a)(i)).
(2) A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves a misleading omission (see section 225(4)(a)(ii)).
(3) A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice which involves an aggressive practice (see section 225(4)(a)(iii)).
(4) A trader commits an offence if, in breach of section 225(1)—
(a) the trader engages in an unfair commercial practice which involves a contravention of the requirements of professional diligence (see section 225(4)(a)(iv)), and
(b) the trader knows, or is reckless as to whether, the commercial practice involves a contravention of the requirements of professional diligence.
(5) For the purposes of subsection (4) a trader who fails to have regard to whether a commercial practice involves a contravention of the requirements of professional diligence is to be treated as being reckless as to whether it does (regardless of whether the trader has reason to believe that it might).
(6) A trader commits an offence if, in breach of section 225(1), the trader engages in an unfair commercial practice by omitting material information from an invitation to purchase (see section 225(4)(b)).
(7) A trader commits an offence if, in breach of section 225(1), the trader engages in a commercial practice which is unfair by virtue of it being of a description listed in Schedule 20 (see section 225(4)(c)) other than an excluded description.
(8) The following are excluded descriptions for the purposes of subsection (7)—
(a) the description of practice mentioned in paragraph 12 of Schedule 20;
(b) the descriptions of practices mentioned in paragraph 13 of that Schedule;
(c) the description of practice mentioned in paragraph 30 of that Schedule.
238 Defence of due diligence and innocent publication
(1) It is a defence for a person (“the defendant”) charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 to prove—
(a) that the commission of the offence was due to—
(i) the act or omission of another person,
(ii) reliance on information given by another person,
(iii) a mistake or accident, or
(iv) another cause beyond the defendant’s control, and
(b) that the defendant took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by the defendant or any other person under the defendant’s control.
(2) Subsection (3) applies in a case where a person (“the defendant”) has been charged with an offence under subsection (1), (2), (3), (6) or (7) of section 237 alleged to have been committed by the publication of an advertisement.
(3) It is a defence for the defendant to prove that—
(a) the defendant’s business is to publish or arrange for the publication of advertisements,
(b) the defendant received the advertisement for publication in the ordinary course of business, and
(c) the defendant did not know and had no reason to suspect that its publication would amount to the offence with which the defendant is charged.
(4) A defendant is not entitled to rely on the defence provided by subsection (1) by reason of the matters referred to in paragraph (a)(i) or (a)(ii) of that subsection without the permission of the court unless—
(a) the defendant has served on the prosecutor a notice in writing giving such information as was then in the defendant’s possession identifying, or assisting in the identification of, the other person, and
(b) the notice is served on the prosecutor at least seven clear days before the hearing of the proceedings or, in Scotland, at least seven clear days before the trial diet.
(5) In subsection (3), “advertisement”—
(a) means anything published (in any form) for the purpose of promoting a product to the public or a section of the public, and
(b) includes a catalogue, a circular and a price list.
(1) Subsections (2) and (3) apply where a trader—
(a) commits an offence under subsection (1), (2), (3), (6) or (7) of section 237, or
(b) would have committed an offence under that subsection but for a defence under section 238,
and the commission of the offence, or of what would have been the offence, is due to the act or omission of another person “P”.
(2) P commits the offence (whether or not P is a trader and whether or not P’s act or omission is a commercial practice).
(3) P may be charged with and convicted of the offence by virtue of subsection (2) whether or not proceedings are taken against the trader.
(4) In other provisions of this Chapter (including the rest of this section), references to an offence under subsection (1), (2), (3), (6) or (7) of section 237 include references to an offence under that subsection by virtue of subsection (2).
(5) If an offence under section 237 committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on the part of an officer,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) If the affairs of a body corporate are managed by its members, subsection (5) 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.
(7) If an offence under section 237 committed by a Scottish partnership is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on the part of a partner,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(8) In other provisions of this Chapter, references to an offence under section 237 include references to an offence under that section by virtue of subsection (5) or (7).
(9) In subsection (5) a reference to an officer of a body corporate includes a reference to—
(a) a director, manager, secretary or other similar officer, or
(b) a person purporting to act as a director, manager, secretary or other similar officer.
(10) In subsection (7), a reference to a partner includes a person purporting to act as a partner.
A person guilty of an offence under section 237 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 both).
(1) No proceedings for an offence under section 237 may be commenced after the earlier of—
(a) the end of the period of 3 years beginning with the date of the commission of the offence, or
(b) the end of the period of 1 year beginning with the date of discovery of the offence by the prosecutor.
(2) For the purposes of subsection (1)(b)—
(a) a certificate signed by or on behalf of the prosecutor and stating the date on which the prosecutor discovered the offence is conclusive evidence of that fact, and
(b) a certificate stating that matter and purporting to be so signed is to be treated as so signed unless the contrary is proved.
(1) The Secretary of State may by regulations amend Schedule 20 (commercial practices which are in all circumstances considered unfair) so as to—
(a) add a description of a commercial practice;
(b) remove a description of a commercial practice;
(c) amend a description of a commercial practice.
(2) If regulations under subsection (1) amend Schedule 20 so as to add a description of a commercial practice, the regulations must also amend section 237(8) so as to make that practice an excluded description of practice.
(3) The Secretary of State may by regulations amend section 232(7) (rights of redress: prohibited practices) so as to—
(a) add further commercial practices that are unfair under this Chapter to the list of prohibited practices;
(b) remove from the list of prohibited practices any commercial practices that have been added by regulations.
(4) The Secretary of State may by regulations amend section 230(2) (material information in respect of an invitation to purchase) so as to—
(a) add descriptions of information;
(b) modify descriptions of information;
(c) remove descriptions of information added by regulations under this subsection.
(5) Before making regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.
(6) Regulations under this section are subject to the affirmative procedure.