(1) The power conferred by section 38(1) is to be exercised by giving a notice (a “final offer initiation notice”) to the designated undertaking and the third party.
(2) The final offer initiation notice must—
(a) specify the designated undertaking, the third party and the digital activity in respect of which the power is being exercised;
(b) describe the breach of the enforcement order in relation to which the second condition in section 38 is met;
(c) summarise the transaction;
(d) specify a date (the “submission date”) on or before which final offer payment terms are to be submitted to the CMA;
(e) state the period by the end of which the CMA must make any final offer order (see section 41(3));
(f) state the circumstances in which that period may be extended (see section 104).
(3) As soon as reasonably practicable after giving a final offer initiation notice, the CMA must publish a statement which—
(a) includes the information mentioned in subsection (2), and
(b) if the CMA is considering taking any other action relating to any underlying cause of the breach of the enforcement order, includes a summary of, and explanation for considering, that action.
(4) After giving a final offer initiation notice, the CMA may—
(a) change its view of the transaction or the third party, provided that the new transaction or third party remains substantially the same as the previous transaction or third party,
(b) revise any list of joined third parties or grouped third parties, or
(c) change the submission date.
(5) The powers conferred by subsection (4) are to be exercised by giving a revised version of the final offer initiation notice to the designated undertaking and the third party.
(6) Where the power conferred by subsection (4)(b) is being exercised, the reference in subsection (5) to “the third party” includes each person that was a joined third party or a grouped third party prior to the exercise of the power or that is to be a joined third party or a grouped third party after the exercise of the power.
(7) As soon as reasonably practicable after giving a revised version of a final offer initiation notice, the CMA must publish a statement summarising the contents of the revised notice.
(8) To facilitate the submission of final offer payment terms, the CMA may (among other things)—
(a) use an information notice to require that the designated undertaking or the third party give information to the CMA (see section 69);
(b) share information between the designated undertaking and the third party in accordance with section 241 of EA 2002 (statutory functions);
(c) specify the form or manner in which final offer payment terms must be submitted.
(1) This section applies where—
(a) the CMA has exercised its power under section 38(1), and
(b) either—
(i) the CMA has received final offer payment terms from both the designated undertaking and the third party, or
(ii) the CMA has received final offer payment terms from either the designated undertaking or the third party (but not both), and the submission date has passed.
(2) The CMA must, unless section 43(1) applies, make an order (a “final offer order”) requiring that final offer payment terms it has received from the designated undertaking or the third party are to be given effect for the purposes of—
(a) the transaction, and
(b) any transaction between the designated undertaking and the third party which is substantially the same as the transaction.
(3) The CMA must comply with subsection (2) on or before the last day of the period (the “final offer period”) of 6 months beginning with the day on which the final offer initiation notice is given to the designated undertaking and the third party.
(4) The Secretary of State may by regulations amend this section so as to modify the length of the final offer period.
(5) Regulations under subsection (4) are subject to the affirmative procedure.
(1) A final offer order must impose on the designated undertaking such obligations as the CMA considers appropriate for the purpose of—
(a) securing compliance with the requirement imposed by virtue of section 41(2), and
(b) preventing the designated undertaking from making an agreement with the third party which conflicts with that requirement.
(2) At the same time as making a final offer order, the CMA must give the designated undertaking and the third party a notice—
(a) summarising the transaction,
(b) including the reasons for the order, and
(c) enclosing a copy of the order.
(3) As soon as reasonably practicable after making a final offer order, the CMA must publish a statement summarising the contents of the final offer order and the notice given under subsection (2).
(1) The CMA may decide not to make a final offer order in relation to the transaction where it has reasonable grounds to believe that there has been a material change of circumstances since the final offer initiation notice was given.
(2) For the purposes of this section and section 44(3) a material change of circumstances includes an agreement between the designated undertaking and the third party with respect to terms as to payment in relation to the transaction.
(3) Where the CMA decides not to make a final offer order, it must give a notice to that effect to the designated undertaking and the third party.
(4) The notice must include the reasonable grounds referred to in subsection (1).
(5) As soon as reasonably practicable after giving a notice under subsection (3), the CMA must publish a statement summarising the contents of the notice.
(1) A final offer order comes into force at such time as the CMA may specify in the order.
(2) A final offer order ceases to have effect—
(a) when revoked under this section, or
(b) subject to provision made in reliance on section 17 (existing obligations), when the designation to which it relates ceases to have effect.
(3) The CMA may revoke, or partially revoke, a final offer order where it has reasonable grounds to believe that there has been a material change of circumstances since the final offer order was made.
(4) Where the CMA decides to revoke, or partially revoke, a final offer order, it must give a notice to that effect to the designated undertaking and the third party.
(5) The notice must include the reasons for the CMA’s decision.
(6) The notice may include transitional, transitory or saving provision in relation to the revocation, or partial revocation, of the final offer order.
(7) As soon as reasonably practicable after revoking, or partially revoking, a final offer order, the CMA must publish a statement summarising the contents of the notice revoking, or partially revoking, the order.
(8) The fact that a final offer order ceases to have effect does not affect the exercise of any digital markets functions in relation to a breach or possible breach of that order.
The CMA must keep under review—
(a) the extent to which an undertaking to which it has given a final offer order is complying with that order,
(b) the effectiveness of the final offer order,
(c) whether to revoke the final offer order, and
(d) whether to take action in accordance with Chapter 7 (enforcement and appeals) in respect of an undertaking which does not comply with a final offer order.
(1) The CMA may make a pro-competition intervention (a “PCI”) in relation to a designated undertaking where, following a PCI investigation (see section 47), the CMA considers that—
(a) a factor or combination of factors relating to a relevant digital activity is having an adverse effect on competition, and
(b) it would be proportionate to make the PCI for the purposes of remedying, mitigating or preventing the adverse effect on competition.
(2) In considering whether to make a PCI, and the form and content of any PCI, the CMA may have regard to any benefits to UK users or UK customers that the CMA considers have resulted, or may be expected to result, from a factor or combination of factors that is having an adverse effect on competition.
(3) A PCI may take the form of one or both of the following—
(a) an order imposing on the designated undertaking requirements as to how the undertaking must conduct itself, in relation to the relevant digital activity or otherwise (a “pro-competition order”: see section 51);
(b) recommendations made by the CMA to any person exercising functions of a public nature about steps which the CMA considers the person ought to take in respect of the designated undertaking or the digital activity, or otherwise.
(4) A PCI may include provision for the purposes of remedying, mitigating or preventing any detrimental effect on UK users or UK customers that the CMA considers has resulted, or may be expected to result, from the adverse effect on competition to which the PCI relates.
(5) A factor or combination of factors relating to a digital activity has an adverse effect on competition where it prevents, restricts or distorts competition in connection with the relevant digital activity in the United Kingdom.
(1) The CMA may begin an investigation (a “PCI investigation”) in relation to a designated undertaking where it has reasonable grounds to consider that a factor or combination of factors relating to a relevant digital activity may be having an adverse effect on competition.
(2) A PCI investigation is an investigation to enable the CMA to determine—
(a) whether to make a PCI, and
(b) if it concludes that it should make a PCI, the form and content of that PCI.
(3) The CMA may begin a PCI investigation in relation to a designated undertaking even if it has previously made a decision not to make a PCI in respect of that undertaking.
(1) Where the CMA begins a PCI investigation it must give the designated undertaking to which the investigation relates a notice (a “PCI investigation notice”).
(2) The PCI investigation notice must state—
(a) the reasonable grounds mentioned in section 47(1);
(b) the purpose and scope of the PCI investigation;
(c) the period by the end of which the CMA must give the undertaking a notice setting out its decision as a result of the investigation (see section 50(1));
(d) the circumstances in which that period may be extended (see section 104).
(3) The CMA may give the undertaking one or more revised versions of the PCI investigation notice if it changes its view of the purpose and scope of the investigation, provided that the purpose and scope of the investigation remains substantially the same.
(4) As soon as reasonably practicable after giving a PCI investigation notice or a revised version of the PCI investigation notice, the CMA must publish the notice or the revised version of the notice.
(1) Before making a final decision (a “PCI decision”) on whether to make a PCI as a result of a PCI investigation, the CMA must—
(a) carry out a public consultation on its proposed decision, and
(b) bring the public consultation to the attention of such persons as it considers appropriate.
(2) For the purposes of the consultation the CMA must publish a statement setting out—
(a) the CMA’s findings as a result of the investigation, and
(b) a description of any PCI which the CMA is considering making.
(1) The CMA must give the designated undertaking to which a PCI investigation relates a notice of the PCI decision resulting from the investigation on or before the last day of the period (the “PCI investigation period”) of 9 months beginning with the day on which the PCI investigation notice is given to the undertaking.
(2) The notice must—
(a) state the CMA’s findings as a result of the PCI investigation,
(b) describe any PCI which the CMA intends to make, and
(c) include reasons for the CMA’s findings and decision.
(3) The giving of a revised version of the PCI investigation notice under section 48(3) does not change the day on which the PCI investigation period begins.
(4) The CMA must make any PCI within the period of 4 months beginning with the day on which the CMA gives the notice under subsection (1).
(5) The CMA may extend the period mentioned in subsection (4) by up to 2 months where it considers that there are special reasons for doing so.
(6) Where the CMA decides not to make a PCI having previously indicated in a notice under subsection (1) that it intended to make a PCI, the CMA must give the undertaking a further notice—
(a) stating the CMA’s decision, and
(b) including reasons for the decision.
(7) As soon as reasonably practicable after giving a notice under subsection (1) or (6), the CMA must publish a copy of the notice.
(1) A pro-competition order may include any provision that may be included in an enforcement order under section 161 of EA 2002 (final orders following market investigation references; and see section 164 of and Schedule 8 to EA 2002 on the provision that may be included).
(2) For the purposes of subsection (1), Schedule 8 to EA 2002 (provision that may be contained in certain enforcement orders) has effect as if—
(a) the reference in paragraph 8(2) to “the relevant report” were to the notice under section 50(1) of this Act;
(b) paragraphs 20A to 20BA were omitted.
(3) A pro-competition order may include provision imposing requirements on an undertaking on a trial basis for the purpose of assisting the CMA in establishing requirements that would be effective in remedying, mitigating or preventing—
(a) the adverse effect on competition to which the order relates;
(b) any detrimental effect on UK users or UK customers resulting from, or expected to result from, the adverse effect on competition.
(4) The provision that may be made in reliance on subsection (3) includes provision requiring an undertaking to act differently in respect of different users or customers (and such provision may be by reference to a description of users or customers, to absolute numbers of users or customers, or to a proportion of the undertaking’s total number of users or customers).
(5) A pro-competition order must contain provision in accordance with section 55(3) (duty to ensure order contains date of next review).
(6) As soon as reasonably practicable after making a pro-competition order, the CMA must publish the order.
(1) The CMA may, by making a further pro-competition order, replace a pro-competition order where it considers that it is appropriate to do so, having regard in particular to—
(a) the effectiveness of the pro-competition order, or of particular provisions in the pro-competition order, in remedying, mitigating or preventing the adverse effect on competition and, where applicable, any detrimental effect on UK users or UK customers identified in the PCI investigation, and
(b) any change of circumstances since the pro-competition order was made.
(2) The CMA may, in particular, replace a pro-competition order so as to—
(a) replace requirements imposed by virtue of that order on a trial basis, or
(b) impose requirements on an undertaking that are similar to or informed by one or more requirements previously imposed on that undertaking, or on a different undertaking, by virtue of another pro-competition order on a trial basis.
(3) In this Chapter—
(a) references to making a replacement order are to revoking a pro-competition order (see section 53) made following a PCI investigation and making a new pro-competition order in reliance on the findings of that PCI investigation, and
(b) references to a “replacement order” are to a pro-competition order made in reliance on subsection (1).
53 Duration and revocation etc of pro-competition orders
(1) A pro-competition order comes into force at such time as the CMA may specify in the order.
(2) A pro-competition order ceases to have effect—
(a) when revoked under this section, or
(b) subject to provision made in reliance on section 17 (existing obligations), when the designation to which it relates ceases to have effect.
(3) The CMA may revoke a pro-competition order where it considers that it is appropriate to do so, having regard in particular to any change of circumstances since the pro-competition order was made.
(4) Where the CMA decides to revoke a pro-competition order, it must give a notice to that effect to the designated undertaking to which the order relates.
(5) The notice may include transitional, transitory or saving provision in relation to the revocation of the pro-competition order.
(6) The CMA must publish the notice as soon as reasonably practicable after giving it.
(7) Where a pro-competition order resulting from a PCI investigation is revoked without being replaced, the CMA may not make a new pro-competition order in reliance on the same PCI investigation.
(8) The fact that a pro-competition order ceases to have effect does not affect the exercise of any functions in relation to a breach or possible breach of that order.
(1) The CMA must carry out a public consultation on the terms of any pro-competition order before making it (subject to subsection (4)).
(2) The duty to consult imposed by subsection (1) may be satisfied by consultation on a proposed PCI decision in a case where—
(a) a draft pro-competition order was published for the purposes of that consultation, and
(b) the CMA proposes to make a pro-competition order that is the same or materially the same as the draft pro-competition order.
(3) Before revoking a pro-competition order, the CMA must (subject to subsection (4))—
(a) carry out a public consultation on the proposed revocation, and
(b) bring the public consultation to the attention of such persons as it considers appropriate.
(4) The duties in subsections (1) and (3) do not apply in relation to the making of a replacement order which, in the opinion of the CMA, is not materially different from the order which it replaces.
(1) The CMA must carry out a review of a pro-competition order, including a replacement order, to determine whether to—
(a) revoke it without making a replacement order, or
(b) make a replacement order.
(2) Each time the CMA makes a pro-competition order, including a replacement order, it must identify a date by which it will carry out the review under subsection (1).
(3) The CMA must secure that the date is specified in the order.
(4) The CMA must keep under review—
(a) the effectiveness of a pro-competition order;
(b) the extent to which an undertaking subject to a pro-competition order is complying with it;
(c) whether to take action in accordance with Chapter 7 (enforcement and appeals) in respect of any undertaking that breaches a pro-competition order.
(1) The CMA may accept an appropriate commitment from a designated undertaking as to its conduct in respect of an adverse effect on competition or a detrimental effect on UK users or UK customers that the CMA considers has resulted, or may be expected to result, from an adverse effect on competition.
(2) A commitment is appropriate where the CMA considers that compliance with the commitment by the undertaking would contribute to or otherwise be of use in remedying, mitigating or preventing—
(a) the adverse effect on competition, or
(b) the detrimental effect on UK users or UK customers.
(3) Following the acceptance of a commitment by the CMA as to the conduct of an undertaking—
(a) the undertaking that gave the commitment must comply with it at all times when it is in force, and
(b) so far as relating to the conduct, the CMA may give a notice to the undertaking—
(i) ending a PCI investigation (if it has begun one) without making a PCI decision, or
(ii) changing the scope of a PCI investigation.
(4) As soon as reasonably practicable after giving a notice under subsection (3)(b), the CMA must publish a statement summarising the contents of the notice.
(5) The acceptance of a commitment does not prevent—
(a) a PCI investigation from continuing so far as it relates to conduct other than that to which the commitment relates, or
(b) the CMA beginning a new PCI investigation in relation to the conduct to which the commitment relates where it has reasonable grounds—
(i) to believe that there has been a material change of circumstances since the commitment was accepted,
(ii) to suspect that the undertaking has not complied with one or more of the terms of the commitment, or
(iii) to suspect that information which led it to accept the commitment was incomplete, false or misleading in a material particular.
(6) A commitment under this section comes into force when a notice of its acceptance is published by the CMA.
(7) A commitment under this section ceases to have effect—
(a) subject to provision made in reliance on section 17 (existing obligations)—
(i) in accordance with any terms of the commitment about when it is to cease to have effect, or
(ii) when the designation to which the commitment relates ceases to have effect, or
(b) when the undertaking is released from the requirement to comply with the commitment.
(8) The following provisions apply in relation to commitments under this section as they apply in relation to commitments under section 36—
(a) subsections (7) to (10) of section 36;
(b) section 37.
(1) A relevant person (in this Chapter, “P”) must report an event to which subsection (2) or (3) applies (a “reportable event”) to the CMA before the event takes place.
(2) This subsection applies to an event where—
(a) the event results in P having qualifying status (see section 58) in respect of shares or voting rights in relation to a UK-connected body corporate, and
(b) the value of all consideration (see section 59) provided by P, whether before or as part of the event, for shares or voting rights in the UK-connected body corporate is at least £25 million.
(3) This subsection applies to an event which consists of the formation by P and at least one other person of a body corporate (in this Chapter, a “joint venture vehicle”) where—
(a) P expects or intends that the joint venture vehicle will be a UK-connected body corporate,
(b) P has qualifying status in respect of shares or voting rights in relation to the joint venture vehicle, and
(c) the total value of—
(i) all capital and assets contributed by P to the joint venture vehicle when it is formed, and
(ii) all other consideration provided by P, whether directly or indirectly, in relation to the formation of the joint venture vehicle,
is at least £25 million.
(4) In this Chapter, “relevant person” means—
(a) a designated undertaking, or
(b) where a designated undertaking is part of a group, any member of that group.
(5) In this Chapter, a “UK-connected body corporate” is any body corporate (wherever established or recognised) which—
(a) carries on activities in the United Kingdom, or
(b) supplies goods or services (whether for consideration or otherwise) to a person or persons in the United Kingdom.
(6) For the purposes of subsection (5), anything done by a subsidiary of a body corporate is to be treated as being done by the body corporate.
(7) The reference in subsection (3) to an “other person” is to a person who is not—
(a) the designated undertaking or part of the designated undertaking, or
(b) where the designated undertaking is part of a group, a member of that group.
(8) The duty to report an event under subsection (1) is subject to provision made by or under regulations under section 67.
(9) For steps that the CMA may take in relation to a possible merger, see—
(a) section 33 of EA 2002 (duty to make references in relation to anticipated mergers), and
(b) section 72 of that Act (initial enforcement orders).
(1) For the purposes of section 57(2), an event results in P having qualifying status in respect of shares or voting rights in relation to a UK-connected body corporate where the event results in the percentage of the shares or, as the case may be, the voting rights that P holds in the body corporate increasing—
(a) from less than 15% to 15% or more,
(b) from 25% or less to more than 25%, or
(c) from 50% or less to more than 50%.
(2) For the purposes of section 57(3), P has qualifying status in respect of shares or voting rights in relation to a joint venture vehicle where the event results in P holding at least 15% of the shares or, as the case may be, voting rights in the joint venture vehicle.
(3) In subsections (1) and (2), references to holding a percentage of shares are—
(a) in the case of a body corporate that has a share capital, to holding shares comprised in the issued share capital of the body corporate of a nominal value (in aggregate) of that percentage of the share capital,
(b) in the case of a body corporate that does not have a share capital, to holding a right to a share of that percentage of the capital or profits of the body corporate, and
(c) in the case of a limited liability partnership, to holding a right to a share of that percentage of any surplus assets of the partnership on a winding up.
(4) For the purposes of subsection (3)(c), to the extent that rights to share in any surplus assets of the limited liability partnership on a winding up are not expressly provided for, each member of the partnership is to be treated as holding the right to an equal share of such assets.
(5) In subsections (1) and (2), references to voting rights are—
(a) in the case of a body corporate that has a share capital, to the rights conferred on shareholders in respect of their shares to vote at general meetings of the body corporate on all or substantially all matters, and
(b) in the case of a body corporate that does not have a share capital, to the rights conferred on members to vote at general meetings of the body corporate on all or substantially all matters,
and, in the case of a body corporate that does not have general meetings at which matters are decided by such votes, include any rights in relation to the body corporate that have the equivalent effect.
(6) A person is to be treated for the purposes of this Chapter as acquiring an interest or right (to the extent that the person would not otherwise be regarded as doing so) where the interest or right becomes treated as held by the person by virtue of Schedule 2.
(1) The references in section 57(2)(b) to the value of all consideration provided by P for shares or voting rights in a UK-connected body corporate is a reference to the value of all consideration provided by P, whether directly or indirectly, for shares or voting rights in the body corporate in all transactions which result in P holding shares or voting rights in the body corporate (whether or not the transaction is an event within section 57(2)).
(2) In this Chapter, references to “consideration” are to fees, remuneration, assets of any description, liabilities assumed and any other kind of consideration, however provided, and include conditional and deferred consideration.
(3) The Secretary of State may by regulations make further provision about how the value of—
(a) consideration,
(b) capital, or
(c) assets,
is to be calculated for the purposes of this Chapter.
(4) The Secretary of State must consult the CMA before making regulations under subsection (3).
(5) Regulations under subsection (3) are subject to the negative procedure.
(1) The CMA must by notice make provision setting out—
(a) the information which a report for the purposes of section 57(1) must contain;
(b) the form in which such a report must be made.
(2) The notice may not require a report to contain information other than information which the CMA considers necessary to allow it to determine whether to—
(a) begin an investigation for the purposes of deciding whether to make a reference under section 33 of EA 2002 in relation to a reportable event, or
(b) make an initial enforcement order under section 72 of that Act in relation to a reportable event.
(3) The CMA may from time to time replace the notice.
(4) The CMA must publish any notice or replacement notice which it makes under this section.
(5) The CMA must consult—
(a) the Secretary of State, and
(b) such other persons as it considers appropriate,
before making or replacing a notice under this section.
(1) Two or more persons may comply with the duty in section 57(1) by making a joint report to the CMA.
(2) For the purposes of this Chapter, where a designated undertaking is part of a group—
(a) anything which a member of a group does or fails to do is to be treated as being done or not done by each member of the group;
(b) each member of a group is to be treated as providing the combined consideration provided by all members of the group;
(c) each member of a group is to be treated as holding the combined interests or rights of all members of the group.
(3) Schedule 2 makes further provision about cases in which a person is to be treated for the purposes of this Chapter as holding an interest or right.
(4) The duty to make a report under section 57(1) does not apply—
(a) in relation to a reportable event which does not differ in any material respect from an event which has already been reported under section 57(1);
(b) in relation to a reportable event so far as it consists of “notified arrangements” within the meaning of section 96(6) of EA 2002;
(c) in relation to a reportable event so far as the CMA has informed P that it has begun an investigation for the purposes of deciding whether it has to make a reference under section 33 of EA 2002 (duty to make references in relation to anticipated mergers) in relation to a matter that does not differ in any material respect from the reportable event;
(d) in relation to a reportable event so far as the Secretary of State has given the CMA an intervention notice under section 42 of EA 2002 (intervention by the Secretary of State in certain public interest cases) in relation to a relevant merger situation that does not differ in any material respect from the reportable event;
(e) in relation to a reportable event so far as the Secretary of State has given the CMA a special intervention notice under section 59 of EA 2002 (intervention by the Secretary of State in special public interest cases) in relation to a special merger situation that does not differ in any material respect from the reportable event.
(5) This Chapter does not require any steps to be taken in relation to an event where, after it has been reported to the CMA—
(a) the Secretary of State gives the CMA an intervention notice under section 42 of EA 2002 in relation to a relevant merger situation that does not differ in any material respect from the event;
(b) the Secretary of State gives the CMA a special intervention notice under section 59 of EA 2002 in relation to a special merger situation that does not differ in any material respect from the event;
(c) the CMA makes an initial enforcement order under section 72 of EA 2002 imposing obligations, prohibitions or restrictions in relation to the event;
(d) the undertaking to which the event relates ceases to be a designated undertaking.
(1) Where the CMA receives a report under section 57(1), the CMA must, within the period of 5 working days beginning with the first working day after the day on which it receives the report, give a notice to the person that made the report confirming whether the CMA accepts that the report is sufficient.
(2) Where the CMA does not accept that a report is sufficient it must, in its notice under subsection (1), include reasons for its decision.
(3) The CMA may not decide that a report is not sufficient where the report—
(a) contains all information required by notice under section 60(1)(a), and
(b) is made in the form required by notice under section 60(1)(b).
(4) A person who makes a report under section 57(1) may withdraw that report at any time before the CMA gives notice that it has accepted that the report is sufficient.
(5) Where a report is withdrawn, this Chapter applies as if the event to which it related had not been reported to the CMA.
(1) A person to whom the duty in section 57(1) applies in relation to a reportable event must not allow the event to take place—
(a) without a report in relation to the event having been given to the CMA under section 57(1), or
(b) before the end of the waiting period in relation to the event.
(2) The waiting period in relation to a reportable event is the period of 5 working days beginning with the first working day after the day on which the CMA gives the person that made a report a notice under section 62(1) confirming that the CMA accepts that the report relating to the event is sufficient.
(3) If a reportable event takes place in contravention of subsection (1), each person to whom the duty in section 57(1) applied in relation to the event is to be treated as having breached subsection (1).
(4) The CMA may—
(a) give its consent to a reportable event happening before the end of the waiting period;
(b) revoke that consent before the reportable event happens.
(5) Subsection (1) does not apply in relation to a reportable event where the CMA gives and does not revoke consent under subsection (4) in relation to a reportable event.
(6) Section 95 of EA 2002 (rights to enforce statutory restrictions) applies in relation to the obligation to comply with subsection (1) as it applies in relation to the obligation to comply with section 77(2) or (3) or 78(2) of that Act.
Where a reportable event results from an agreement providing for P to acquire shares or voting rights, or to form a joint venture vehicle together with at least one other person, the event is to be treated as taking place for the purposes of section 57(1) and section 63(1) when P becomes unconditionally obliged to acquire the shares or voting rights, or to form the joint venture vehicle.
65 Authorisation for one person to act for another
(1) P may authorise another person to make a report under section 57(1) and receive the notice under section 62(1) which relates to the report on P’s behalf by giving a notice of the authorisation to the CMA.
(2) P may revoke an authorisation made under this section by giving a notice to that effect to the CMA.
(3) A notice under subsection (1) or (2) must be signed by an officer of P.
(4) In this section, references to an “officer” of an undertaking are to an officer of a body corporate that is, or is comprised in, the undertaking.
66 Applications for review of decisions relating to mergers
Section 120 of EA 2002 (review of decisions under Part 3 of EA 2002: mergers) applies in relation to a decision made by the CMA in connection with its functions under this Chapter, other than a decision about the imposition of a penalty under section 85(4) or 87, as it applies in relation to decisions listed in subsection (1A) of that section.
(1) The Secretary of State may by regulations make provision about the duty to report a reportable event.
(2) The Secretary of State must consult the CMA before making regulations under subsection (1).
(3) Regulations under subsection (1) may (among other things) make provision—
(a) varying, adding or removing circumstances in which the duty to make a report applies;
(b) varying the period in section 62(1);
(c) varying the waiting period in section 63;
(d) about exemptions from the duty to make a report;
(e) varying, adding or removing circumstances in which one person may act on behalf of another under section 65;
(f) modifying how section 332 applies for the purposes of this Chapter or Schedule 2;
(g) conferring functions on the CMA in relation to the duty to report, including power to make provision by notice or general or specific directions about a matter mentioned in paragraph (d);
(h) amending this Chapter or Schedule 2.
(4) Regulations under subsection (1) that contain provision made in reliance on any of paragraphs (a), (b), (c), (d), (e) or (h) of subsection (3), whether alone or with other provision, are subject to the affirmative procedure.
(5) Any other regulations under subsection (1) are subject to the negative procedure.
The CMA must keep under review—
(a) the extent to which persons comply with provisions made by, under or by virtue of this Chapter, and
(b) the appropriateness of taking action—
(i) in accordance with section 95 of EA 2002 (rights to enforce statutory restrictions) in respect of any person to whom section 63(1) applies, and
(ii) in accordance with Chapter 7 (enforcement and appeals) in respect of any person that does not comply with provisions made by, under or by virtue of this Chapter.
(1) For the purpose of exercising, or deciding whether to exercise, any of its digital markets functions, the CMA may require a person (“P”) to give specified information to it where it considers that the information is relevant to a digital markets function.
(2) The power conferred by subsection (1) is to be exercised by giving P a notice (an “information notice”).
(3) The CMA must include in an information notice—
(a) the time and place at which the specified information must be given to the CMA;
(b) the manner and form in which the information must be given to the CMA;
(c) information about the possible consequences of not complying with the notice.
(4) The power under this section to require P to give information to the CMA includes the power to—
(a) take copies of or extracts from information;
(b) require P to obtain or generate information;
(c) require P to collect or retain information that they would not otherwise collect or retain;
(d) if any specified information is not given to the CMA, require P to state, to the best of their knowledge and belief, both where that information is and why it has not been given to the CMA.
(5) For the purposes of subsection (4)(b), the CMA may include in an information notice—
(a) a requirement for P to vary their usual conduct (whether in relation to some or all users or potential users of any service or digital content that P provides);
(b) a requirement for P to perform a specified demonstration or test.
(6) In this section, “specified” means—
(a) specified, or described, in the information notice, or
(b) falling within a category which is specified, or described, in the information notice.
(7) The powers conferred by this section are exercisable in relation to information whether it is stored within or outside the United Kingdom.
(1) Where the CMA gives an information notice to a designated undertaking or an undertaking that is the subject of a breach investigation, the CMA may include in the notice a requirement that the undertaking must name, in response to the notice, an individual who—
(a) the undertaking considers to be a senior manager of the undertaking, and
(b) may reasonably be expected to be in a position to ensure compliance with the requirements of the notice.
(2) Where the CMA imposes a requirement to name an individual, the information notice must require the undertaking to inform the individual about the consequences for the individual of any failure by the undertaking to comply with the notice (see section 87).
(3) An individual can be considered to be a senior manager of an undertaking only if the individual plays a significant role in—
(a) making decisions about how the undertaking’s relevant activities are to be managed or organised, or
(b) managing or organising the undertaking’s relevant activities.
(4) An undertaking’s “relevant activities” are activities relating to the undertaking’s compliance with requirements imposed on it by or under this Part.
(1) The CMA may exercise the powers in this section where it considers that a designated undertaking or an undertaking that is the subject of a breach investigation—
(a) has not complied with the requirements of an information notice (see section 69), or
(b) has not complied with the duty to assist a skilled person with the preparation of a report (see section 79(12)).
(2) The CMA may access business premises, equipment, services, information or individuals in order to—
(a) supervise the obtaining, generation, collection or retention of information by the undertaking,
(b) observe the undertaking’s conduct in relation to users, or
(c) observe a demonstration or test performed by the undertaking,
for the purpose of securing compliance with requirements imposed on the undertaking under section 69 or section 79(12).
(3) Where the CMA requires access under subsection (2), it must give the undertaking a notice specifying—
(a) the access that it requires,
(b) a date by which the access must be provided, and
(c) the manner in which the access must be provided (which may be remote).
(4) The undertaking must give the CMA the access specified in the notice under subsection (3).
(5) The powers conferred by this section are not exercisable in relation to premises, equipment or individuals outside the United Kingdom.
(6) But the powers conferred by this section are exercisable in relation to information and services whether stored or provided within or outside the United Kingdom.
(7) In this Chapter, “business premises” means premises (or any part of premises) not used as a dwelling.
(1) If the CMA considers that an individual (“X”) has information relevant to a digital markets investigation, the CMA may give a notice to X requiring X to answer questions with respect to any matter relevant to that digital markets investigation—
(a) at a place or in a manner (which may be remote) specified in the notice, and
(b) either at a time specified in the notice or on receipt of the notice.
(2) The CMA must include in the notice—
(a) details of the digital markets investigation;
(b) information about the possible consequences of not complying with the notice.
(3) Where X is connected to (see section 118(3)) the undertaking that is the subject of the digital markets investigation, the CMA must give a copy of the notice under subsection (1) to the undertaking.
(4) The CMA must comply with the requirement under subsection (3)—
(a) at the time the notice is given to X, or
(b) where that is not practicable, as soon as reasonably practicable after the notice is given to X.
(5) The CMA, or any person nominated by it, may take evidence in answer to questions under subsection (1) on oath, and for that purpose may administer oaths.
(6) The powers conferred by this section are not exercisable in relation to an individual outside the United Kingdom.
(1) A statement by X in response to a requirement imposed by virtue of section 72 (a “section 72 statement”) may only be used in evidence against X—
(a) on a prosecution for an offence under section 93 or 94;
(b) on a prosecution for some other offence in a case falling within subsection (2).
(2) A prosecution falls within this subsection if, in the proceedings—
(a) in giving evidence, X makes a statement inconsistent with the section 72 statement, and
(b) evidence relating to the section 72 statement is adduced, or a question relating to it is asked, by or on behalf of X.
74 Power to enter business premises without a warrant
(1) For the purposes of a breach investigation, the CMA may authorise an officer of the CMA (“an investigating officer”) to enter any business premises (see section 71(7)) and exercise the powers in subsection (5) if the CMA has reasonable grounds to suspect that information is on or accessible from the premises that is relevant to the breach investigation.
(2) No investigating officer is to enter any premises in the exercise of their powers under this section unless they have given to the occupier of the premises a notice which—
(a) gives at least two working days’ notice of the intended entry,
(b) describes the subject matter and purpose of the breach investigation, and
(c) includes information about the possible consequences of not complying with the notice.
(3) Subsection (2) does not apply if—
(a) the CMA has a reasonable suspicion that the premises are, or have been, occupied by the undertaking which is the subject of the breach investigation, or
(b) the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
(4) In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—
(a) evidence of their authorisation, and
(b) a document containing the information referred to in paragraphs (b) and (c) of subsection (2).
(5) An investigating officer may, in addition to entering any premises—
(a) take with them such equipment as appears to them to be necessary;
(b) require any person on the premises to—
(i) give information to the officer which the officer considers relevant to the breach investigation;
(ii) if any required information is not given to the officer, state, to the best of the person’s knowledge and belief, where that information may be found;
(c) take copies of, or extracts from, any information given to an investigating officer;
(d) take any steps which appear to be necessary for the purpose of preserving or preventing interference with any information which the officer considers relevant to the breach investigation.
(6) Any information which is given to an investigating officer under subsection (5) must be in a form—
(a) in which it can be taken away, and
(b) which is visible and legible or from which it can be readily be generated in a visible and legible form.
(7) The powers conferred by this section are not exercisable in relation to premises outside the United Kingdom.
(8) But the powers conferred by this section are exercisable in relation to information whether it is stored within or outside the United Kingdom.
(1) On an application made to it by the CMA for the purposes of a breach investigation, the court or the Tribunal may issue a warrant if it is satisfied that—
(a) there are reasonable grounds for suspecting that there is information on or accessible from any premises which is relevant to the breach investigation (“information of the relevant kind”), and
(b) one or both of the following applies—
(i) the exercise by the CMA of another digital markets investigation power has not resulted in the CMA being given the information of the relevant kind;
(ii) there are reasonable grounds for suspecting that there is no other digital markets investigation power the exercise of which would result in the CMA being given the information of the relevant kind.
(2) A warrant under this section authorises a named officer of the CMA (“the authorised officer”), and any other of the CMA’s officers whom the CMA has authorised in writing to accompany the authorised officer, to—
(a) enter the premises specified in the warrant, using such force as is reasonably necessary;
(b) take onto the premises such equipment as appears to the authorised officer to be necessary;
(c) search the premises for information appearing to be information of the relevant kind;
(d) operate any equipment found on the premises for the purpose of producing information;
(e) require any person on the premises to provide such assistance as the authorised officer may reasonably require (including providing passwords or encryption keys and operating equipment on the premises);
(f) require any person on the premises to give information to the authorised officer;
(g) require any person on the premises to state, to the best of their knowledge and belief, where information appearing to be of the relevant kind may be found;
(h) take copies of, or extracts from, any information appearing to be information of the relevant kind;
(i) take possession of any information appearing to be information of the relevant kind that is produced under paragraph (d) or given to the authorised officer under paragraph (f);
(j) take possession of any other information appearing to be information of the relevant kind if—
(i) such action appears to be necessary for preserving the information or preventing interference with it, or
(ii) it is not reasonably practicable to take copies of the information on the premises;
(k) take any other steps which appear to be necessary for the purpose of preserving any information appearing to be information of the relevant kind or preventing interference with it.
(3) Any information which is given to an investigating officer under subsection (2) must be in a form—
(a) in which it can be taken away, and
(b) which is visible and legible or from which it can be readily be generated in a visible and legible form.
(4) A warrant under this section may authorise persons specified in the warrant to accompany the authorised officer who is executing it.
(5) A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.
(6) Any information which the CMA obtains under subsection (2) may be retained for a period of three months.
(7) For the purposes of this section and section 76—
“domestic premises” means premises (or any part of premises) that are used as a dwelling and are—
premises also used in connection with the affairs of an undertaking or, where the undertaking is part of a group, a member of that group, or
premises where information relating to the affairs of an undertaking or, where the undertaking is part of a group, a member of that group, is located;
“occupier”, in relation to any premises, means a person whom the authorised officer reasonably believes is the occupier of those premises;
“premises” includes business premises (see section 71(7)) and domestic premises.
76 Power to enter premises under a warrant: supplementary
(1) A warrant under section 75 must describe—
(a) the subject matter and purpose of the breach investigation, and
(b) the offence created by section 95.
(2) The powers conferred by section 75 are to be exercised on production of the warrant issued under that section.
(3) If there is no one at the premises when the authorised officer proposes to execute the warrant they must, before executing it—
(a) take reasonable steps to inform the occupier of the intended entry, and
(b) if the occupier is informed, afford them or their legal or other representative a reasonable opportunity to be present when the warrant is executed.
(4) If the authorised officer is unable to inform the occupier of the intended entry they must, when executing the warrant, leave a copy of it in a prominent place on the premises.
(5) On leaving any premises which they have entered by virtue of a warrant under section 75, the authorised officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as they found them.
(6) The powers conferred by section 75 are not exercisable in relation to premises outside the United Kingdom.
(7) But the powers conferred by section 75 are exercisable in relation to information whether it is stored within or outside the United Kingdom.
77 Amendments to the Criminal Justice and Police Act 2001
(1) The Criminal Justice and Police Act 2001 is amended as follows.
(2) In section 50 (additional powers of seizure from premises), at the end insert—
(7) Without prejudice to any power conferred by this section to take a copy of any document, nothing in this section, so far as it has effect by reference to the power to take copies of, or extracts from, information under section 75(2)(h) of the Digital Markets, Competition and Consumers Act 2024, is to be taken to confer any power to seize any information.
(3) In section 57 (retention of seized items), in subsection (1), at the end insert—
(v) section 75(6) of the Digital Markets, Competition and Consumers Act 2024.
(4) In section 63 (powers of seizure: copies), in subsection (1), at the end insert—
(d) for the purposes of this Part, except sections 50 and 51, the powers in section 75(2)(d) and (f) of the Digital Markets, Competition and Consumers Act 2024 are to be treated as powers of seizure, and references to seizure and to seized property are to be construed accordingly.
(5) In section 64 (meaning of “appropriate judicial authority”), in subsection (3), in paragraph (a), at the end insert—
(iv) section 75(2) of the Digital Markets, Competition and Consumers Act 2024.
(6) In section 65 (meaning of “legal privilege”), after subsection (3A) insert—
(3B) In relation to property which has been seized in exercise, or purported exercise, of—
(a) the power of seizure conferred by section 75(2) of the Digital Markets, Competition and Consumers Act 2024, or
(b) so much of any power of seizure conferred by section 50 as is exercisable by reference to that power,
references in this Part to an item subject to legal privilege are to be read as references to a privileged communication within the meaning of section 81 (privileged communications) of that Act.
(7) In section 66 (general interpretation of Part 2), in subsection (5), after paragraph (i) insert—
(j) section 75(2)(j) of the Digital Markets, Competition and Consumers Act 2024;
(8) In Part 1 of Schedule 1 (powers of seizure to which section 50 of that Act applies), at the end insert—
73W Digital Markets, Competition and Consumers Act 2024
Each of the powers of seizure conferred by section 75(2)(i) and (j) of the Digital Markets, Competition and Consumers Act 2024 (seizure of information for the purposes of a breach investigation).
(1) An application for a warrant under section 75 must be made—
(a) in the case of an application to the court, in accordance with rules of court;
(b) in the case of an application to the Tribunal, in accordance with Tribunal rules.
(2) In Schedule 4 to EA 2002 (tribunal: procedure), in paragraph 10A, in sub-paragraph (1), after “the 1998 Act” insert “or section 75 of the Digital Markets, Competition and Consumers Act 2024”.
(1) The CMA may exercise the powers in this section in relation to a designated undertaking, an undertaking that is the subject of a breach investigation or an undertaking that is the subject of an SMS investigation (in each case, “U”) for the purpose of exercising, or deciding whether to exercise, any of its digital markets functions.
(2) The CMA may appoint a skilled person to provide it with a report in a specified form about matters relevant to the purposes for which the powers under this section are or may be exercised (“the relevant matters”).
(3) Where the CMA makes such an appointment, the CMA must give a notice to U—
(a) confirming the appointment;
(b) specifying the relevant matters.
(4) A notice under subsection (3) may also make provision for U to be liable for payment, directly to the skilled person, of the skilled person’s remuneration and expenses relating to the preparation of the report.
(5) As an alternative to subsection (2), the CMA may give a notice to U—
(a) requiring U to appoint a skilled person to provide the CMA with a report in such form as may be specified in the notice;
(b) specifying the relevant matters to be explored in the report;
(c) specifying the date by which the report must be provided.
(6) Where the skilled person is to be appointed by U, U may not make an appointment unless the CMA has approved in writing—
(a) the identity of the skilled person, and
(b) the terms on which they will be appointed, including in relation to their remuneration and expenses.
(7) Subsections (8) to (10) apply in relation to an amount due to a skilled person from U under this section.
(8) In England and Wales, such an amount is recoverable—
(a) if the county court so orders, as if it were payable under an order of that court;
(b) if the High Court so orders, as if it were payable under an order of that court.
(9) In Scotland, such an amount may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(10) In Northern Ireland, such an amount is recoverable—
(a) if a county court so orders, as if it were payable under an order of that court;
(b) if the High Court so orders, as if it were payable under an order of that court.
(11) References in this section to a skilled person are to a person appearing to the CMA to have the skills necessary to prepare a report about the relevant matters.
(12) It is the duty of—
(a) U, and
(b) any person connected to (see section 118(3)) U,
to give a skilled person who has been appointed under this section all such assistance (including access to such business premises (see section 71(7)), equipment, services, information and individuals) as the skilled person may reasonably require to prepare the report.
(13) The duty in section 79(12) does not include a duty to give access to premises, equipment or individuals outside the United Kingdom.
(14) But the duty in section 79(12) does include a duty to give access to information and services whether stored or provided within or outside the United Kingdom.