83 Order-making power where final undertakings not fulfilled
(1) Subsection (2) applies where the CMA considers that—
(a) an undertaking accepted by it under section 82 has not been, is not being or will not be fulfilled; or
(b) in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the CMA by the person giving the undertaking before the CMA decided to accept the undertaking.
(2) The CMA may, for any of the purposes mentioned in section 41(2), make an order under this section.
(3) Subsections (3) to (5) of section 41 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.
(4) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the CMA considers appropriate.
(5) An order under this section—
(a) shall come into force at such time as is determined by or under the order;
(b) may contain provision which is different from the provision contained in the undertaking concerned; and
(c) may be varied or revoked by another order.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The CMA may, in accordance with section 41, make an order under this section.
(2) An order under this section may contain—
(a) anything permitted by Schedule 8; and
(b) such supplementary, consequential or incidental provision as the CMA considers appropriate.
(3) An order under this section—
(a) shall come into force at such time as is determined by or under the order; and
(b) may be varied or revoked by another order.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) No order shall be made under this section in relation to a reference under section 22 , 33, 68B or 68C if an undertaking has been accepted under section 82 in relation to that reference.
85 Enforcement regime for public interest and special public interest cases
(1) Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.
(2) The CMA may advise the Secretary of State or the Chancellor of the Duchy of Lancaster in relation to the taking by either of them of enforcement action under Schedule 7.
(1) An enforcement order may extend to a person’s conduct outside the United Kingdom if (and only if) he is—
(a) a United Kingdom national;
(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c) a person carrying on business in the United Kingdom.
(2) Nothing in an enforcement order shall have effect so as to—
(a) cancel or modify conditions in licences granted—
(i) under a patent granted under the Patents Act 1977 (c. 37) or a European patent (UK) (within the meaning of the Act of 1977); or
(ii) in respect of a design registered under the Registered Designs Act 1949 (c. 88);
by the proprietor of the patent or design; or
(b) require an entry to be made in the register of patents or the register of designs to the effect that licences under such a patent or such a design are to be available as of right.
(3) An enforcement order may prohibit the performance of an agreement already in existence when the order is made.
(4) Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.
(5) Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.
(6) In this Part “enforcement order” means an order made under section 70C, 72, 75, 76, 81, 83 or 84 or under paragraph 2, 5, 6, 10 or 11 of Schedule 7.
(1) An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—
(a) a person specified in the directions; or
(b) the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
(2) Directions fall within this subsection if they are directions—
(a) to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, the enforcement order concerned; or
(b) to do, or refrain from doing, anything so specified or described which the person might be required by that order to do or refrain from doing.
(3) An enforcement order may authorise the person making the order to vary or revoke any directions so given.
(4) The court may by order require any person who has failed to comply with directions given by virtue of this section to comply with them, or otherwise remedy his failure, within such time as may be specified in the order.
(5) Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
(6) An order under subsection (4) or (5) shall be made on the application of the person authorised by virtue of this section to give the directions concerned.
(7) An order under subsection (4) or (5) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
(8) In this section “the court” means—
(a) in relation to England and Wales or Northern Ireland, the High Court; and
(b) in relation to Scotland, the Court of Session.
(1) This section applies in relation to any order under section 70C, 75, 83 or 84 or under paragraph 5, 10 or 11 of Schedule 7.
(2) The order or any explanatory material accompanying the order shall state—
(a) the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;
(b) the date on which the order comes into force;
(c) the possible consequences of not complying with the order; and
(d) the section of this Part under which a review can be sought in relation to the order.
(A1) An appropriate authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.
(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
(2) In this Part “enforcement undertaking” means an undertaking under section ... 73, 80 or 82 or under paragraph ... 3 or 9 of Schedule 7.
(3) In this section, “appropriate authority” has the same meaning as in section 94AA.
90 Procedural requirements for certain undertakings and orders
Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.
(1) The CMA shall compile and maintain a register for the purposes of this Part.
(2) The register shall be kept in such form as the CMA considers appropriate.
(3) The CMA shall ensure that the following matters are entered in the register—
(a) the provisions of any enforcement undertaking accepted under this Part;
(b) the provisions of any enforcement order made under this Part;
(c) the details of any variation, release or revocation of such an undertaking or order; and
(d) the details of any consent given by the CMA under section 77(2) or (3) or 78(2) or by the Secretary of State under paragraph 7(2) or (3) or 8(2) of Schedule 7.
(4) The duty in subsection (3) does not extend to anything of which the CMA is unaware.
(5) The Secretary of State shall inform the CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by the Secretary of State, enforcement orders made by them or consents given by the Secretary of State.
(6) The CMA shall ensure that the contents of the register are available to the public—
(a) during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and
(b) subject to such reasonable fees (if any) as the CMA may determine.
(7) If requested by any person to do so and subject to such reasonable fees (if any) as the CMA may determine, the CMA shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.
(8) In subsection (5), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
(1) The CMA shall keep under review—
(a) the carrying out of any enforcement undertaking or any enforcement order; and
(b) compliance with the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(2) The CMA shall, in particular, from time to time consider—
(a) whether an enforcement undertaking or enforcement order has been or is being complied with;
(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—
(i) one or more of the parties to it can be released from it; or
(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and
(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.
(3) The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—
(a) any possible variation or release by ... the Secretary of State of an enforcement undertaking accepted by ... him;
(b) any possible new enforcement undertaking to be accepted by ... the Secretary of State so as to supersede another enforcement undertaking given to ... the Secretary of State;
(c) any possible variation or revocation by ... the Secretary of State of an enforcement order made by ... the Secretary of State;
(d) any possible enforcement undertaking to be accepted by ... the Secretary of State instead of an enforcement order or any possible enforcement order to be made by ... the Secretary of State instead of an enforcement undertaking;
(e) the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or
(f) the enforcement by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(4) The CMA shall take such action as it considers appropriate in relation to—
(a) any possible variation or release by it of an enforcement undertaking accepted by it;
(b) any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;
(c) any possible variation or revocation by it of an enforcement order made by it;
(d) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;
(e) the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or
(f) the enforcement by it by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.
(5) The CMA shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.
(6) The CMA shall, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (5).
(7) The CMA shall—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) give a copy of any report prepared by it under subsection (6) to the Secretary of State; and
(c) publish the report.
(8) In this section, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
93 Further role of CMA in relation to undertakings and orders
(1) Subsections (2) and (3) apply where—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) the Secretary of State is considering whether to accept undertakings under paragraph ...3 or 9 of Schedule 7.
(2) The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under ... paragraph ... 3 or 9 of Schedule 7.
(3) The Secretary of State may require the CMA to report to the relevant authority on the outcome of the CMA's consultations within such period as the relevant authority may require.
(4) A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under ... paragraph ... 3 or 9 of Schedule 7.
(5) The powers conferred on the relevant authority by subsections (1) to (4) are without prejudice to the power of the relevant authority to consult the persons concerned itself.
(6) If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertaking) in a particular case, the CMA shall give such advice as it considers appropriate.
(1) This section applies to any enforcement undertaking or enforcement order.
(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.
(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.
(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
(5) In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.
(6) Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) Compliance with an undertaking under paragraph ... 3 or 9 of Schedule 7, an order made by the Secretary of State under section 70C(2), paragraph 2 of Schedule 7 or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
(9) Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.
(10) In subsection (8), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.
(10) In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 94B at the time of the failure to comply with the undertaking or (as the case may be) order.
94AA Enforcement of undertakings and orders: imposition of penalties
(1) The appropriate authority may, in accordance with section 94AB, impose a penalty on a person—
(a) from whom the authority has accepted an enforcement undertaking, or
(b) to whom an enforcement order is addressed,
where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order.
(2) In this section and in section 94AB, “the appropriate authority” means—
(a) in relation to an enforcement undertaking or enforcement order made by the Secretary of State under Schedule 7, the Secretary of State;
(b) in relation to any other enforcement undertaking or enforcement order, the CMA.
(3) In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 94B at the time of the failure to comply.
(1) A penalty under section 94AA(1) is to be such amount as the appropriate authority considers appropriate.
(2) The amount must be—
(a) a fixed amount,
(b) an amount calculated by reference to a daily rate, or
(c) a combination of a fixed amount and an amount calculated by reference to a daily rate.
(3) A penalty imposed under section 94AA(1) on a person who does not own or control an enterprise must not—
(a) in the case of a fixed amount, exceed £30,000;
(b) in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
(4) A penalty imposed under section 94AA(1) on any other person must not—
(a) in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
(b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;
(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.
(5) In imposing a penalty by reference to a daily rate—
(a) no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) (as applied by subsection (6)), and
(b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person complies with the enforcement undertaking or enforcement order.
(6) Sections 112 to 115 apply in relation to a penalty imposed under section 94AA(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—
(a) any reference in those provisions to the appropriate authority is to be read as a reference to the appropriate authority within the meaning of this section (see section 94AA(2));
(b) section 114(5A) is to be read as if the words “or OFCOM” were omitted;
(c) section 114(12) is to be read as if, for paragraph (b), there were substituted—
(b) “relevant guidance” means the statement of policy which was most recently published under section 94B at the time when the act or omission concerned occurred.
(7) The Secretary of State may by regulations amend subsection (3)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.
(8) Before making regulations under subsection (7) the Secretary of State must consult—
(a) the CMA, and
(b) such other persons as the Secretary of State considers appropriate.
(9) The Secretary of State may by regulations make provision for determining, for the purposes of this section—
(a) when an enterprise is to be treated as being controlled by a person;
(b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.
(10) Regulations under subsection (9)(b) may, in particular, make provision as to—
(a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover;
(b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined.
(11) Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).
94B Statement of policy in relation to functions under sections 94 and 94AA
(1) The CMA shall prepare and publish a statement of policy in relation to the exercise of functions under—
(a) section 94 ...; and
(b) section 94AA.
(2) The CMA shall, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 94AA.
(3) The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.
(4) The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.
(5) A statement or revised statement of policy may not be published under this section unless the Secretary of State approves the statement.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.
(2) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.
(3) In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.
(4) Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the CMA or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
(5) Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the CMA or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.
(6) Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.
(1) The CMA must—
(a) monitor compliance with transferred EU merger commitments; and
(b) take such action (if any) under subsection (3) or section 95B as it considers appropriate.
(2) Any person to whom transferred EU merger commitments relate has a duty to comply with those commitments.
(3) Compliance with transferred EU merger commitments is enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.
(4) The rights of the CMA under subsection (3) are not affected by any provisions of transferred EU merger commitments which provide for disputes relating to compliance with the commitments to be resolved by arbitration.
(5) The CMA must ensure that the provisions of transferred EU merger commitments are entered and kept up to date in the register referred to in section 91.
(6) In this Part “transferred EU merger commitments” means EU merger commitments—
(a) which are the subject of an Article 95(2) transfer decision (and, where those commitments are modified by, or as contemplated by, that decision or by a later Article 95(2) transfer decision, means those commitments as so modified); and
(b) which have not been waived or substituted by the European Commission.
(7) In this section—
“Article 95(2) transfer decision” means an instrument issued by the European Commission in accordance with Article 95(2) of the EU withdrawal agreement transferring responsibility for the monitoring and enforcement of EU merger commitments to the CMA;
“EU merger commitments” means commitments attached to a decision adopted by the European Commission under Article 6(1)(b) and (2) or 8(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
(8) So far as the context permits or requires, transferred EU merger commitments are to be treated for the purposes of this Part as if—
(a) any reference to the area of the European Union or of the European Economic Area included the United Kingdom;
(b) any reference to the internal market included the United Kingdom;
(c) any reference to a member State included the United Kingdom;
(d) any reference to a party to the EEA agreement included the United Kingdom.
(9) Subsection (8) is subject to any different provision made by the Article 95(2) transfer decision in question.
95B Power of directions in connection with transferred EU merger commitments
(1) The CMA may give directions falling within subsection (2) to—
(a) a person specified in the directions; or
(b) the holder for the time being of an office so specified in any body of persons corporate or unincorporate.
(2) Directions fall within this subsection if they are directions—
(a) to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, transferred EU merger commitments; or
(b) to do, or refrain from doing, anything so specified or described which the person is required by transferred EU merger commitments to do or refrain from doing.
(3) The CMA may vary or revoke any directions so given.
(4) Directions under this section may extend to a person’s conduct outside the United Kingdom if (and only if) the person is—
(a) a person bound by the transferred EU merger commitments concerned;
(b) a United Kingdom national;
(c) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(d) a person carrying on business in the United Kingdom.
(5) The court may by order require any person who has failed to comply with directions given under this section to comply with them, or otherwise remedy the failure, within such time as may be specified in the order.
(6) Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.
(7) An order under subsection (5) or (6) may only be made on the application of the CMA.
(8) An order under subsection (5) or (6) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.
(9) In this section “the court” means—
(a) in relation to England and Wales or Northern Ireland, the High Court; and
(b) in relation to Scotland, the Court of Session.
(1) A person authorised to do so by regulations under section 101 may give notice to the CMA of arrangements or proposed arrangements which might have resulted or might result in the creation of a relevant merger situation.
(2) Any such notice (in this Part a “merger notice”)—
(a) shall be in the prescribed form;
(aa) shall contain the prescribed information; and
(b) shall state that the existence of the proposal has been made public.
(2A) Where the CMA is satisfied that a merger notice meets the requirements of subsection (2), it shall give notice to that effect to the person who gave the merger notice.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the CMA by notice having effect for the time being and published online.
(6) In this Part “notified arrangements” means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.
99 Certain functions of CMA in relation to merger notices
(1) The CMA shall, so far as practicable and when the initial period (within the meaning of section 34ZA) begins in relation to the merger notice, take such action as the CMA considers appropriate to bring—
(a) the existence of the proposal;
(b) the fact that the merger notice has been given; and
(c) the date on which the period for considering the notice may expire;
to the attention of those whom the CMA considers would be affected if the arrangements were carried into effect.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The CMA may, at any time before the end of the initial period (within the meaning of section 34ZA) in relation to a merger notice, reject the notice if—
(a) the CMA suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;
(b) the CMA suspects that it is not proposed to carry the notified arrangements into effect; or
(c) any prescribed information is not given in the merger notice or the person who gave the merger notice has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case concerned; ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—
(a) any person who, for the purposes of section 127, is associated with him; or
(b) any subsidiary of the person who gave the merger notice or of any person so associated with him.
100 Exceptions to protection given by merger notices
(1) Sections 22(3)(za) and 33(3)(za) do not prevent any reference being made under section 22 , 33, 68B or 68C if—
(a) before the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice, the CMA rejects the notice under section 99(5);
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) any information (whether prescribed information or not) that—
(i) is, or ought to be, known to the person who gave the merger notice or any connected person; and
(ii) is material to the notified arrangements;
is not disclosed to the CMA ...;
(d) at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;
(e) the six months beginning with the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;
(f) the merger notice is withdrawn; or
(g) any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.
(2) Subsection (3) applies where—
(a) two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under section 22 , 33, 68B or 68C as having occurred simultaneously on a particular date; and
(b) sections 22(3)(za) and 33(3)(za) do not prevent such a reference in relation to the last of those transactions.
(3) Sections 22(3)(za) and 33(3)(za) do not not prevent such a reference in relation to any of those transactions which actually occurred less than six months before—
(a) that date; or
(b) the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).
(4) In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.
(5) In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.
(1) The Secretary of State may make regulations for the purposes of sections 96 to 100.
(2) The regulations may, in particular—
(a) provide for ... section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;
(b) provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.
103 Duty of expedition in relation to references under section 45 or 62
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.
104 Certain duties of relevant authorities to consult
(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.
(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—
(a) any restrictions imposed by any timetable for making the decision; and
(b) any need to keep what is proposed, or the reasons for it, confidential.
(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.
(6) In this section—
“the relevant authority” means the CMA, the Commission or the Secretary of State;
“relevant decision” means—
in the case of the CMA, any decision by the CMA—
as to whether to make a reference under section 22(1), 33(1) , 68B or 68C or accept undertakings under section 73 instead of making such a reference; or
to vary under section 37 a reference under section 22, 33, 68B or 68C ; or
on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63;
...
in the case of the Secretary of State, any decision by the Secretary of State—
as to whether to make a reference under section 45 or 62; or
to vary under section 49 or (as the case may be) 64 such a reference; and
“relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.
104A Public consultation in relation to media mergers
(1) Subsection (2) applies where the CMA—
(a) is preparing—
(i) a report under section 50 on a reference which specifies a media public interest consideration; or
(ii) a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and
(b) is not under a duty to disregard the consideration concerned.
(2) The CMA shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger situation or special merger situation concerned and so far as such consultation is practicable.
(3) Any consultation of the kind mentioned in subsection (2) may be undertaken by the CMA by consulting such representative sample of the public or section of the public concerned as the CMA considers appropriate.
(1) Where the CMA decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 , 33, 68B or 68C, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
(1A) Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.
(2) Subsections (1) and (1A) do not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.
(3) The CMA shall give the ... OFCOM—
(a) such information in its possession as ...OFCOM may reasonably require to enable the ...OFCOM to carry out its functions under this Part; and
(b) any other assistance which the ... OFCOM may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the CMA to give.
(3A) OFCOM shall give the CMA —
(a) such information in their possession as the CMA may reasonably require to enable the CMA to carry out its functions under this Part; and
(b) any other assistance which the CMA may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.
(4) The CMA shall give the OFCOM any information in its possession which has not been requested by the ... OFCOM but which, in the opinion of the CMA, would be appropriate to give to the ... OFCOM for the purpose of assisting it in carrying out its functions under this Part.
(4A) OFCOM shall give the CMA any information in their possession which has not been requested by the CMA but which, in the opinion of OFCOM, would be appropriate to give to the CMA for the purpose of assisting it in carrying out its functions under this Part.
(5) The CMA and OFCOM shall give the Secretary of State—
(a) such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and
(b) any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the CMA or (as the case may be) OFCOM to give.
(6) The CMA and OFCOM shall give the Secretary of State any information in their possession which has not been requested by the Secretary of State but which, in the opinion of the CMA or (as the case may be) OFCOM, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.
(7) The CMA shall have regard to any information given to it under subsection (3A) or (4A); and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).
(7A) OFCOM shall have regard to any information given to them under subsection (3) or (4); ...
(8) Any direction given under subsection (5)—
(a) shall be in writing; and
(b) may be varied or revoked by a subsequent direction.
106 Advice and information about references under section 22, 33, 68B or 68C
(1) ... The CMA shall prepare and publish general advice and information about—
(a) the making and consideration by it of references under section 22 , 33, 68B or 68C, and
(b) the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.
(2) The CMA may at any time publish revised, or new, advice or information.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Advice and information published under this section shall be prepared with a view to—
(a) explaining relevant provisions of this Part to persons who are likely to be affected by them; and
(b) indicating how the CMA or (as the case may be) the Commission expects such provisions to operate.
(6) Advice (or information) published by virtue of subsection (1) ... may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a function conferred by this Part.
(7) Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.
(8) In preparing any advice or information under this section, the CMA shall consult such persons as it considers appropriate.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
106A Advice and information in relation to media mergers
(1) The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C).
(2) The Secretary of State may at any time publish revised, or new, advice or information.
(3) Advice or information published under this section shall be prepared with a view to—
(a) explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and
(b) indicating how the Secretary of State expects this Part to operate in relation to such considerations.
(4) Any advice or information published by the Secretary of State under this section shall be published in such manner as the Secretary of State considers appropriate.
(5) In preparing any advice or information under this section, the Secretary of State shall consult the CMA, OFCOM and such other persons as he considers appropriate.
(1) OFCOM may, in connection with any case on which they are required to give a report by virtue of section 44A or 61A, give such advice as they consider appropriate to the Secretary of State in relation to—
(a) any report made in such a case by the CMA under section 50 or 65; and
(b) the taking by the Secretary of State of enforcement action under Schedule 7.
(2) OFCOM may, if requested to do so by the Secretary of State, give such other advice as they consider appropriate to the Secretary of State in connection with any case on which they are required to give a report by virtue of section 44A or 61A.
(3) OFCOM shall publish any advice given by them under this section but advice given by them in relation to a report of the CMA under section 50 or 65 or related enforcement action shall not be published before the report itself is published.
(1) The CMA shall publish—
(a) any decision made by it that the duty to make a reference under section 22(1), 33(1), 68B or 68C applies and any such reference made by it;
(aa) any decision made by it that the duty to make such a reference does not apply (other than a decision made by virtue of section 33(2)(b) or 68C(2)(a));
(aaa) any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;
(ab) any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3);
(ac) any extension by it under section 34ZB of the initial period;
(ad) any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b);
(ae) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(af) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ag) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ah) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) any variation made by it under section 37 of a reference under section 22 , 33, 68B or 68C;
(c) such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) any enforcement order made by it under section 72 ... or paragraph 2 of Schedule 7;
(ea) any notice given by it under section 73A(2)(b);
(eb) any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73;
(ec) any decision made by it to cancel an extension as mentioned in section 73A(11)(b);
(f) any variation, release or revocation of an order mentioned in paragraph (e)
(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .; and
(i) any notice given by it under section 96(2A).
(2) The CMA shall also publish—
(a) any cancellation by it under section 37(1) of a reference under section 33 or 68C;
(b) any decision made by it under section 37(2) to treat a reference under section 22 or 68B as if it had been made under section 33 or 68C or to treat a reference under section 33 or 68C as if it had been made under section 22 or 68B;
(c) any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;
(d) any decision made by it to cancel an extension as mentioned in section 39(7A)(b) or (8)(b);
(e) any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;
(ea) any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged;
(eb) any decision made by it to cancel an extension as mentioned in section 41A(7)(b);
(f) any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;
(g) any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;
(h) any decision made by it under section 49(1) to treat—
(i) a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or
(ii) a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;
(i) any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;
(j) any decision made by it under section 51(7A)(b) or (8)(b) to cancel such an extension;
(k) any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;
(l) any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;
(m) any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;
(n) any decision made by it as mentioned in section 76(6)(b);
(o) any enforcement order made by it under section 76 or 81;
(p) any enforcement undertaking accepted by it under section 80;
(q) any variation, release or revocation of such an order or undertaking; and
(r) any decision made by it to dispense with the requirements of Schedule 10.
(3) The Secretary of State shall publish—
(a) any intervention notice or special intervention notice given by him;
(b) any report of the CMA under section 44 or 61 which has been received by him;
(ba) any report of OFCOM under section 44A or 61A which has been received by him;
(c) any reference made by him under section 45 or 62 or any decision made by him not to make such a reference;
(d) any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;
(e) any report of the CMA under section 50 or 65 which has been received by him;
(f) any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;
(g) any notice given by him under section 56(1);
(ga) any foreign state intervention notice given by the Secretary of State;
(gb) any report of the CMA under section 70B which the Secretary of State has received;
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and
(k) any decision made by him to dispense with the requirements of Schedule 10.
(4) Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
(5) Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.
(6) Subsections (4) and (5) shall not apply in relation to—
(a) any decision published under subsection (1)(aaa), or
(b) any information published under subsection (1)(c).
(7) The Secretary of State shall publish his reasons for—
(a) any decision made by him under section 54(2) or 66(2); or
(b) any decision to make an order under section 58(3) or vary or revoke such an order.
(8) Such reasons may be published after—
(a) in the case of subsection (7)(a), the publication of the decision concerned; and
(b) in the case of subsection (7)(b), the making of the order or of the variation or revocation;
if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.
(9) The Secretary of State shall publish—
(a) the report of the CMA under section 44 and any report of OFCOM under section 44A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and
(b) the report of the CMA under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.
(10) The Secretary of State shall publish—
(a) the report of the CMA under section 61, and any report of OFCOM under section 61A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and
(b) the report of the CMA under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.
(11) Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the CMA's report under section 50 or (as the case may be) 65, before each House of Parliament
(12) The Secretary of State must publish any report of the CMA under section 70B which the Secretary of State has received within the period of 7 days beginning with the day on which the Secretary of State receives the report.
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the CMA, OFCOM or the Secretary of State in the exercise of any of their functions under this Part.
109 Attendance of witnesses and production of documents etc.
(A1) For the purposes of this section, the permitted purposes are the following—
(a) assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 22 , 33, 68B or 68C;
(b) assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 45 or 62 or a foreign state intervention notice under section 70A.
(1) The CMA may, for a permitted purpose, give notice to any person requiring him—
(a) to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and
(b) to give evidence to the CMA or a person nominated by the CMA for the purpose.
(2) The CMA may, for a permitted purpose, give notice to any person requiring him—
(a) to produce any documents which—
(i) are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and
(ii) are in that person’s custody or under his control; and
(b) to produce them at a time and place so specified and to a person so specified.
(3) The CMA may, for a permitted purpose, give notice to any person who carries on any business requiring him—
(a) to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and
(b) to supply it at a time and place, and in a form and manner, so specified and to a person so specified.
(4) A notice under this section shall—
(a) specify the permitted purpose for which the notice is given, including the function or functions in question; and
(b) include information about the possible consequences of not complying with the notice.
(5) The CMA, or any person nominated by it for the purpose, may for a permitted purpose take evidence on oath, and for that purpose may administer oaths.
(6) The person to whom any document is produced in accordance with a notice under this section may, for a permitted purpose, copy the document so produced.
(7) No person shall be required under this section—
(a) to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or
(b) to supply any information which he could not be compelled to supply in evidence in such proceedings.
(8) No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.
(8A) In subsection (A1), “enforcement functions” means—
(a) in relation to the CMA—
(i) functions conferred by virtue of section 87 on the CMA by enforcement orders;
(ii) functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
(iii) functions of the CMA under or by virtue of section 75, 76, 83 or 92 in relation to enforcement undertakings or enforcement orders;
(b) in relation to the Secretary of State—
(i) functions conferred by virtue of section 87 on the Secretary of State by enforcement orders;
(ii) functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;
(iii) functions of the Secretary of State under or by virtue of paragraph 5, 6 or 10 of Schedule 7 in relation to enforcement undertakings or enforcement orders.
(9) Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.
(10) In this section “the court” means—
(a) in relation to England and Wales or Northern Ireland, the High Court; and
(b) in relation to Scotland, the Court of Session.
109A Transferred EU merger commitments: witnesses, documents etc
Any power exercisable by the CMA under section 109 for “permitted purposes” (as mentioned in subsection (A1) of that section) is also exercisable by the CMA under that section for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B.
109B Extra-territorial application of notices under section 109
(1) This section applies to the exercise of the CMA’s power to give a person a notice under section 109(2) or (3).
(2) The power is exercisable so as to—
(a) give the notice to a person who is outside the United Kingdom (subject to subsection (3));
(b) require the production of documents, or the supply of information, held outside the United Kingdom.
(3) The CMA’s power to give a notice under section 109(2) or (3) to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only if—
(a) the person is, or was, part of, or involved with or carrying on, an enterprise which has or may have ceased, or may cease, to be a distinct enterprise in circumstances where a reference has been, or may be, made under section 22, 33, 45, 62, 62B or 68C, or a foreign state intervention notice has been given under section 70A(1), in relation to the enterprise, or
(b) the person has a UK connection.
(4) For the purposes of subsection (3)(b), a person has a UK connection if the person—
(a) is a United Kingdom national;
(b) is an individual who is habitually resident in the United Kingdom;
(c) is a body incorporated under the law of any part of the United Kingdom;
(d) carries on business in the United Kingdom.
(5) Nothing in this section is to be taken to limit any other power of the CMA to give a notice under section 109(2) or (3) to a person outside the United Kingdom.
110 Enforcement of powers under section 109: imposition of penalties
(1) The CMA may impose a penalty on a person in accordance with section 111 where the CMA considers that—
(a) the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109;
(b) the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 109(6);
(c) the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 109.
(1A) The appropriate authority may impose a penalty on a person in accordance with section 111 where the authority considers that—
(a) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part;
(b) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part.
(1B) In this section, and in sections 111 to 117, “the appropriate authority” means—
(a) the CMA;
(b) the Secretary of State;
(c) OFCOM.
(1C) But the appropriate authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 if the person has, by reason of that act or omission, been found guilty of that offence.
(2) The CMA may proceed (whether at the same time or at different times) under subsection (1)(a) and section 39(4) or (as the case may be) 51(4) (including that enactment as applied by section 65(3)) in relation to the same failure.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) In deciding whether and, if so, how to proceed under subsection (1) or (1A) or section 39(4) or 51(4) (including that enactment as applied by section 65(3))—
(a) the CMA must have regard to the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;
(b) OFCOM must have regard to the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.
(10) The reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
110A Restriction on powers to impose penalties under section 110
(1) No penalty shall be imposed by virtue of section 110(1)(a) or (b) if more than ten weeks have passed since the day which is the relevant day in the case in question; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
(2) In the following provisions of this section, “the section 109 power” means the power under section 109 to which the act or omission giving rise to the penalty in question relates.
(3) Where the section 109 power is exercised in connection with an enforcement function (within the meaning of that section), the relevant day is the day when the enforcement undertaking concerned is superseded or released or (as the case may be) the enforcement order concerned is revoked.
(4) Except where subsection (3) applies, the relevant day is the day determined in accordance with the following provisions of this section.
(5) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a possible reference under section 22 , 33, 68B or 68C, the relevant day is the day when the CMA finally decides whether to make the reference.
(6) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(a) in connection with a matter that is the subject of a reference under section 22 , 33, 68B or 68C, the relevant day is the day when the reference is finally determined (see section 79).
(7) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a possible reference under section 45 or 62, the relevant day is the day when the Secretary of State finally decides whether to make the reference.
(8) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a reference under section 45 or 62, the relevant day is the day when the reference is finally determined.
(8A) Where the section 109 power is exercised for the purpose mentioned in section 109(A1)(b) in connection with a matter that is the subject of a foreign state intervention notice under section 70A, the relevant day is the day when the matter to which the notice relates is finally determined under Chapter 3A (see section 70F).
(9) Where the section 109 power is exercised for the purposes of assisting the CMA in carrying out any of its functions under or by virtue of section 95A(1) or 95B (see section 109A), the relevant day is the day when the transferred EU merger commitments concerned are waived or substituted by the European Commission.
(10) Where the section 109 power is exercised for the purposes of providing assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the relevant day is the earlier of—
(a) in the case of a penalty imposed by virtue of section 110(1)(a), the day on which the CMA gives notice to the relevant person that—
(i) the information or documents specified or described in the notice under section 109 have been produced or supplied to the satisfaction of the CMA, or
(ii) the relevant person has appeared as a witness in accordance with the requirements of the CMA;
(b) in the case of a penalty imposed by virtue of section 110(1)(b), the day on which the CMA gives notice to the relevant person that the CMA considers the obstruction or delay to have ceased; and
(c) in either case, the day one year on from the day specified in the notice under section 109 for the relevant person to comply with it.
(11) In subsection (10), “the relevant person” means the person given the notice under section 109.