164 Enforcement undertakings and orders under this Part: general provisions
(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.
(2) The following enactments in Part 3 shall apply in relation to enforcement orders under this Part as they apply in relation to enforcement orders under that Part—
(a) section 86(1) to (5) (enforcement orders: general provisions); and
(b) section 87 (power of directions conferred by enforcement order).
(3) An enforcement order under section 160 or 161 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.
165 Procedural requirements for certain undertakings and orders: Part 4
Schedule 10 (procedural requirements for certain undertakings and orders), other than paragraph 9 of that Schedule, shall apply in relation to undertakings under section 159 or 161C and orders under section 160 , 161 or 161C as it applies in relation to undertakings under section 82 and orders under section 83 or 84.
(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 by virtue of this Part ...;
(b) the provisions of any enforcement order made by virtue of this Part ...; and
(c) the details of any variation, release or revocation of such an undertaking or order.
(4) The duty in subsection (3) does not extend to anything of which the CMA is unaware.
(5) The ... Secretary of State and any relevant sectoral regulator 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 them or enforcement orders made by them.
(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.
167 Rights to enforce undertakings and orders under this Part
(1) This section applies to
(a) any enforcement undertaking or enforcement order;
(b) any undertaking accepted, or order made, under section 161C.
(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 undertaking or order to which this section applies 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 undertaking or order to which this section applies 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) Compliance with an undertaking accepted by the Secretary of State under section 157 or 159, or an order made by the Secretary of State under section 158, 160 or 161, 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.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) Subsections (6) and (7) 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 undertaking or order to which this section applies.
(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 167C at the time of the failure to comply with the undertaking or (as the case may be) order.
167A Enforcement of undertakings and orders etc: imposition of penalties
(1) The relevant authority may, in accordance with section 167B, 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 167B, “the relevant authority” means—
(a) in the case of a restricted PI reference or a full PI reference, the Secretary of State;
(b) in any other case, 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 167C at the time of the failure to comply.
(1) A penalty under section 167A(1) is to be such amount as the relevant 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 167A(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 167A(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
(i) the enforcement undertaking or enforcement order , or
(ii) the undertaking accepted, or order made, under section 161C.
(6) Sections 112 to 115 apply in relation to a penalty imposed under section 167A(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 relevant authority within the meaning of this section (see section 167A(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 167C 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 relevant 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)).
167C Statement of policy in relation to functions under sections 167 and 167A
(1) The CMA must prepare and publish a statement of policy in relation to the exercise of functions under sections 167 and 167A.
(2) The CMA must, in particular, include a statement about the considerations relevant to the determination of the amount of any penalty imposed under section 167A.
(3) The CMA may revise its statement of policy and, where it does so, it must publish the revised statement.
(4) The CMA must 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 without the approval of the Secretary of State.
(1) Subsection (2) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether relevant action would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.
(2) The CMA or (as the case may be) the Secretary of State shall, in deciding whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned.
(3) In this section “relevant action” means—
(a) modifying the conditions of a licence granted under section 7 of the Telecommunications Act 1984 (c. 12);
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44);
(d) modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);
(e) modifying networking arrangements (within the meaning given by section 290 of the Communications Act 2003);
(f) modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);
(ff) modifying the conditions of a licence granted under Chapter 1A of Part 2 of the Act of 1991 or modifying the terms and conditions of an agreement under section 66D or 117E of that Act;
(g) modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));
(h) modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);
(hh) modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;
(i) modifying an access agreement (within the meaning given by section 83(1) of the Act of 1993) or a franchise agreement (within the meaning given by section 23(3) of that Act);
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(k) modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));
(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(m) modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38);
(n) modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006;
(o) modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;
(p) modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012;
(q) modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012; or
(r) modifying the conditions of a licence granted under section 7 of the Energy Act 2023.
(4) In this section “relevant statutory functions” means—
(a) in relation to any licence granted under section 7 of the Telecommunications Act 1984, the duties and obligations of the Director General of Telecommunications imposed on him by or in pursuance of any enactment or other provision mentioned in section 7(5)(a) of that Act;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) in relation to any licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44), the objectives and duties of the Gas and Electricity Markets Authority under section 4AA and 4AB(2) of that Act;
(d) in relation to any licence granted under section 6 of the Electricity Act 1989 (c. 29), the objectives and duties of the Gas and Electricity Markets Authority under section 3A and 3B(2) of that Act;
(e) in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;
(f) in relation to a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56), the duties of the Water Services Regulation Authority under section 2 of that Act;
(ff) in relation to a licence granted under Chapter 1A of Part 2 of the Act of 1991 or an agreement under section 66D or 117E of that Act, the duties of the Authority under section 2 of that Act or under that section and section 66D or 117E of that Act (as the case may be);
(g) in relation to any licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 12 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6));
(h) in relation to any licence granted under section 8 of the Railways Act 1993 (c. 43) where none of the conditions of the licence relate to consumer protection, the duties of the Office of Rail and Road under section 4 of that Act;
(hh) in relation to a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 where none of the conditions of the SNRP relate to consumer protection, the duties of the Department for Regional Development under regulation 36 of those Regulations;
(i) in relation to any licence granted under section 8 of the Act of 1993 where one or more than one condition of the licence relates to consumer protection, the duties of the Office of Rail Regulation under section 4 of that Act and the duties of the Strategic Rail Authority under section 207 of the Transport Act 2000 (c. 38);
(j) in relation to any access agreement (within the meaning given by section 83(1) of the Act of 1993), the duties of the Office of Rail and Road under section 4 of the Act of 1993;
(k) in relation to any franchise agreement (within the meaning given by section 23(3) of the Act of 1993), the duties of the Secretary of State, the Scottish Ministers and the National Assembly for Wales under section 4 of the Act of 1993;
(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(m) in relation to any licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 14 of the Energy (Northern Ireland) Order 2003;
(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(o) in relation to any licence granted under section 5 of the Transport Act 2000, the duties of the Civil Aviation Authority under section 87 of that Act;
(p) in relation to a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006, the duties of the Northern Ireland Authority for Utility Regulation under Article 6 of that Order;
(q) in relation to regulatory conditions imposed under Part 3 of the Postal Services Act 2011, the duty of the Office of Communications under section 29 of that Act;
(r) in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of NHS England under sections 62 and 66 of that Act;
(s) in relation to a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012, the duties of the Civil Aviation Authority under section 1 of that Act, and
(t) in relation to a licence granted under section 7 of the Energy Act 2023, the objectives and duties of the Gas and Electricity Markets Authority under section 1 of that Act.
(5) In this section “sectoral regulator” means—
(a) the Civil Aviation Authority;
(b) the Northern Ireland Authority for Utility Regulation.
(d) the Director General of Telecommunications;
(e) the Water Services Regulation Authority;
(f) the Gas and Electricity Markets Authority;
(g) the Office of Communications;
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i) the Office of Rail and Road; . . .
(ia) NHS England;
(j) the Secretary of State;
(k) the Scottish Ministers; or
(l) the National Assembly for Wales or
(k) the Department for Regional Development.
(6) Subsection (7) applies where the CMA or the Secretary of State is considering for the purposes of this Part whether modifying the conditions of a licence granted under section 7 or 7A, 7A , 7AA, 7AB or 7AC of the Gas Act 1986 (c. 44) , section 6 of the Electricity Act 1989 (c. 29) or section 7 of the Energy Act 2023 would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.
(7) The CMA or (as the case may be) the Secretary of State may, in deciding whether modifying the conditions of such a licence would be reasonable and practicable, have regard to those matters to which the Gas and Electricity Markets Authority may have regard by virtue of section 4AA(4) of the Act of 1986 or (as the case may be) section 3A(4) of the Act of 1989.
(8) The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).
(9) Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.
169 Certain duties of relevant authorities to consult: Part 4
(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 have a substantial impact on the interests of any person.
(2) The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision.
(3) In consulting the person 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 appropriate Minister or the Secretary of State; and
“relevant decision” means—
in the case of the CMA, any decision by the CMA—
to make a reference under section 131 in a case where the CMA has not published a market study notice under section 130A in relation to the matter concerned;
as to whether to accept undertakings in lieu of a reference under section 154A;
to vary under section 135 such a reference ; or—
on the questions mentioned in section 134, 141 or 141A; ...
to accept undertakings or make orders under section 161C; and
to take action under section 162A(5); and
in the case of the appropriate Minister (other than the Secretary of State acting alone), any decision by the appropriate Minister—
... to make a reference under section 132; or
to vary under section 135 such a reference; ...
in the case of the Secretary of State, any decision by the Secretary of State—
to make a reference under section 132;
to vary under section 135 such a reference;
in a case where the Secretary of State is required to make a reference under section 140A, whether to make a reference under subsection (5) or (6) of that section; or
to vary under section 140B a reference made under section 140A(6).
...
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone—
(a) such information in its possession as the Secretary of State or (as the case may be) the appropriate Minister concerned 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 or (as the case may be) the appropriate Minister concerned 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) the Commission to give.
(4) The CMA shall give the Secretary of State or the appropriate Minister so far as he is not the Secretary of State acting alone any information in its possession which has not been requested by the Secretary of State or (as the case may be) the appropriate Minister concerned but which, in the opinion of the CMA, would be appropriate to give to the Secretary of State or (as the case may be) the appropriate Minister concerned for the purpose of assisting him in carrying out his functions under this Part.
(5) The Secretary of State or (as the case may be) the appropriate Minister concerned shall have regard to any information given to him under subsection (3) or (4).
(6) Any direction given under subsection (3)—
(a) shall be in writing; and
(b) may be varied or revoked by a subsequent direction.
(1) ... The CMA shall prepare and publish general advice and information about —
(a) the making and consideration by it of market investigation references, 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 expects such provisions to operate.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) 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.
(8) Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.
(9) In preparing any advice or information under this section, the CMA shall consult such persons and such other persons as it considers appropriate.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The CMA shall publish—
(a) any reference made by it under section 131, other than a reference treated as so made by virtue of section 140A(5)(b);
(aa) any decision not to make a reference under section 131 following a consultation in relation to the matter concerned under section 169;
(b) any variation made by it under section 135 of a reference under section 131;
(c) any decision of a kind mentioned in section 149(5)(b); and
(d) such information as it considers appropriate about any decision made by it under section 152(1) to bring a case to the attention of the Secretary of State.
(2) The CMA shall also publish—
(za) any extension by it under section 137 of the period within which a report under section 136 is to be prepared and published;
(zb) any extension by it under section 138A of the period within which its duty under section 138(2) is to be discharged;
(zc) any decision made by it under section 138A(A1)(b) that it is not reasonably practicable for the CMA to discharge its duty under section 138(2) in accordance with section 138A(1);
(a) any decision made by it under section 138(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
(b) any decision made by it that there has been a material change of circumstances as mentioned in section 138(3) or there is another special reason as mentioned in that section;
(ba) any extension by it under section 144 of the period within which a report under section 142 is to be prepared and action is to be taken in relation to it;
(c) any termination under section 145(1) of an investigation by it;
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) any enforcement undertaking accepted by it under section 157;
(f) any enforcement order made by it under section 158; ...
(g) any variation, release or revocation of such an undertaking or order; and
(h) any decision by it to take action under section 162A(5).
(3) The Secretary of State shall publish—
(a) any reference made by him under section 132;
(b) any variation made by him under section 135 of a reference under section 132;
(c) any intervention notice given by him;
(d) any decision made by him to revoke such a notice;
(da) any reference made by him under section 140A(5) or (6);
(db) any variation made by him under section 140B of a reference under section 140A(6);
(e) any decision made by him under section 147(2) or (as the case may be) 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
(f) any enforcement undertaking accepted by him under section 157;
(g) any variation or release of such an undertaking; and
(h) any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).
(4) The appropriate Minister (other than the Secretary of State acting alone) shall publish—
(a) any reference made by him under section 132;
(b) any variation made by him under section 135 of a reference under section 132; and
(c) any direction given by him under section 170(3) in connection with the exercise by him of his functions under section 132(3).
(5) Where any person is under an obligation by virtue of subsection (1), (2), (3) or (4) 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 (6) and (7), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.
(6) 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.
(7) Subsections (5) and (6) shall not apply in relation to any case falling within subsection (1)(d) ....
(7A) Subsection (6) shall not apply in relation to any case falling within subsection (1)(a) or (3)(da).
(8) The Secretary of State shall publish his reasons for—
(a) any decision made by him under section 146(2) or 146A(2); or
(b) any decision to make an order under section 153(3) or vary or revoke such an order.
(9) Such reasons may be published after—
(a) in the case of subsection (8)(a), the publication of the decision concerned; and
(b) in the case of subsection (8)(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.
(10) Where the Secretary of State has decided under section 147(2) or 147A(2) to accept an undertaking under section 159 or to make an order under section 161, 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 142, before each House of Parliament.
(11) Where the Secretary of State has decided, in accordance with the CMA’s advice under section 162(3) or 162A(8), to accept or release an undertaking under section 159, or to make or revoke an order under section 161, the Secretary of State must, after the acceptance or release of the undertaking or (as the case may be) the making or revocation of the order, lay details of the Secretary of State’s decision and the reasons for it, and the CMA’s advice, before each House of Parliament.
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, by the Secretary of State or, by the appropriate Minister (other than the Secretary of State acting alone) ... in the exercise of any of their functions under this Part.
174 Attendance of witnesses and production of documents etc.
(1) For the purposes of this section, the permitted purposes are the following—
(a) assisting the CMA in carrying out its functions under section 5 in relation to a matter in a case where it has published a market study notice;
(b) 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 under section 131 or 132 or possible reference under section 131;
(c) 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 under section 140A(6) or possible reference under section 140A(5) or (6).
(2) The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.
(3) The CMA may 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.
(4) The CMA may 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.
(5) The CMA may 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.
(6) 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
(6A) 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.
(7) 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.
(8) 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.
(9) 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.
(9A) In subsection (1), “enforcement functions” means—
(a) in relation to the CMA—
(i) functions conferred by virtue of section 164(2)(b) 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 160 or 162 in relation to enforcement undertakings or enforcement orders;
(b) in relation to the Secretary of State—
(i) functions conferred by virtue of section 164(2)(b) 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 section 160 in relation to enforcement undertakings or enforcement orders.
(10) 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.
(11) 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.
174ZA Extra-territorial application of notices under section 174
(1) This section applies to the exercise of the CMA’s power to give a person a notice under section 174(4) or (5).
(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 174(4) or (5) to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only 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.
(4) In subsection (3)(a) “United Kingdom national” has the same meaning as in Part 3 (see section 129(1)).
(5) Nothing in this section is to be taken to limit any other power of the CMA to give a notice under section 174(4) or (5) to a person outside the United Kingdom.
174A Enforcement of powers under section 174: imposition of penalties
(1) The CMA may impose a penalty on a person in accordance with section 174D where the CMA considers that—
(a) the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174;
(b) the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 174(7);
(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 174.
(1A) The relevant authority may impose a penalty on a person in accordance with section 174D 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 174B to 174D, “the relevant authority” means—
(a) the CMA;
(b) the Secretary of State;
(c) the appropriate Minister (so far as the Minister is not the Secretary of State acting alone).
(1C) But the relevant 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 as applied by section 180 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 138A(3) in relation to the same failure.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) In deciding whether and, if so, how to proceed under subsection (1) or (1A) or section 138A(3), the CMA shall have regard to the statement of policy which was most recently published under section 174E at the time the act or omission occurred.
(9) In this section—
(a) the reference 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
(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(10) Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (1A) 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 relevant authority within the meaning of this section;
(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 174E at the time when the act or omission concerned occurred.
174B Restriction on powers to impose penalties under section 174A
(1) No penalty shall be imposed by virtue of section 17A(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 174 power” means the power under section 174 to which the act or omission giving rise to the penalty in question relates.
(3) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(a), the relevant day is the day when the CMA finally concludes the carrying out of its section 5 functions.
(4) Where the section 174 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.
(5) Except where subsection (3) or (4) applies, the relevant day is the day determined in accordance with the following provisions of this section.
(6) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a possible reference under section 131, the relevant day is the day when the CMA finally decides whether to make the reference.
(7) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(b) in connection with a matter that is the subject of a reference under section 131 or 132, the relevant day is the day when the reference is finally determined (see section 183).
(8) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a possible reference under section 140A(5) or (6), the relevant day is the day when the Secretary of State makes the reference.
(9) Where the section 174 power is exercised for the purpose mentioned in section 174(1)(c) in connection with a matter that is the subject of a reference under section 140A(6), the relevant day is the day when the reference is finally determined (see section 183).
(1) For the purpose of section 174B(3), the CMA finally concludes the carrying out of its section 5 functions if—
(a) the CMA publishes the market study report under section 131B(4) or (as the case may be) gives it to the Secretary of State under section 140A(3)(b); or
(b) the period permitted for the preparation by the CMA of the market study report and for the report to be published under section 131B(4) or (as the case may be) given to the Secretary of State under section 140A(3)(b) expires and no such report has been so prepared or no such action has been taken.
(2) For the purpose of section 174B(3), the time when the CMA finally concludes the carrying out of its section 5 functions is—
(a) in a case falling within subsection (1)(a), the publication of the report or (as the case may be) the giving of it to the Secretary of State;
(b) in a case falling within subsection (1)(b), the expiry of the period concerned.
(3) For the purpose of section 174B(6), the CMA finally decides whether to make a reference under section 131 if—
(a) the CMA makes such a reference;
(b) the CMA accepts an undertaking fully in lieu of a reference under section 154A;
(c) the CMA publishes notice that it has otherwise decided not to make such a reference; or
(d) the period permitted for the preparation by the CMA of a market study report in relation to the matter and for the report to be published under section 131B(4) has expired and no such report has been so prepared or published.
(4) For the purpose of section 174B(6), the time when the CMA finally decides whether to make a reference under section 131 is—
(a) in a case falling within subsection (3)(a), the making of the reference;
(b) in a case falling within subsection (3)(b), the acceptance of the undertaking concerned;
(c) in a case falling within subsection (3)(c), the publication of the notice concerned;
(d) in a case falling within subsection (3)(d), the expiry of the period concerned.
(5) In subsection (4)(b) the reference to the acceptance of the undertaking concerned shall, in a case where the CMA has accepted a group of undertakings under section 154A, be treated as a reference to the acceptance of the last undertaking in the group; but undertakings which vary, supersede or revoke earlier undertakings shall be disregarded for the purposes of subsections (3)(b) and (4)(b).
(1) A penalty imposed under section 174A(1) or (1A) shall be of such amount as the relevant authority considers appropriate.
(2) In the case of a penalty imposed under section 174A(1)(a), the amount may 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) In the case of a penalty imposed under any of section 174A(1)(b), (c) or (1A), the amount shall be a fixed amount.
(4) A penalty imposed under section 174A(1) or (1A) 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; and
(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 ....
(4A) A penalty imposed under section 174A(1) or (1A) on any other person must not—
(a) in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;
(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;
(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6A) The Secretary of State may by regulations amend subsection (4)(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.
(7) Before making regulations under subsection (6A), the Secretary of State shall consult—
(a) the CMA; and
(b) such other persons as the Secretary of State considers appropriate.
(8) 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 provisional penalty notice under section 112(A1) (as applied by section 174A(10)); 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 earliest of the days mentioned in subsection (9).
(9) Those days are—
(a) the day on which the requirement of the notice concerned under section 174 is satisfied;
(b) the day which is the relevant day in the case in question for the purposes of section 174B.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) 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.
(12) Regulations under subsection (11)(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.
(13) Regulations under subsection (11) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (12)).
(1) The CMA must prepare and publish a statement of policy in relation to—
(a) the imposition of penalties under section 174A, and
(b) the enforcement of notices under section 174.
(2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 174A(1) or (1A).
(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 without the approval of the Secretary of State.
(1) Subsection (2) applies where
(a) the Secretary of State is under a duty to publish a report of the CMA under section 142;
(b) the Secretary of State is under a duty to lay the CMA’s advice under section 162(3) or 162A(8) before each House of Parliament.
(2) The Secretary of State may exclude a matter from the report or advice if he considers that publication of the matter , or the inclusion of it in the advice laid before Parliament, would be inappropriate.
(3) In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.
(4) The CMA shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).
(5) References in sections 136(4) to (6)... and 172(10) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.
(1) Subsection (2) applies where, on a market investigation reference, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.
(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
(1) Any person aggrieved by a decision of the CMA, the appropriate Minister, or the Secretary of State in connection with a reference or possible reference under this Part may apply to the Competition Appeal Tribunal for a review of that decision.
(2) For this purpose “decision”—
(za) does not include a decision whether to carry out functions under section 5 in a case where the CMA is, or would have been, required to publish a market study notice (see section 130A(1));
(a) does not include a decision to impose a penalty under section 167A(1) or 174A(1) or (1A); but
(b) includes a failure to take a decision permitted or required by this Part in connection with a reference or possible reference.
(3) Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.
(4) In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.
(5) The Competition Appeal Tribunal may—
(a) dismiss the application or quash the whole or part of the decision to which it relates; and
(b) where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.
(6) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.
(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.
(8) In this section—
“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and
“Tribunal rules” has the meaning given by section 15(1).
(1) Sections 116A (intentional destruction etc of documents), 117 (false or misleading information) and 125 (offences by bodies corporate) shall apply, with the modifications mentioned in subsection (2) below, for the purposes of this Part as they apply for the purposes of Part 3.
(1A) For the purposes of subsection (1), section 116A has effect as if—
(a) references to section 109 were references to section 174;
(b) the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).
(1B) For the purposes of subsection (1), section 117 has effect as if—
(a) references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A;
(b) the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).
(1) Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.
(2) Any power of the Secretary of State to make an order or regulations under this Part—
(a) may be exercised so as to make different provision for different cases or different purposes;
(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
(3) The power of the Secretary of State under section 131C(1), 136(9), 137(3), 138B(6), 144(2), 153(3) or 168(8) as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.
(4) An order made by the Secretary of State under section 131C(1), 137(3), 138B(6), 144(2), 158, 160 , 161, ... or under section 114(3)(b) or (4)(b) as applied by section 174A(10), is subject to the negative procedure.
(4A) Regulations made under section 167B(9) or 174D(11) are subject to the negative procedure.
(5) An order made by the Secretary of State under section 136(9) or 168(8), or section 128(6) as applied by section 183(2), is subject to the affirmative procedure.
(5A) Regulations made under paragraph (b) of the definition of “qualifying remedial action” in section 161B(3), or under section 167B(7) or 174D(6A), are subject to the affirmative procedure.
(5B) Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.
(6) An order made by the Secretary of State under section 153(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.
(7) In calculating the period of 28 days mentioned in subsection (6), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) If an order made by the Secretary of State ceases to have effect by virtue of subsection (6), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.
(9) If, apart from this subsection, an order made by the Secretary of State under section 153(3) would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.
(10) References in this section to an order made under this Part include references to an order made under section ... 114(3)(b) or (4)(b) as applied by section 174A(10) and an order made under section 128(6) as applied by section 183(2).
(11) Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
(12) Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) In this Part, unless the context otherwise requires—
“action” includes omission; and references to the taking of action include references to refraining from action;
“business” includes a professional practice and includes any other undertaking which is carried on for gain or reward or which is an undertaking in the course of which goods or services are supplied otherwise than free of charge;
“change of circumstances” includes any discovery that information has been supplied which is false or misleading in a material respect;
“consumer” means any person who is—
a person to whom goods are or are sought to be supplied (whether by way of sale or otherwise) in the course of a business carried on by the person supplying or seeking to supply them; or
a person for whom services are or are sought to be supplied in the course of a business carried on by the person supplying or seeking to supply them;
and who does not receive or seek to receive the goods or services in the course of a business carried on by him;
“customer” includes a customer who is not a consumer;
“enactment” includes an Act of the Scottish Parliament, Northern Ireland legislation and an enactment comprised in subordinate legislation, and includes an enactment whenever passed or made;
“enterprise” means the activities, or part of the activities, of a business;
“goods” includes buildings and other structures, and also includes ships, aircraft and hovercraft;
“Minister of the Crown” means the holder of an office in Her Majesty’s Government in the United Kingdom and includes the Treasury;
“modify” includes amend or repeal;
“notice” means notice in writing;
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30) and also includes an instrument made under an Act of the Scottish Parliament and an instrument made under Northern Ireland legislation; and
“supply”, in relation to the supply of goods, includes supply by way of sale, lease, hire or hire-purchase, and, in relation to buildings or other structures, includes the construction of them by a person for another person.
(2) Sections 127(1)(b) and (4) to (6) and 128 shall apply for the purposes of this Part as they apply for the purposes of Part 3.
(3) For the purposes of this Part a market investigation reference is finally determined if—
(a) where the reference is made under section 131 or 132—
(i) the period permitted by section 137 for preparing and publishing a report under section 136 has expired and no such report has been prepared and published;
(ii) such a report has been prepared and published within the period permitted by section 137 and contains the decision that there is no adverse effect on competition;
(iii) the CMA has decided under section 138(2) neither to accept undertakings under section 159 nor to make an order under section 161;...
(iiia) the CMA has accepted an undertaking fully in lieu of a report under section 154A; or
(iv) the CMA has accepted an undertaking under section 159 or made an order under section 161;
(b) where the reference is a restricted PI reference or a full PI reference—
(i) the period permitted by section 144 for the preparation of the report of the CMA under section 142 and for action to be taken in relation to it under section 143(1) or (3) or (as the case may be) 143A(2) or (3) has expired while the intervention notice is still in force and no such report has been so prepared or no such action has been taken;
(ii) the CMA has terminated under section 145(1) its investigation and the reference is finally determined under paragraph (a) above ...;
(iii) the report of the CMA has been prepared under section 142 and published under section 143(1) or (as the case may be) 143A(2) within the period permitted by section 144;
(iv) the intervention notice was revoked and the reference is finally determined under paragraph (a) above ...;
(v) the Secretary of State has failed to make and publish a decision under subsection (2) of section 146 within the period permitted by subsection (3) of that section or (as the case may be) under subsection (2) of section 146A within the period permitted by subsection (6) of that section and the reference is finally determined under paragraph (a) above;
(vi) the Secretary of State has decided under section 146(2) that no eligible public interest consideration is relevant and the reference is finally determined under paragraph (a) above ...;
(via) the Secretary of State has made no finding at all under section 146A(2) and the reference is finally determined under paragraph (a) above;
(vii) the Secretary of State has decided under 146(2) that a public interest consideration is relevant but has decided under section 147(2) neither to accept an undertaking under section 159 nor to make an order under section 161; ...
(viia) the Secretary of State has made an adverse public interest finding under section 146A(2) but has decided under section 147A(2) neither to accept an undertaking under section 159 nor to make an order under section 161;
(viii) the Secretary of State has decided under section 146(2) that a public interest consideration is relevant and has accepted an undertaking under section 159 or made an order under section 161; or
(ix) the Secretary of State has made an adverse public interest finding under section 146A(2) and has accepted an undertaking under section 159 or made an order under section 161.
(4) For the purposes of this Part the time when a market investigation reference is finally determined is—
(a) in a case falling within subsection (3)(a)(i) or (b)(i), the expiry of the time concerned;
(b) in a case falling within subsection (3)(a)(ii) or (b)(iii), the publication of the report;
(c) in a case falling within subsection (3)(a)(iv) or (b)(viii) or (ix), the acceptance of the undertaking concerned or (as the case may be) the making of the order concerned; and
(d) in any other case, the making of the decision or last decision concerned or the taking of the action concerned.
(5) The references in subsection (4) to subsections (3)(a)(i), (ii) and (iv) include those enactments as applied by subsection (3)(b)(ii), (iv), (v), (vi) or (via).
(6) In subsection (4)(c) the reference to the acceptance of the undertaking concerned or the making of the order concerned shall, in a case where the enforcement action concerned involves the acceptance of a group of undertakings, the making of a group of orders or the acceptance and making of a group of undertakings and orders, be treated as a reference to the acceptance or making of the last undertaking or order in the group; but undertakings or orders which vary, supersede or revoke earlier undertakings or orders shall be disregarded for the purposes of subsections (3)(a)(iv) and (b)(viii) and (ix) and (4)(c).
(7) Any duty to publish which is imposed on a person by this Part shall, unless the context otherwise requires, be construed as a duty on that person to publish in such manner as that person considers appropriate for the purpose of bringing the matter concerned to the attention of those likely to be affected by it.
In this Part, the expressions listed in the left-hand column have the meaning given by, or are to be interpreted in accordance with, the provisions listed in the right-hand column.
Expression | Provision of this Act
Action (and the taking of action) | Section 183(1)
Adverse effect on competition | Section 134(2) and (2A)
Adverse public interest finding | Section 146A(3)
Appropriate Minister | Section 132(5)
Business | Section 183(1)
Change of circumstances | Section 183(1)
The CMA | Section 273
. . . | . . .
Consumer | Section 183(1)
Cross-market reference | Section 131(6)
Customer | Section 183(1)
Date of market investigation reference | Section 137(7)
Detrimental effect on customers | Section 134(5)
Enactment | Section 183(1)
Enforcement order | Section 162(8)
Enforcement undertaking | Section 162(8)
Enterprise | Section 183(1)
Feature of a market | Section 131(2)
Final determination of market investigation reference | Section 183(3) to (6)
Full PI reference | Section 140A(12)
Goods | Section 183(1)
Intervention notice | Section 139(3)
Market for goods or services | Section 131(6)
Market in the United Kingdom | Section 131(6)
Market investigation reference | Section 131(6)
Market study notice | Section 130A(1)
Market study report | Section 131B(4)
Minister of the Crown | Section 183(1)
Modify | Section 183(1)
Notice | Section 183(1)
. . . | . . .
Ordinary reference | Section 131(6)
Public interest consideration | Section 139(5)
Public interest consideration being finalised | Section 139(7)
Public interest expert | Section 141B(4)
Publish | Section 183(7)
Relevant customer benefit | Section 134(8)
Relevant sectoral enactment | Section 136(7)
Relevant sectoral regulator | Section 136(8)
Reports of the CMA | Section 177(5)
Restricted PI reference | Section 140A(12)
Subordinate legislation | Section 183(1)
Supply (in relation to the supply of goods) | Section 183(1)
The supply of services (and a market for services etc.) | Section 183(2)
(1) An individual is guilty of an offence if he ... agrees with one or more other persons to make or implement, or to cause to be made or implemented, arrangements of the following kind relating to at least two undertakings (A and B).
(2) The arrangements must be ones which, if operating as the parties to the agreement intend, would—
(a) directly or indirectly fix a price for the supply by A in the United Kingdom (otherwise than to B) of a product or service,
(b) limit or prevent supply by A in the United Kingdom of a product or service,
(c) limit or prevent production by A in the United Kingdom of a product,
(d) divide between A and B the supply in the United Kingdom of a product or service to a customer or customers,
(e) divide between A and B customers for the supply in the United Kingdom of a product or service, or
(f) be bid-rigging arrangements.
(3) Unless subsection (2)(d), (e) or (f) applies, the arrangements must also be ones which, if operating as the parties to the agreement intend, would—
(a) directly or indirectly fix a price for the supply by B in the United Kingdom (otherwise than to A) of a product or service,
(b) limit or prevent supply by B in the United Kingdom of a product or service, or
(c) limit or prevent production by B in the United Kingdom of a product.
(4) In subsections (2)(a) to (d) and (3), references to supply or production are to supply or production in the appropriate circumstances (for which see section 189).
(5) “Bid-rigging arrangements” are arrangements under which, in response to a request for bids for the supply of a product or service in the United Kingdom, or for the production of a product in the United Kingdom—
(a) A but not B may make a bid, or
(b) A and B may each make a bid but, in one case or both, only a bid arrived at in accordance with the arrangements.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) “Undertaking” has the same meaning as in Part 1 of the 1998 Act.
(8) This section is subject to section 188A.
188A Circumstances in which cartel offence not committed
(1) An individual does not commit an offence under section 188(1) if, under the arrangements—
(a) in a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, customers would be given relevant information about the arrangements before they enter into agreements for the supply to them of the product or service so affected,
(b) in the case of bid-rigging arrangements, the person requesting bids would be given relevant information about them at or before the time when a bid is made, or
(c) in any case, relevant information about the arrangements would be published, before the arrangements are implemented, in the manner specified at the time of the making of the agreement in an order made by the Secretary of State.
(2) In subsection (1), “relevant information” means—
(a) the names of the undertakings to which the arrangements relate,
(b) a description of the nature of the arrangements which is sufficient to show why they are or might be arrangements of the kind to which section 188(1) applies,
(c) the products or services to which they relate, and
(d) such other information as may be specified in an order made by the Secretary of State.
(3) An individual does not commit an offence under section 188(1) if the agreement is made in order to comply with a legal requirement.
(4) In subsection (3), “legal requirement” has the same meaning as in paragraph 5 of Schedule 3 to the Competition Act 1998.
(5) A power to make an order under this section—
(a) is exercisable by statutory instrument,
(b) may be exercised so as to make different provision for different cases or different purposes, and
(c) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.
(6) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) In a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, it is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from customers at all times before they enter into agreements for the supply to them of the product or service.
(2) It is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from the CMA.
(3) It is a defence for an individual charged with an offence under section 188(1) to show that, before the making of the agreement, he or she took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or (as the case may be) their implementation.
(1) For section 188(2)(a), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by B in the United Kingdom.
(2) For section 188(2)(b), the appropriate circumstances are that A’s supply of the product or service would be at a level in the supply chain—
(a) at which the product or service would at the same time be supplied by B in the United Kingdom, or
(b) at which supply by B in the United Kingdom of the product or service would be limited or prevented by the arrangements.
(3) For section 188(2)(c), the appropriate circumstances are that A’s production of the product would be at a level in the production chain—
(a) at which the product would at the same time be produced by B in the United Kingdom, or
(b) at which production by B in the United Kingdom of the product would be limited or prevented by the arrangements.
(4) For section 188(2)(d), the appropriate circumstances are that A’s supply of the product or service would be at the same level in the supply chain as B’s.
(5) For section 188(3)(a), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain at which the product or service would at the same time be supplied by A in the United Kingdom.
(6) For section 188(3)(b), the appropriate circumstances are that B’s supply of the product or service would be at a level in the supply chain—
(a) at which the product or service would at the same time be supplied by A in the United Kingdom, or
(b) at which supply by A in the United Kingdom of the product or service would be limited or prevented by the arrangements.
(7) For section 188(3)(c), the appropriate circumstances are that B’s production of the product would be at a level in the production chain—
(a) at which the product would at the same time be produced by A in the United Kingdom, or
(b) at which production by A in the United Kingdom of the product would be limited or prevented by the arrangements.
(1) A person guilty of an offence under section 188 is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
(2) In England and Wales and Northern Ireland, proceedings for an offence under section 188 may be instituted only—
(a) by the Director of the Serious Fraud Office, or
(b) by or with the consent of the CMA.
(3) No proceedings may be brought for an offence under section 188 in respect of an agreement outside the United Kingdom, unless it has been implemented in whole or in part in the United Kingdom.
(4) Where, for the purpose of the investigation or prosecution of offences under section 188, the CMA gives a person written notice under this subsection, no proceedings for an offence under section 188 that falls within a description specified in the notice may be brought against that person in England and Wales or Northern Ireland except in circumstances specified in the notice.
(1) The CMA must prepare and publish guidance on the principles to be applied in determining, in any case, whether proceedings for an offence under section 188(1) should be instituted.
(2) The CMA may at any time issue revised or new guidance.
(3) Guidance published by the CMA under this section is to be published in such manner as it considers appropriate.
(4) In preparing guidance under this section the CMA must consult—
(a) the Director of the Serious Fraud Office;
(b) the Lord Advocate; and
(c) such other persons as it considers appropriate.
(1) The CMA may conduct an investigation if there are reasonable grounds for suspecting that an offence under section 188 has been committed.
(2) The powers of the CMA under sections 193 and 194 are exercisable, but only for the purposes of an investigation under subsection (1), in any case where it appears to the CMA that there is good reason to exercise them for the purpose of investigating the affairs, or any aspect of the affairs, of any person (“the person under investigation”).
(1) The CMA may by notice in writing require the person under investigation, or any other person who it has reason to believe has relevant information, to answer questions, or otherwise provide information, with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.
(2) The CMA may by notice in writing require the person under investigation, or any other person, to produce, at a specified place and either at a specified time or forthwith, specified documents, or documents of a specified description, which appear to the CMA to relate to any matter relevant to the investigation.
(3) If any such documents are produced, the CMA may—
(a) take copies or extracts from them;
(b) require the person producing them to provide an explanation of any of them.
(4) If any such documents are not produced, the CMA may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.
(5) A notice under subsection (1) or (2) must indicate—
(a) the subject matter and purpose of the investigation; and
(b) the nature of the offences created by section 201.