Part I Competition _cross-notes

Chapter I Agreements _cross-notes

Introduction

1 Enactments replaced. _I1,I2

The following shall cease to have effect—

(a)the Restrictive Practices Court Act 1976 (c. 33),

(b)the Restrictive Trade Practices Act 1976 (c. 34),

(c)the Resale Prices Act 1976 (c. 53), and

(d)the Restrictive Trade Practices Act 1977 (c. 19).

The prohibition

2 Agreements etc. preventing, restricting or distorting competition. _cross-notes

[^F2 (1)Subject to section 3, agreements between undertakings, decisions by associations of undertakings or concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom and which—

(a)in the case of agreements, decisions or practices implemented, or intended to be implemented in the United Kingdom, may affect trade in the United Kingdom, or

(b)in any other case, are likely to have an immediate, substantial and foreseeable effect on trade within the United Kingdom,

are prohibited unless they are exempt in accordance with the provisions of this Part.^F2]

(2)Subsection (1) applies, in particular, to agreements, decisions or practices which—

(a)directly or indirectly fix purchase or selling prices or any other trading conditions;

(b)limit or control production, markets, technical development or investment;

(c)share markets or sources of supply;

(d)apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e)make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

^F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any agreement or decision which is prohibited by subsection (1) is void.

(5)A provision of this Part which is expressed to apply to, or in relation to, an agreement is to be read as applying equally to, or in relation to, a decision by an association of undertakings or a concerted practice (but with any necessary modifications).

(6)Subsection (5) does not apply where the context otherwise requires.

(7) In this section “ the United Kingdom ” means, in relation to an agreement which operates or is intended to operate only in a part of the United Kingdom, that part.

(8) The prohibition imposed by subsection (1) is referred to in this Act as “ the Chapter I prohibition ”.

Excluded agreements

3 Excluded agreements. _{cross-notes I3}

(1)The Chapter I prohibition does not apply in any of the cases in which it is excluded by or as a result of—

(a)Schedule 1 (mergers and concentrations);

(b)Schedule 2 (competition scrutiny under other enactments);

(c)^F4Schedule 3 (planning obligations and other general exclusions). ...

^F5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter I prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision (whether or not it has been added by an order under this subsection).

(3)The Secretary of State may at any time by order amend Schedule 3, with respect to the Chapter I prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision—

(i)added by an order under this subsection; or

(ii)^F6included in paragraph 1 ... or 9 of Schedule 3.

(4)The power under subsection (3) to provide for an additional exclusion may be exercised only if it appears to the Secretary of State that agreements which fall within the additional exclusion—

(a)do not in general have an adverse effect on competition, or

(b)are, in general, best considered under Chapter II or [^F7the ^M1Fair Trading Act 1973^F7][^F7 the Enterprise Act 2002^F7] .

(5)An order under subsection (2)(a) or (3)(a) may include provision (similar to that made with respect to any other exclusion provided by the relevant Schedule) for the exclusion concerned to cease to apply to a particular agreement.

(6)Schedule 3 also gives the Secretary of State power to exclude agreements from the Chapter I prohibition in certain circumstances.

Exemptions

4 Individual exemptions.

[^F8 (1)The [^F9 OFT^F9] may grant an exemption from the Chapter I prohibition with respect to a particular agreement if—

(a)a request for an exemption has been made to [^F9 it^F9] under section 14 by a party to the agreement; and

(b)the agreement is one to which section 9 applies.

(2)An exemption granted under this section is referred to in this Part as an individual exemption.

(3)The exemption—

(a)may be granted subject to such conditions or obligations as the [^F9 OFT^F9] considers it appropriate to impose; and

(b)has effect for such period as the [^F9 OFT^F9] considers appropriate.

(4)That period must be specified in the grant of the exemption.

(5)An individual exemption may be granted so as to have effect from a date earlier than that on which it is granted.

(6)On an application made in such way as may be specified by rules under section 51, the [^F9 OFT^F9] may extend the period for which an exemption has effect; but, if the rules so provide, [^F9 it^F9] may do so only in specified circumstances.^F8]

5 Cancellation etc. of individual exemptions.

[^F10 (1)If the [^F11 OFT^F11] has reasonable grounds for believing that there has been a material change of circumstance since [^F11 it^F11] granted an individual exemption, [^F11 it^F11] may by notice in writing—

(a)cancel the exemption;

(b)vary or remove any condition or obligation; or

(c)impose one or more additional conditions or obligations.

(2)If the [^F11 OFT^F11] has a reasonable suspicion that the information on which [^F11 it^F11] based [^F11 its^F11] decision to grant an individual exemption was incomplete, false or misleading in a material particular, [^F11 it^F11] may by notice in writing take any of the steps mentioned in subsection (1).

(3)Breach of a condition has the effect of cancelling the exemption.

(4)Failure to comply with an obligation allows the [^F11 OFT^F11] , by notice in writing, to take any of the steps mentioned in subsection (1).

(5)Any step taken by the [^F11 OFT^F11] under subsection (1), (2) or (4) has effect from such time as may be specified in the notice.

(6)If an exemption is cancelled under subsection (2) or (4), the date specified in the notice cancelling it may be earlier than the date on which the notice is given.

(7)The [^F11 OFT^F11] may act under subsection (1), (2) or (4) on [^F11 its^F11] own initiative or on a complaint made by any person.^F10]

6 Block exemptions. _cross-notes

(1)If agreements which fall within a particular category of agreement are, in the opinion of the [^F12CMA^F12] , likely to be [^F13exempt agreements^F13] , the [^F12CMA^F12] may recommend that the Secretary of State make an order specifying that category for the purposes of this section.

(2) The Secretary of State may make an order (“ a block exemption order ”) giving effect to such a recommendation—

(a)in the form in which the recommendation is made; or

(b)subject to such modifications as he considers appropriate.

(3)An agreement which falls within a category specified in a block exemption order is exempt from the Chapter I prohibition.

(4)An exemption under this section is referred to in this Part as a block exemption.

(5)A block exemption order may impose conditions or obligations subject to which a block exemption is to have effect.

(6)A block exemption order may provide—

(a)that breach of a condition imposed by the order has the effect of cancelling the block exemption in respect of an agreement;

(b)that if there is a failure to comply with an obligation imposed by the order, the [^F12CMA^F12] may, by notice in writing, cancel the block exemption in respect of the agreement;

(c)that if the [^F12CMA^F12] considers that a particular agreement is not [^F14an exempt agreement^F14] , [^F15it^F15] may cancel the block exemption in respect of that agreement.

(7)A block exemption order may provide that the order is to cease to have effect at the end of a specified period.

[^F16 (8)In this section—

• “exempt agreement” means an agreement which is exempt from the Chapter I prohibition as a result of section 9; and

• “specified” means specified in a block exemption order. ^F16]

7 Block exemptions: opposition.

[^F17 (1)A block exemption order may provide that a party to an agreement which—

(a)does not qualify for the block exemption created by the order, but

(b)satisfies specified criteria,

may notify the [^F18OFT^F18] of the agreement for the purposes of subsection (2).

(2)An agreement which is notified under any provision included in a block exemption order by virtue of subsection (1) is to be treated, as from the end of the notice period, as falling within a category specified in a block exemption order unless the [^F18OFT^F18] —

(a)is opposed to its being so treated; and

(b)gives notice in writing to the party concerned of [^F18 its^F18] opposition before the end of that period.

(3)If the [^F18OFT^F18] gives notice of [^F18 its^F18] opposition under subsection (2), the notification under subsection (1) is to be treated as both notification under section 14 and as a request for an individual exemption made under subsection (3) of that section.

(4) In this section “ notice period ” means such period as may be specified with a view to giving the [^F18 OFT ^F18] sufficient time to consider whether to oppose under subsection (2). ^F17]

8 Block exemptions: procedure. _cross-notes

(1)Before making a recommendation under section 6(1), the [^F19CMA^F19] must—

(a)publish details of [^F20its^F20] proposed recommendation in such a way as [^F20it^F20] thinks most suitable for bringing it to the attention of those likely to be affected; and

(b)consider any representations about it which are made to [^F20it^F20] .

(2)If the Secretary of State proposes to give effect to such a recommendation subject to modifications, he must inform the [^F19CMA^F19] of the proposed modifications and take into account any comments made by the [^F19CMA^F19] .

(3)If, in the opinion of the [^F19CMA^F19] , it is appropriate to vary or revoke a block exemption order[^F21 it^F21] may make a recommendation to that effect to the Secretary of State.

(4)Subsection (1) also applies to any proposed recommendation under subsection (3).

(5)Before exercising [^F20its^F20] power to vary or revoke a block exemption order (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—

(a)inform the [^F22CMA^F22] of the proposed variation or revocation; and

(b)take into account any comments made by the [^F22CMA^F22] .

(6)A block exemption order may provide for a block exemption to have effect from a date earlier than that on which the order is made.

9 [^F23Exempt agreements^F23] .

[^F24 (1)^F24] [^F25 An agreement is exempt from the Chapter I prohibition if it^F25] —

(a)contributes to—

(i)improving production or distribution, or

(ii)promoting technical or economic progress,

while allowing consumers a fair share of the resulting benefit; [^F26and^F26]

(b)does not—

(i)impose on the undertakings concerned restrictions which are not indispensable to the attainment of those objectives; or

(ii)afford the undertakings concerned the possibility of eliminating competition in respect of a substantial part of the products in question.

[^F27 (2)In any proceedings in which it is alleged that the Chapter I prohibition is being or has been infringed by an agreement, any undertaking or association of undertakings claiming the benefit of subsection (1) shall bear the burden of proving that the conditions of that subsection are satisfied.^F27]

10 [[^F28,F29Assimilated^F29] exemptions^F28] . _cross-notes

[^F30 (A1)An agreement is exempt from the Chapter I prohibition if it falls within a category of agreements specified as exempt in [^F31 an assimilated^F31] block exemption regulation.^F30]

^F32(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F33(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An exemption from the Chapter I prohibition under this section is referred to in this Part as [^F34an assimilated^F34][^F35 exemption^F35] .

(4)[^F36 An assimilated^F36][^F37 exemption^F37] —

^F38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)ceases to have effect—

(i)if the relevant [[^F39,F40 assimilated^F40] block exemption regulation^F39] ceases to have effect; or

(ii)on being cancelled by virtue of subsection (5) or (7).

(5)In such circumstances and manner as may be specified in rules made under section 51, the [^F41CMA^F41] may—

(a)impose conditions or obligations subject to which [^F42an assimilated^F42][^F43 exemption^F43] is to have effect [^F44in respect of an agreement^F44] ;

(b)vary or remove any such condition or obligation;

(c)impose one or more additional conditions or obligations;

(d)cancel the exemption [^F45in respect of an agreement^F45] .

(6)In such circumstances as may be specified in rules made under section 51, the date from which cancellation of an exemption is to take effect may be earlier than the date on which notice of cancellation is given.

(7)Breach of a condition imposed by the [^F46CMA^F46] has the effect of cancelling the exemption.

(8)In exercising [^F47its^F47] powers under this section, the [^F48CMA^F48] may require any person who is a party to the agreement in question to give [^F47it^F47] such information as [^F47it^F47] may require.

^F49(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F49(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F49(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F50 (12) In this Part, “ [^F51 assimilated ^F51] block exemption regulation ” means the following regulations as amended from time to time—

(a)Council Regulation (EC) 169/2009 applying rules of competition to transport by rail, road and inland waterway;

(b)Commission Regulation (EC) 906/2009 on the application of Article 81(3) of the Treaty to certain categories of agreements, decisions and concerted practices between liner shipping companies (consortia);

(c)Commission Regulation (EU) 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices;

(d)Commission Regulation (EU) 461/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector;

(e)Commission Regulation (EU) 1217/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of research and development agreements;

(f)Commission Regulation (EU) 1218/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements;

(g)Commission Regulation (EU) 316/2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements.^F50]

[^F5210A Power to vary etc [^F53assimilated^F53] block exemption regulations _cross-notes

(1)The Secretary of State may by regulations vary or revoke [^F54 an assimilated^F54] block exemption regulation.

(2)In exercising the power under subsection (1), the Secretary of State must have regard to the conditions specified in section 9(1) for exemption from the Chapter 1 prohibition.

(3)If, in the opinion of the CMA, it is appropriate to vary or revoke [^F55 an assimilated^F55] block exemption regulation, the CMA may make a recommendation to that effect to the Secretary of State.

(4)Before making a recommendation under subsection (3), the CMA must—

(a)publish details of its proposed recommendation in such a way as it thinks most suitable for bringing it to the attention of those likely to be affected; and

(b)consider any representations about it which are made to it.

(5)Before exercising the power to vary or revoke [^F56 an assimilated^F56] block exemption regulation (in a case where there has been no recommendation under subsection (3)), the Secretary of State must—

(a)inform the CMA of the proposed variation or revocation; and

(b)take into account any comments made by the CMA.^F52]

^F5711 Exemption for certain other agreements.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notification

12 Requests for [^F58OFT^F58] to examine agreements. _I4

[^F59 (1)Sections 13 and 14 provide for an agreement to be examined by the [^F58OFT^F58] on the application of a party to the agreement who thinks that it may infringe the Chapter I prohibition.

(2)Schedule 5 provides for the procedure to be followed—

(a)by any person making such an application; and

(b)by the [^F58OFT^F58] , in considering such an application.

(3)The Secretary of State may by regulations make provision as to the application of sections 13 to 16 and Schedule 5, with such modifications (if any) as may be prescribed, in cases where the [^F58OFT^F58] —

(a)has given a direction withdrawing an exclusion; or

(b)is considering whether to give such a direction.^F59]

13 Notification for guidance. _cross-notes

[^F59 (1)A party to an agreement who applies for the agreement to be examined under this section must—

(a)notify the [^F60 OFT^F60] of the agreement; and

(b)apply to [^F60 the OFT^F60] for guidance.

(2)On an application under this section, the [^F60 OFT^F60] may give the applicant guidance as to whether or not, in [^F60 its^F60] view, the agreement is likely to infringe the Chapter I prohibition.

(3)If the [^F60 OFT^F60] considers that the agreement is likely to infringe the prohibition if it is not exempt, [^F60 its^F60] guidance may indicate—

(a)whether the agreement is likely to be exempt from the prohibition under—

(i)a block exemption;

(ii)a parallel exemption; or

(iii)a section 11 exemption; or

(b)whether [^F60 it^F60] would be likely to grant the agreement an individual exemption if asked to do so.

(4)If an agreement to which the prohibition applies has been notified to the [^F60 OFT^F60] under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—

(a)beginning with the date on which notification was given; and

(b)ending with such date as may be specified in a notice in writing given to the applicant by the [^F60 OFT^F60] when the application has been determined.

(5)The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.^F59]

14 Notification for a decision. _cross-notes

[^F59 (1)A party to an agreement who applies for the agreement to be examined under this section must—

(a)notify the [^F61 OFT^F61] of the agreement; and

(b)apply to [^F61 the OFT^F61] for a decision.

(2)On an application under this section, the [^F61 OFT^F61] may make a decision as to—

(a)whether the Chapter I prohibition has been infringed; and

(b)if it has not been infringed, whether that is because of the effect of an exclusion or because the agreement is exempt from the prohibition.

(3)If an agreement is notified to the [^F61 OFT^F61] under this section, the application may include a request for the agreement to which it relates to be granted an individual exemption.

(4)If an agreement to which the prohibition applies has been notified to the [^F61 OFT^F61] under this section, no penalty is to be imposed under this Part in respect of any infringement of the prohibition by the agreement which occurs during the period—

(a)beginning with the date on which notification was given; and

(b)ending with such date as may be specified in a notice in writing given to the applicant by the [^F61 OFT^F61] when the application has been determined.

(5)The date specified in a notice under subsection (4)(b) may not be earlier than the date on which the notice is given.^F59]

15 Effect of guidance. _cross-notes

[^F59 (1)This section applies to an agreement if the [^F62 OFT^F62] has determined an application under section 13 by giving guidance that—

(a)the agreement is unlikely to infringe the Chapter I prohibition, regardless of whether or not it is exempt;

(b)the agreement is likely to be exempt under—

(i)a block exemption;

(ii)a parallel exemption; or

(iii)a section 11 exemption; or

(c)[^F62 it^F62] would be likely to grant the agreement an individual exemption if asked to do so.

(2)The [^F62 OFT^F62] is to take no further action under this Part with respect to an agreement to which this section applies, unless—

(a)[^F62 it^F62] has reasonable grounds for believing that there has been a material change of circumstance since [^F62 it^F62] gave [^F62 its^F62] guidance;

(b)[^F62 it^F62] has a reasonable suspicion that the information on which [^F62 it^F62] based [^F62 its^F62] guidance was incomplete, false or misleading in a material particular;

(c)one of the parties to the agreement applies to [^F62 it^F62] for a decision under section 14 with respect to the agreement; or

(d)a complaint about the agreement has been made to [^F62 it^F62] by a person who is not a party to the agreement.

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4)But the [^F62 OFT^F62] may remove the immunity given by subsection (3) if—

(a)[^F62 it^F62] takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b)[^F62 it^F62] considers it likely that the agreement will infringe the prohibition; and

(c)[^F62 it^F62] gives notice in writing to the party on whose application the guidance was given that [^F62 it^F62] is removing the immunity as from the date specified in [^F62 its^F62] notice.

(5)If the [^F62 OFT^F62] has a reasonable suspicion that information—

(a)on which [^F62 it^F62] based [^F62 its^F62] guidance, and

(b)which was provided to [^F62 it^F62] by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.^F59]

16 Effect of a decision that the Chapter I prohibition has not been infringed. _cross-notes

[^F59 (1)This section applies to an agreement if the [^F63 OFT^F63] has determined an application under section 14 by making a decision that the agreement has not infringed the Chapter I prohibition.

(2)The [^F63 OFT^F63] is to take no further action under this Part with respect to the agreement unless—

(a)[^F63 it^F63] has reasonable grounds for believing that there has been a material change of circumstance since [^F63 it^F63] gave [^F63 its^F63] decision; or

(b)[^F63 it^F63] has a reasonable suspicion that the information on which [^F63 it^F63] based [^F63 its^F63] decision was incomplete, false or misleading in a material particular.

(3)No penalty may be imposed under this Part in respect of any infringement of the Chapter I prohibition by an agreement to which this section applies.

(4)But the [^F63 OFT^F63] may remove the immunity given by subsection (3) if—

(a)[^F63 it^F63] takes action under this Part with respect to the agreement in one of the circumstances mentioned in subsection (2);

(b)[^F63 it^F63] considers that it is likely that the agreement will infringe the prohibition; and

(c)[^F63 it^F63] gives notice in writing to the party on whose application the decision was made that [^F63 it^F63] is removing the immunity as from the date specified in [^F63 its^F63] notice.

(5)If the [^F63 OFT^F63] has a reasonable suspicion that information—

(a)on which [^F63 it^F63] based [^F63 its^F63] decision, and

(b)which was provided to [^F63 it^F63] by a party to the agreement,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.^F59]

Chapter II Abuse of Dominant Position

Introduction

17 Enactments replaced.

^M2Sections 2 to 10 of the Competition Act 1980 (control of anti-competitive practices) shall cease to have effect.

The prohibition

18 Abuse of dominant position. _cross-notes

(1)Subject to section 19, any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom.

(2)Conduct may, in particular, constitute such an abuse if it consists in—

(a)directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

(b)limiting production, markets or technical development to the prejudice of consumers;

(c)applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(d)making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.

(3)In this section—

• “ dominant position ” means a dominant position within the United Kingdom; and

• “ the United Kingdom ” means the United Kingdom or any part of it.

(4) The prohibition imposed by subsection (1) is referred to in this Act as “ the Chapter II prohibition ”.

Excluded cases

19 Excluded cases.

(1)The Chapter II prohibition does not apply in any of the cases in which it is excluded by or as a result of—

(a)Schedule 1 (mergers and concentrations); or

(b)Schedule 3 (general exclusions).

(2)The Secretary of State may at any time by order amend Schedule 1, with respect to the Chapter II prohibition, by—

(a)providing for one or more additional exclusions; or

(b)amending or removing any provision (whether or not it has been added by an order under this subsection).

^F64(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Schedule 3 also gives the Secretary of State power to provide that the Chapter II prohibition is not to apply in certain circumstances.

Notification

20 Requests for [^F65OFT^F65] to consider conduct.

[^F66 (1)Sections 21 and 22 provide for conduct of a person which that person thinks may infringe the Chapter II prohibition to be considered by the [^F65 OFT^F65] on the application of that person.

(2)Schedule 6 provides for the procedure to be followed—

(a)by any person making an application, and

(b)by the [^F65 OFT^F65] , in considering an application.^F66]

21 Notification for guidance.

[^F66 (1)A person who applies for conduct to be considered under this section must—

(a)notify the [^F67 OFT^F67] of it; and

(b)apply to [^F67 the OFT^F67] for guidance.

(2)On an application under this section, the [^F67 OFT^F67] may give the applicant guidance as to whether or not, in [^F67 its^F67] view, the conduct is likely to infringe the _dfnChapter II prohibition.^F66]

22 Notification for a decision.

[^F66 (1)A person who applies for conduct to be considered under this section must—

(a)notify the [^F68 OFT^F68] of it; and

(b)apply to [^F68 the OFT^F68] for a decision.

(2)On an application under this section, the [^F68 OFT^F68] may make a decision as to—

(a)whether the _dfnChapter II prohibition has been infringed; and

(b)if it has not been infringed, whether that is because of the effect of an exclusion.^F66]

23 Effect of guidance.

[^F66 (1)This section applies to conduct if the [^F69 OFT^F69] has determined an application under section 21 by giving guidance that the conduct is unlikely to infringe the _dfnChapter II prohibition.

(2)The [^F69 OFT^F69] is to take no further action under this Part with respect to the conduct to which this section applies, unless—

(a)[^F69 it^F69] has reasonable grounds for believing that there has been a material change of circumstance since [^F69 it^F69] gave [^F69 its^F69] guidance;

(b)[^F69 it ^F69] has a reasonable suspicion that the information on which [^F69 it^F69] based [^F69 its^F69] guidance was incomplete, false or misleading in a material particular; or

(c)a complaint about the conduct has been made to [^F69 it^F69] .

(3)No penalty may be imposed under this Part in respect of any infringement of the _dfnChapter II prohibition by conduct to which this section applies.

(4)But the [^F69 OFT^F69] may remove the immunity given by subsection (3) if—

(a)[^F69 it ^F69] takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b)[^F69 it ^F69] considers that it is likely that the conduct will infringe the prohibition; and

(c)[^F69 it ^F69] gives notice in writing to the undertaking on whose application the guidance was given that [^F69 it^F69] is removing the immunity as from the date specified in [^F69 its^F69] notice.

(5)If the [^F69 OFT^F69] has a reasonable suspicion that information—

(a)on which [^F69 it^F69] based [^F69 its^F69] guidance, and

(b)which was provided to [^F69 it^F69] by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.^F66]

24 Effect of a decision that the Chapter II prohibition has not been infringed.

[^F66 (1)This section applies to conduct if the [^F70 OFT^F70] has determined an application under section 22 by making a decision that the conduct has not infringed the Chapter II prohibition.

(2)The [^F70 OFT^F70] is to take no further action under this Part with respect to the conduct unless—

(a)[^F70 it^F70] has reasonable grounds for believing that there has been a material change of circumstance since [^F70 it^F70] gave [^F70 its^F70] decision; or

(b)[^F70 it^F70] has a reasonable suspicion that the information on which [^F70 it^F70] based [^F70 its^F70] decision was incomplete, false or misleading in a material particular.

(3)No penalty may be imposed under this Part in respect of any infringement of the _dfnChapter II prohibition by conduct to which this section applies.

(4)But the [^F70 OFT^F70] may remove the immunity given by subsection (3) if—

(a)[^F70 it^F70] takes action under this Part with respect to the conduct in one of the circumstances mentioned in subsection (2);

(b)[^F70 it^F70] considers that it is likely that the conduct will infringe the prohibition; and

(c)[^F70 it^F70] gives notice in writing to the undertaking on whose application the decision was made that [^F70 it^F70] is removing the immunity as from the date specified in [^F70 its^F70] notice.

(5)If the [^F70 OFT^F70] has a reasonable suspicion that information—

(a)on which [^F70 it^F70] based [^F70 its^F70] decision, and

(b)which was provided to [^F70 it^F70] by an undertaking engaging in the conduct,

was incomplete, false or misleading in a material particular, the date specified in a notice under subsection (4)(c) may be earlier than the date on which the notice is given.^F66]

Chapter III Investigation and Enforcement _cross-notes

Investigations

[^F7125 Power of [^F72CMA^F72] to investigate

(1)In any of the following cases, the [^F73 CMA^F73] may conduct an investigation.

(2)The first case is where there are reasonable grounds for suspecting that there is an agreement which—

(a)may affect trade within the United Kingdom; and

(b)has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.

^F74(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The third case is where there are reasonable grounds for suspecting that the _dfnChapter II prohibition has been infringed.

^F75(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The fifth case is where there are reasonable grounds for suspecting that, at some time in the past, there was an agreement which at that time—

(a)may have affected trade within the United Kingdom; and

(b)had as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.

^F76(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Subsection (2) does not permit an investigation to be conducted in relation to an agreement if the [^F77 CMA^F77] —

(a)considers that the agreement is exempt from the Chapter I prohibition as a result of a block exemption or [^F78 an assimilated^F78] [^F79 exemption^F79] ; and

(b)does not have reasonable grounds for suspecting that the circumstances may be such that it could exercise its power to cancel the exemption.

^F80(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)Subsection (6) does not permit an investigation to be conducted in relation to any agreement if the [^F77 CMA^F77] considers that, at the time in question, the agreement was exempt from the Chapter I prohibition as a result of a block exemption or [^F81 an assimilated^F81] [^F82 exemption^F82] .

^F83(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12)It is immaterial for the purposes of subsection (6) ^F84... whether the agreement in question remains in existence.^F71]

[^F8525A Power of CMA to publish notice of investigation [^F86etc^F86]

(1)Where the CMA decides to conduct an investigation it may publish a notice which may, in particular—

(a)state its decision to do so;

(b)indicate which of [^F87 subsections (2), (4) and (6)^F87] of section 25 the investigation falls under;

(c)summarise the matter being investigated;

(d)identify any undertaking whose activities are being investigated as part of the investigation;

(e)identify the market which is or was affected by the matter being investigated.

[^F88 (1A)Where the CMA assists an overseas regulator in carrying out any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the CMA may publish a notice which may, in particular—

(a)state its decision to do so;

(b)identify the overseas regulator concerned;

(c)summarise the matter in respect of which the assistance is to be provided;

(d)identify any undertaking in respect of which the assistance is to be provided;

(e)identify the market which is or was affected by the matter in respect of which the assistance is to be provided.^F88]

(2)Section 57 does not apply to a notice under subsection (1) [^F89 or (1A)^F89] to the extent that it includes information other than information mentioned in [^F90 the subsection concerned^F90] .

(3)Subsection (4) applies if—

(a)the CMA has published a notice under subsection (1) which identifies an undertaking whose activities are being investigated, and

(b)the CMA subsequently decides (without making a decision within the meaning given by section 31(2)) to terminate the investigation of the activities of the undertaking so identified.

(4)The CMA must publish a notice stating that the activities of the undertaking in question are no longer being investigated.^F85]

[^F9125B Duty to preserve documents relevant to investigations

(1) Subsection (2) applies where a person knows or suspects that—

[^F92 (a)^F92] an investigation by the CMA under section 25 is being or is likely to be carried out [^F93 , or

(b)the CMA is assisting, or is likely to assist, an overseas regulator in carrying out any of its functions which correspond or are similar to the functions of the CMA under this Part (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024).^F93]

(2)The person must not—

(a)falsify, conceal, destroy or otherwise dispose of, or

(b)cause or permit the falsification, concealment, destruction or disposal of,

a document which the person knows or suspects is or would be relevant to the investigation [^F94 or to the provision of such assistance^F94] .

(3)In this section, the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.^F91]

26 [^F95Investigations: powers to require documents and information^F95] _cross-notes

(1)For the purposes of an investigation[^F96 under section 25^F96] , the [^F97CMA^F97] may require any person to produce to [^F98it^F98] a specified document, or to provide [^F98it^F98] with specified information, which [^F98it^F98] considers relates to any matter relevant to the investigation.

(2)The power conferred by subsection (1) is to be exercised by a notice in writing.

(3)^F99A notice under subsection (2) must ...—

(a)[^F100 indicate^F100] the subject matter and purpose of the investigation; and

[^F101 (b)include information about the possible consequences of failing to comply with the notice.^F101]

(4) In subsection (1) “ specified ” means—

(a)specified, or described, in the notice; or

(b)falling within a category which is specified, or described, in the notice.

(5)The [^F102CMA^F102] may also specify in the notice—

(a)the time and place at which any document is to be produced or any information is to be provided;

(b)the manner and form in which it is to be produced or provided.

(6)The power under this section to require a person to produce a document includes power—

(a)if the document is produced—

(i)to take copies of it or extracts from it;

(ii)to require him, or any person who is a present or past officer of his, or is or was at any time employed by him, to provide an explanation of the document;

(b)if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.

[^F10326A Investigations: power to ask questions _cross-notes

(1)For the purposes of an investigation, the CMA may give notice to an individual ^F104... requiring the individual to answer questions with respect to any matter relevant to the investigation—

(a)at a place [^F105 or in a manner (which may be remote)^F105] specified in the notice, and

(b)either at a time so specified or on receipt of the notice.

(2)The CMA must give a copy of the notice under subsection (1) to [^F106 any^F106] relevant undertaking with which the individual has a current connection at the time the notice is given to the individual.

(3)The CMA must take such steps as are reasonable in all the circumstances to comply with the requirement under subsection (2) before the time at which the individual is required to answer questions.

(4)Where the CMA does not comply with the requirement under subsection (2) before the time mentioned in subsection (3), it must comply with that requirement as soon as practicable after that time.

(5)A notice under subsection (1) must be in writing and must ^F107...—

(a)[^F108 indicate^F108] the subject matter and purpose of the investigation, and

[^F109 (b)include information about the possible consequences of failing to comply with the notice.^F109]

[^F110 (6)For the purposes of this section, an individual has a current connection with an undertaking if, at the time in question, the individual is—

(a)concerned in the management or control of the undertaking, or

(b)employed by, or otherwise working for, the undertaking.^F110]

(7) In this section, a “ relevant undertaking ” means an undertaking whose activities are being investigated as part of the investigation in question. ^F103]

27 [^F111Power to enter business premises without a warrant^F111] _cross-notes

(1) Any officer of the [^F112 CMA ^F112] who is authorised in writing by the [^F112 CMA ^F112] to do so (“ an investigating officer ”) may enter [^F113 any business premises ^F113] in connection with an investigation[^F114 under section 25 ^F114] .

(2)No investigating officer is to enter any premises in the exercise of his powers under this section unless he has given to the occupier of the premises a written notice which—

(a)gives at least two working days’ notice of the intended entry;

(b)indicates the subject matter and purpose of the investigation; and

[^F115 (c)includes information about the possible consequences of failing to comply with the notice.^F115]

(3)Subsection (2) does not apply—

(a)if the [^F116CMA^F116] has a reasonable suspicion that the premises are, or have been, occupied by—

(i)a party to an agreement which [^F117it^F117] is investigating [^F118section 25^F118] ; or

(ii)an undertaking the conduct of which [^F117it^F117] is investigating under [^F119section 25^F119] ; or

(b)if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.

(4)In a case falling within subsection (3), the power of entry conferred by subsection (1) is to be exercised by the investigating officer on production of—

(a)evidence of his authorisation; and

(b)a document containing the information referred to in subsection (2)(b) and (c).

(5)An investigating officer entering any premises under this section may—

(a)take with him such equipment as appears to him to be necessary;

(b)require any person on the premises—

(i)to produce any document which he considers relates to any matter relevant to the investigation; and

(ii)if the document is produced, to provide an explanation of it;

(c)require any person to state, to the best of his knowledge and belief, where any such document is to be found;

(d)take copies of, or extracts from, any document which is produced;

(e)require any information which is [^F120stored in any electronic form^F120] and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—

(i)in which it can be taken away, and

(ii)in which it is visible and legible [^F121or from which it can readily be produced in a visible and legible form^F121] .

[^F122 (f)take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he considers relates to any matter relevant to the investigation.^F122]

[^F123 (6) In this section “business premises” means premises (or any part of premises) not used as a dwelling. ^F123]

28 [^F124Power to enter business premises under a warrant^F124] . _cross-notes

(1)[^F125 On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—^F125]

(a)there are reasonable grounds for suspecting that there are on [^F126or accessible from^F126][^F127 any business premises^F127] documents—

(i)the production of which has been required under section 26 or 27; and

(ii)which have not been produced as required;

(b)there are reasonable grounds for suspecting that—

(i)there are on [^F128or accessible from^F128][^F129 any business premises^F129] documents which the [^F130CMA^F130] has power under section 26 to require to be produced; and

(ii)if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or

(c)an investigating officer has attempted to enter premises in the exercise of his powers under section 27 but has been unable to do so and that there are reasonable grounds for suspecting that there are on [^F131or accessible from^F131] the premises documents the production of which could have been required under that section.

(2)A warrant under this section shall authorise a named officer of the [^F132CMA^F132] , and any other of [^F133the [^F134 “CMA's^F134] officers whom the [^F132 CMA^F132,F133]] has authorised in writing to accompany the named officer—

(a)to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;

(b) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“ the relevant kind ”);

(c)to take possession of any documents appearing to be of the relevant kind if—

(i)such action appears to be necessary for preserving the documents or preventing interference with them; or

(ii)it is not reasonably practicable to take copies of the documents on the premises;

(d)to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);

(e)to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;

(f)^F136to require any information which is [^F135stored in any electronic form^F135] and is accessible from the premises ... to be produced in a form—

(i)in which it can be taken away, and

(ii)in which it is visible and legible [^F137or from which it can readily be produced in a visible and legible form^F137] ;

[^F138 (g)to operate any equipment found on the premises for the purposes of producing such information in such a form;

(h)to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (f) and (g));

(i)to take copies of, or take possession of, anything produced in accordance with paragraph (f) or (g) which the named officer considers relates to any matter relevant to the investigation.^F138]

(3)If, in the case of a warrant under subsection (1)(b), [^F139the court or (as the case may be) the Tribunal^F139] is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.

[^F140 (3A)A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.^F140]

(4)Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(5)On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(6)A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(7)Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.

[^F141 (7A)An application for a warrant under this section must be made—

(a)in the case of an application to the court, in accordance with rules of court;

(b)in the case of an application to the Tribunal, in accordance with Tribunal rules.^F141]

[^F142 (8) In this section “business premises” has the same meaning as in section 27. ^F142]

[^F14328A Power to enter domestic premises under a warrant _cross-notes

(1)[^F144 On an application made to it by the CMA, the court or the Tribunal may issue a warrant if it is satisfied that—^F144]

(a)there are reasonable grounds for suspecting that there are on [^F145 or accessible from^F145] any domestic premises documents—

(i)the production of which has been required under section 26; and

(ii)which have not been produced as required; or

(b)there are reasonable grounds for suspecting that—

(i)there are on [^F146 or accessible from^F146] any domestic premises documents which the [^F147 CMA^F147] has power under section 26 to require to be produced; and

(ii)if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed.

(2)A warrant under this section shall authorise a named officer of the [^F147 CMA^F147] , and any other of its officers whom the [^F147 CMA^F147] has authorised in writing to accompany the named officer—

(a)to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;

(b) to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under subsection (1) was granted (“the relevant kind”);

(c)to take possession of any documents appearing to be of the relevant kind if—

(i)such action appears to be necessary for preserving the documents or preventing interference with them; or

(ii)it is not reasonably practicable to take copies of the documents on the premises;

(d)to take any other steps which appear to be necessary for the purpose mentioned in paragraph (c)(i);

(e)to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;

(f)to require any information which is stored in any electronic form and is accessible from the premises ^F148... to be produced in a form—

(i)in which it can be taken away, and

(ii)in which it is visible and legible or from which it can readily be produced in a visible and legible form;

[^F149 (g)to operate any equipment found on the premises for the purposes of producing such information in such a form;

(h)to require any person on the premises to give the named officer any assistance the named officer may reasonably require (including for the purposes of paragraphs (f) and (g));

(i)to take copies of, or take possession of, anything produced in accordance with paragraph (f) or (g) which the named officer considers relates to any matter relevant to the investigation.^F149]

(3)If, in the case of a warrant under subsection (1)(b), [^F150 the court or (as the case may be) the Tribunal^F150] is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in subsection (2) to be taken in relation to any such document.

(4)A warrant under this section may authorise persons specified in the warrant to accompany the named officer who is executing it.

(5)Any person entering premises by virtue of a warrant under this section may take with him such equipment as appears to him to be necessary.

(6)On leaving any premises which he has entered by virtue of a warrant under this section, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.

(7)A warrant under this section continues in force until the end of the period of one month beginning with the day on which it is issued.

(8)Any document of which possession is taken under subsection (2)(c) may be retained for a period of three months.

[^F151 (8A)An application for a warrant under this section must be made—

(a)in the case of an application to the court, in accordance with rules of court;

(b)in the case of an application to the Tribunal, in accordance with Tribunal rules.^F151]

(9) In this section, “domestic premises” means premises (or any part of premises) that are used as a dwelling and are—

(a)premises also used in connection with the affairs of an undertaking or association of undertakings; or

(b)premises where documents relating to the affairs of an undertaking or association of undertakings are kept.^F143]

29 Entry of premises under warrant: supplementary. _cross-notes

(1)^F153A warrant issued under section 28 [^F152or 28A^F152] must ...—

(a)[^F154 indicate^F154] the subject matter and purpose of the investigation;

[^F155 (b)include information about the possible consequences of failing to comply with the notice.^F155]

(2)The powers conferred by section 28 [^F156or 28A^F156] are to be exercised on production of a warrant issued under that section.

(3)If there is no one at the premises when the named officer proposes to execute such a warrant he must, before executing it—

(a)take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and

(b)if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.

(4)If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

(5)In this section—

• “ named officer ” means the officer named in the warrant; and

• “ occupier ”, in relation to any premises, means a person whom the named officer reasonably believes is the occupier of those premises.

30 Privileged communications. _cross-notes

(1)A person shall not be required, under any provision of this Part, to produce or disclose a privileged communication.

[^F157 (1A)Nothing in section 28 or 28A authorises an officer to produce or take possession of, or make copies of or take extracts from, anything which, by virtue of subsection (1), a person could not be required to produce or disclose under this Part.^F157]

(2) “ Privileged communication ” means a communication—

(a)between a professional legal adviser and his client, or

(b)made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,

which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.

(3)In the application of this section to Scotland—

(a)references to the High Court are to be read as references to the Court of Session; and

(b)the reference to legal professional privilege is to be read as a reference to confidentiality of communications.

[^F15830A Use of statements in prosecution

[^F159 (1)^F159] A statement made by a person in response to a requirement imposed by virtue of any of [^F160 sections 26, 27 to 28A and 40ZD^F160] may not be used in evidence against him on a prosecution for an offence under section 188 of the Enterprise Act 2002 unless, in the proceedings—

(a)in giving evidence, he makes a statement inconsistent with it, and

(b)evidence relating to it is adduced, or a question relating to it is asked, by him or on his behalf.^F158]

[^F161 (2) A statement by an individual in response to a requirement imposed by virtue of section 26A (a “section 26A statement”) may only be used in evidence against the individual—

(a)on a prosecution for an offence under section 44, or

(b)on a prosecution for some other offence in a case falling within subsection (3).

(3)A prosecution falls within this subsection if, in the proceedings—

(a)in giving evidence, the individual makes a statement inconsistent with the section 26A statement, and

(b)evidence relating to the section 26A statement is adduced, or a question relating to it is asked, by or on behalf of the individual.

(4)A section 26A statement may not be used in evidence against an undertaking with which the individual who gave the statement has a connection on a prosecution for an offence unless the prosecution is for an offence under section 44.

(5)For the purposes of subsection (4), an individual has a connection with an undertaking if he or she is or was—

(a)concerned in the management or control of the undertaking, or

(b)employed by, or otherwise working for, the undertaking.^F161]

[^F16231 Decisions following an investigation.

(1)If as a result of an investigation the [^F163 CMA^F163] proposes to make a decision, the [^F163 CMA^F163] must—

(a)give written notice to the person (or persons) likely to be affected by the proposed decision; and

(b)give that person (or those persons) an opportunity to make representations.^F162]

[^F162 (2) For the purposes of this section and sections 31A and 31B “decision” means a decision of the [^F163 CMA ^F163] —

(a)that the Chapter I prohibition has been infringed; [^F164 or^F164]

(b)that the _dfnChapter II prohibition has been infringed;

^F165(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F166(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F162]

[^F16731A Commitments

(1)Subsection (2) applies in a case where the [^F168 CMA^F168] has begun an investigation under section 25 but has not made a decision (within the meaning given by section 31(2)).

(2)For the purposes of addressing the competition concerns it has identified, the [^F168 CMA^F168] may accept from such person (or persons) concerned as it considers appropriate commitments to take such action (or refrain from taking such action) as it considers appropriate.

[^F169 (2A)But the CMA may not accept commitments from a person unless it has provided the person with information about the possible consequences of failing to adhere to the commitments.^F169]

(3)At any time when commitments are in force the [^F168 CMA^F168] may accept from the person (or persons) who gave the commitments—

(a)a variation of them if it is satisfied that the commitments as varied will address its current competition concerns;

(b)commitments in substitution for them if it is satisfied that the new commitments will address its current competition concerns.

(4)Commitments under this section—

(a)shall come into force when accepted; and

(b)may be released by the [^F168 CMA^F168] where—

(i)it is requested to do so by the person (or persons) who gave the commitments; or

(ii)it has reasonable grounds for believing that the competition concerns referred to in subsection (2) or (3) no longer arise.

(5)The provisions of Schedule 6A to this Act shall have effect with respect to procedural requirements for the acceptance, variation and release of commitments under this section.^F167]

[^F16731B Effect of commitments under section 31A

(1)Subsection (2) applies if the [^F170 CMA^F170] has accepted commitments under section 31A (and has not released them).

(2)In such a case, the [^F170 CMA^F170] shall not—

(a)continue the investigation,

(b)make a decision (within the meaning of section 31(2)), or

(c)give a direction under section 35,

in relation to the agreement or conduct which was the subject of the investigation (but this subsection is subject to subsections (3) and (4)).

(3)Nothing in subsection (2) prevents the [^F170 CMA^F170] from taking any action in relation to competition concerns which are not addressed by commitments accepted by it.

(4)Subsection (2) also does not prevent the [^F170 CMA^F170] from continuing the investigation, making a decision, or giving a direction where—

(a)it has reasonable grounds for believing that there has been a material change of circumstances since the commitments were accepted;

(b)it has reasonable grounds for suspecting that a person has failed to adhere to one or more of the terms of the commitments; or

(c)it has reasonable grounds for suspecting that information which led it to accept the commitments was incomplete, false or misleading in a material particular.

(5)If, pursuant to subsection (4), the [^F170 CMA^F170] makes a decision or gives a direction the commitments are to be treated as released from the date of that decision or direction.^F167]

[^F16731C Review of commitments

(1)Where the [^F171 CMA^F171] is reviewing or has reviewed the effectiveness of commitments accepted under section 31A it must, if requested to do so by the Secretary of State, prepare a report of its findings.

(2)The [^F171 CMA^F171] must—

(a)give any report prepared by it under subsection (1) to the Secretary of State; and

(b)publish the report.^F167]

[^F16731D Guidance

(1)The [^F172 CMA^F172] must prepare and publish guidance as to the circumstances in which it may be appropriate to accept commitments under section 31A.

(2)The [^F172 CMA^F172] may at any time alter the guidance.

(3)If the guidance is altered, the [^F172 CMA^F172] must publish it as altered.

(4)No guidance is to be published under this section without the approval of the Secretary of State.

(5)The [^F173 CMA^F173] may, after consulting the Secretary of State, choose how it publishes its guidance.

(6)If the [^F173 CMA^F173] is preparing or altering guidance under this section it must consult such persons as it considers appropriate.

(7)If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(8)When exercising its discretion to accept commitments under section 31A, the [^F174 CMA^F174] must have regard to the guidance for the time being in force under this section.^F167]

[^F16731E Enforcement of commitments

(1)If a person from whom the [^F175 CMA^F175] has accepted commitments fails without reasonable excuse to adhere to the commitments (and has not been released from them), the [^F175 CMA^F175] may apply to the court for an order—

(a)requiring the defaulter to make good his default within a time specified in the order; or

(b)if the commitments relate to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(2)An order of the court under subsection (1) may provide for all the costs of, or incidental to, the application for the order to be borne by—

(a)the person in default; or

(b)any officer of an undertaking who is responsible for the default.

(3) In the application of subsection (2) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

[^F176 (4)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 35C at the time of the failure to adhere to the commitments.^F176,F167]]

[^F17731F Power for Secretary of State to impose time-limits on investigations etc.

(1)The Secretary of State may by order impose time-limits in relation to—

(a)the conduct by the CMA of investigations or investigations of a description specified in the order;

(b)the making by the CMA of decisions (within the meaning given by section 31(2)) as a result of investigations or investigations of such a description.

(2)Before making an order under subsection (1), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.^F177]

Enforcement [^F178: directions and interim measures^F178]

32 Directions in relation to agreements. _cross-notes

(1)^F180If the [^F179CMA^F179] has made a decision that an agreement infringes the Chapter I prohibition ... , [^F181it^F181] may give to such person or persons as [^F181it^F181] considers appropriate such directions as [^F181it^F181] considers appropriate to bring the infringement to an end.

(2)[^F182 Subsection (1) applies whether the [^F183 OFT’s^F183] decision is made on [^F183 its^F183] own initiative or on an application made to [^F183 it^F183] under this Part.^F182]

(3)A direction under this section may, in particular, include provision—

(a)requiring the parties to the agreement to modify the agreement; or

(b)requiring them to terminate the agreement.

(4)A direction under this section must be given in writing.

33 Directions in relation to conduct.

(1)^F185If the [^F184CMA^F184] has made a decision that conduct infringes the Chapter II prohibition ... , [^F186it^F186] may give to such person or persons as [^F186it^F186] considers appropriate such directions as [^F186it^F186] considers appropriate to bring the infringement to an end.

(2)[^F187 Subsection (1) applies whether the [^F188 OFT’s^F188] decision is made on [^F188 its^F188] own initiative or on an application made to [^F188 it^F188] under this Part.^F187]

(3)A direction under this section may, in particular, include provision—

(a)requiring the person concerned to modify the conduct in question; or

(b)requiring him to cease that conduct.

(4)A direction under this section must be given in writing.

34 Enforcement of directions.

(1)If a person fails, without reasonable excuse, to comply with a direction under section 32 or 33, the [^F189CMA^F189] may apply to the court for an order—

(a)requiring the defaulter to make good his default within a time specified in the order; or

(b)if the direction related to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(2)An order of the court under subsection (1) may provide for all of the costs of, or incidental to, the application for the order to be borne by—

(a)the person in default; or

(b)any officer of an undertaking who is responsible for the default.

(3) In the application of subsection (2) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

[^F190 (4)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 35C at the time of the failure to comply with the direction.^F190]

35 Interim measures. _cross-notes

[^F191 (1)Subject to [^F192 subsection (8)^F192] , this section applies if the [^F193 CMA^F193] has begun an investigation under section 25 and not completed it (but only applies so long as the [^F193 CMA^F193] has power under section 25 to conduct that investigation).^F191]

(2)If the [^F193CMA^F193] considers that it is necessary for [^F194it^F194] to act under this section as a matter of urgency for the purpose—

(a)of preventing [^F195significant damage^F195] to a particular person or category of person, or

(b)of protecting the public interest,

[^F194 it^F194] may give such directions as [^F194it^F194] considers appropriate for that purpose.

(3)Before giving a direction under this section, the [^F193CMA^F193] must—

(a)give written notice to the person (or persons) to whom [^F194it^F194] proposes to give the direction; and

(b)give that person (or each of them) an opportunity to make representations.

(4)A notice under subsection (3) must indicate the nature of the direction which the [^F193CMA^F193] is proposing to give and [^F194its^F194] reasons for wishing to give it.

[^F196 (5)A direction given under this section may if the circumstances permit be replaced by—

(a)a direction under section 32 or (as appropriate) section 33, or

(b)commitments accepted under section 31A,

but, subject to that, has effect while this section applies.^F196]

(6)In the [^F197cases mentioned in [^F198 section 25(2) and (6)^F198,F197]] , sections 32(3) and 34 also apply to directions given under this section.

(7)In the [^F199cases mentioned in [^F200 section 25(4)^F200,F199]] , sections 33(3) and 34 also apply to directions given under this section.

[^F201 (8) In the case of an investigation conducted by virtue of section 25(2) or (6), this section does not apply if a person has produced evidence to the [^F202 CMA ^F202] in connection with the investigation that satisfies it on the balance of probabilities that, in the event of it reaching the basic infringement conclusion, it would also reach the conclusion that the suspected agreement is exempt from the Chapter I prohibition as a result of section 9(1); and in this subsection “the basic infringement conclusion” is the conclusion that there is an agreement which—

(a)may affect trade within the United Kingdom, and

(b)has as its object or effect the prevention, restriction or distortion of competition within the United Kingdom.

^F203(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F201]

[^F204Civil sanctions: breaches of commitments, directions and interim measures

35A Enforcement of powers under sections 31A, 32, 33 and 35: imposition of penalties

(1)The CMA may, in accordance with section 35B, impose a penalty on a person—

(a)from whom the CMA has accepted commitments under section 31A (and who has not been released from those commitments), or

(b)to whom the CMA has given a direction under section 32, 33 or 35,

where the CMA considers that the person has, without reasonable excuse, failed to adhere to the commitments or comply with the direction.

(2)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 35C at the time of the failure to adhere or comply.

35B Penalties under section 35A: amount

(1)A penalty under section 35A(1) is to be such amount as the CMA 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 35A(1) on a person who is not an undertaking 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 35A(1) on a person who is an undertaking must not—

(a)in the case of a fixed amount, exceed 5% of the total value of the turnover of the undertaking;

(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 of the undertaking;

(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) of the Enterprise Act 2002 (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 adheres to the commitments or complies with the direction (as the case may be) referred to in section 35A(1).

(6)Sections 112 to 115 of the Enterprise Act 2002 apply in relation to a penalty imposed under section 35A(1) as they apply in relation to a penalty imposed under section 110(1) or (1A) of that Act, with the following modifications—

(a)any reference in those provisions to the appropriate authority is to be read as a reference to the CMA only;

(b) section 114(5A) is to be read as if the words “In the case of a penalty imposed on a person by the CMA or OFCOM,” were omitted;

(c)section 114(12) 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 35C 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 the turnover and daily turnover of an undertaking for the purposes of subsection (4).

(10)Regulations under subsection (9) may, in particular, make provision as to—

(a)the amounts which are, or which are not, to be treated as comprising an undertaking’s turnover or daily turnover;

(b)the date, or dates, by reference to which an undertaking’s turnover, or daily turnover, is to be determined.

(11)Regulations under subsection (9) may, in particular, make provision enabling the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).

Statement of policy in relation to functions under sections 31E, 34 and 35A

35C Statement of policy in relation to functions under sections 31E, 34 and 35A

(1)The CMA must prepare and publish a statement of policy in relation to the exercise of functions under sections 31E, 34 and 35A.

(2)The statement must, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 35A(1).

(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)If the proposed statement of policy or revision relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(6)A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.

Civil sanctions: infringements of the Chapter I or II prohibitions^F204]

36 [^F205Penalties^F205] .

(1)^F206On making a decision that an agreement has infringed the Chapter I prohibition ..., the [^F207CMA^F207] may require an undertaking which is a party to the agreement to pay the [^F207CMA^F207] a penalty in respect of the infringement.

(2)^F208On making a decision that conduct has infringed the Chapter II prohibition ..., the [^F207CMA^F207] may require the undertaking concerned to pay the [^F207CMA^F207] a penalty in respect of the infringement.

(3)The [^F207CMA^F207] may impose a penalty on an undertaking under subsection (1) or (2) only if [^F209the [^F207 CMA^F207,F209]] is satisfied that the infringement has been committed intentionally or negligently by the undertaking.

(4)Subsection (1) is subject to section 39 and does not apply [^F210in relation to a decision that an agreement has infringed the Chapter I prohibition^F210] if the [^F207CMA^F207] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the agreement.

(5)Subsection (2) is subject to section 40 and does not apply [^F211in relation to a decision that conduct has infringed the Chapter II prohibition^F211] if the [^F207CMA^F207] is satisfied that the undertaking acted on the reasonable assumption that that section gave it immunity in respect of the conduct.

(6)Notice of a penalty under this section must—

(a)be in writing; and

(b)specify the date before which the penalty is required to be paid.

(7)The date specified must not be earlier than the end of the period within which an appeal against the notice may be brought under section 46.

[^F212 (7A)In fixing a penalty under this section the CMA must have regard to—

(a)the seriousness of the infringement concerned, and

(b)the desirability of deterring both the undertaking on whom the penalty is imposed and others from—

(i)entering into agreements which infringe the Chapter 1 prohibition ^F213..., or

(ii)engaging in conduct which infringes the Chapter 2 prohibition ^F214....^F212]

(8)No penalty fixed by the [^F215CMA^F215] under this section may exceed 10% of the turnover of the undertaking (determined in accordance with such provisions as may be specified in an order made by the Secretary of State).

(9)Any sums received by the [^F215CMA^F215] under this section are to be paid into the Consolidated Fund.

37 Recovery of penalties.

(1)If the specified date in a penalty notice has passed and—

(a)the period during which an appeal against the imposition, or amount, of the penalty may be made has expired without an appeal having been made, or

(b)such an appeal has been made and determined,

the [^F216CMA^F216] may recover from the undertaking, as a civil debt due to the [^F216CMA^F216] , any amount payable under the penalty notice which remains outstanding.

(2)In this section—

• “ penalty notice ” means a notice given under section 36; and

• “ specified date ” means the date specified in the penalty notice.

38 The appropriate level of a penalty. _I5

(1)The [^F217CMA^F217] must prepare and publish guidance as to the appropriate amount of any penalty under this Part [^F218 in respect of an infringement of [^F219 the Chapter 1 prohibition or the Chapter 2 prohibition.^F219,F218]]

^F220[^F221 (1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F221]

(2)The [^F217CMA^F217] may at any time alter the guidance.

(3)If the guidance is altered, the [^F217CMA^F217] must publish it as altered.

(4)No guidance is to be published under this section without the approval of the Secretary of State.

(5)The [^F222CMA^F222] may, after consulting the Secretary of State, choose how [^F223it^F223] publishes [^F223its^F223] guidance.

(6)If the [^F222CMA^F222] is preparing or altering guidance under this section [^F223it^F223] must consult such persons as [^F223it^F223] considers appropriate.

(7)If the proposed guidance or alteration relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

(8)When setting the amount of a penalty under this Part [^F224 in respect of an infringement of a kind mentioned in subsection (1)^F224] , the [^F225CMA^F225][^F226 and the Tribunal ^F226] must have regard to the guidance for the time being in force under this section.

^F227(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F228(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 [^F229Limited immunity in relation to the Chapter I prohibition^F229] .

(1) In this section “ small agreement ” means an agreement—

(a)which falls within a category prescribed for the purposes of this section; but

(b)is not a price fixing agreement.

(2)The criteria by reference to which a category of agreement is prescribed may, in particular, include—

(a)the combined turnover of the parties to the agreement (determined in accordance with prescribed provisions);

(b)the share of the market affected by the agreement (determined in that way).

(3)A party to a small agreement is immune from the effect of section 36(1) [^F230so far as that provision relates to decisions about infringement of the Chapter I prohibition^F230] ; but the [^F231CMA^F231] may withdraw that immunity under subsection (4).

(4)If the [^F231CMA^F231] has investigated a small agreement, [^F232it^F232] may make a decision withdrawing the immunity given by subsection (3) if, as a result of [^F232its^F232] investigation, [^F232it^F232] considers that the agreement is likely to infringe the Chapter I prohibition.

(5)The [^F231CMA^F231] must give each of the parties in respect of which immunity is withdrawn written notice of [^F232its^F232] decision to withdraw the immunity.

(6) A decision under subsection (4) takes effect on such date (“ the withdrawal date ”) as may be specified in the decision.

(7)The withdrawal date must be a date after the date on which the decision is made.

(8)In determining the withdrawal date, the [^F233CMA^F233] must have regard to the amount of time which the parties are likely to require in order to secure that there is no further infringement of the Chapter I prohibition with respect to the agreement.

(9) In subsection (1) “ price fixing agreement ” means an agreement which has as its object or effect, or one of its objects or effects, restricting the freedom of a party to the agreement to determine the price to be charged (otherwise than as between that party and another party to the agreement) for the product, service or other matter to which the agreement relates.

40 Limited immunity in relation to the Chapter II prohibition.

(1) In this section “ conduct of minor significance ” means conduct which falls within a category prescribed for the purposes of this section.

(2)The criteria by reference to which a category is prescribed may, in particular, include—

(a)the turnover of the person whose conduct it is (determined in accordance with prescribed provisions);

(b)the share of the market affected by the conduct (determined in that way).

(3)A person is immune from the effect of section 36(2) [^F234, so far as that provision relates to decisions about infringement of the Chapter II prohibition,^F234] if [^F235its^F235] conduct is conduct of minor significance; but the [^F236CMA^F236] may withdraw that immunity under subsection (4).

(4)If the [^F236CMA^F236] has investigated conduct of minor significance, [^F237it^F237] may make a decision withdrawing the immunity given by subsection (3) if, as a result of [^F237its^F237] investigation, [^F237it^F237] considers that the conduct is likely to infringe the Chapter II prohibition.

(5)The [^F236CMA^F236] must give the person, or persons, whose immunity has been withdrawn written notice of [^F235its^F235] decision to withdraw the immunity.

(6) A decision under subsection (4) takes effect on such date (“ the withdrawal date ”) as may be specified in the decision.

(7)The withdrawal date must be a date after the date on which the decision is made.

(8)In determining the withdrawal date, the [^F238CMA^F238] must have regard to the amount of time which the person or persons affected are likely to require in order to secure that there is no further infringement of the Chapter II prohibition.

[^F239Transferred EU anti-trust commitments and transferred EU anti-trust directions

40ZA Interpretation

(1) In this section and in sections 40ZB and 40ZD “transferred EU anti-trust commitments” means EU anti-trust commitments—

(a)which are the subject of an Article 95(2) commitments transfer decision (and, where those commitments are modified by, or as contemplated by, that decision, or by a later Article 95(2) commitments transfer decision, means those commitments as so modified), and

(b)which have not been wholly waived or substituted by the European Commission.

(2)In this section—

• “Article 95(2) commitments 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 anti-trust commitments to the CMA;

• “EU anti-trust commitments” means commitments contained, pursuant to Article 9(1) of Regulation 1/2003, in a decision adopted by the European Commission under that Regulation.

(3) In this section and in sections 40ZC and 40ZD a “transferred EU anti-trust direction” means an EU anti-trust direction—

(a)which is the subject of an Article 95(2) direction transfer decision (and, where that direction is modified by, or as contemplated by, that decision, or by a later Article 95(2) direction transfer decision, means that direction as so modified), and

(b)which has not been wholly revoked by the European Commission.

(4)In this section—

• “Article 95(2) direction 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 an EU anti-trust direction to the CMA;

• “EU anti-trust direction” means a direction given pursuant to Article 7(1) of Regulation 1/2003 in a decision adopted by the European Commission under that Regulation;

• “Regulation 1/2003” means Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

(5)So far as the context permits or requires, transferred EU anti-trust commitments and transferred EU anti-trust directions are to be treated for the purposes of this section and sections 40ZB to 40ZD 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.

(6)Subsection (5) is subject to any different provision made by the Article 95(2) commitments transfer decision or Article 95(2) direction transfer decision in question.

40ZB Transferred EU anti-trust commitments

(1)The CMA has the function of monitoring compliance with transferred EU anti-trust commitments.

(2)If a person who is bound by transferred EU anti-trust commitments fails, without reasonable excuse, to adhere to those commitments, the CMA may apply to the court for an order—

(a)requiring the defaulter to make good the default within a time specified in the order; or

(b)if any of the transferred EU anti-trust commitments relate to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(3)An order of the court under subsection (2) may provide for all of the costs of, or incidental to, the application for the order to be borne by—

(a)the person in default; or

(b)any officer of an undertaking who is responsible for the default.

(4) In the application of subsection (3) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

(5) In this section, “transferred EU anti-trust commitments” has the meaning given by section 40ZA(1).

40ZC Transferred EU anti-trust directions

(1)The CMA has the function of monitoring compliance with transferred EU anti-trust directions.

(2)If a person fails, without reasonable excuse, to comply with a transferred EU anti-trust direction, the CMA may apply to the court for an order—

(a)requiring the defaulter to make good the default within a time specified in the order; or

(b)if the transferred EU anti-trust direction related to anything to be done in the management or administration of an undertaking, requiring the undertaking or any of its officers to do it.

(3)An order of the court under subsection (2) may provide for all of the costs of, or incidental to, the application for the order to be borne by—

(a)the person in default; or

(b)any officer of an undertaking who is responsible for the default.

(4) In the application of subsection (3) to Scotland, the reference to “costs” is to be read as a reference to “expenses”.

(5) In this section, “transferred EU anti-trust direction” has the meaning given by section 40ZA(3).

40ZD Information relating to transferred EU anti-trust commitments and transferred EU anti-trust directions

(1)The CMA may require any person to produce to the CMA a specified document, or to provide the CMA with specified information, for the purposes of assisting the CMA—

(a)to monitor compliance with transferred EU anti-trust commitments, or

(b)to decide whether to make an application under section 40ZB(2) in respect of those transferred EU anti-trust commitments.

(2)The CMA may require any person to produce to the CMA a specified document, or to provide the CMA with specified information, for the purposes of assisting the CMA—

(a)to monitor compliance with a transferred EU anti-trust direction, or

(b)to decide whether to make an application under section 40ZC(2) in respect of a transferred EU anti-trust direction.

(3)The powers conferred by subsections (1) and (2) are to be exercised by a notice in writing which

[^F240 (a)^F240] indicates the subject matter and purpose of the demand (including identifying the transferred EU anti-trust commitments or transferred EU anti-trust direction in question) [^F241 , and

(b)includes information about the possible consequences of failing to comply with the notice.^F241]

(4)The CMA may also specify in the notice—

(a)the time and place at which any document is to be produced or any information is to be provided;

(b)the manner and form in which it is to be produced or provided.

(5)The power under this section to require a person to produce a document includes power—

(a)if the document is produced—

(i)to take copies of it or extracts from it;

(ii)to require that person, or any person who is a present or past officer of, or is or was at any time employed by, that person, to provide an explanation of the document;

(b)if the document is not produced, to require that person to state, to the best of their knowledge and belief, where it is.

(6)In this section—

• “specified” means—

  (a)

  specified, or described, in the notice under subsection (3), or

  (b)

  falling within a category which is specified, or described, in that notice;

• “transferred EU anti-trust commitments” has the meaning given by section 40ZA(1);

• “transferred EU anti-trust direction” has the meaning given by section 40ZA(3). ^F239]

[[^F242,F243Civil sanctions: failure to comply with investigative requirements^F243]

[^F24440ZE Enforcement of requirements: imposition of penalties

(1)The CMA may impose a penalty on a person in accordance with section 40A where the CMA considers that—

(a)the person has, without reasonable excuse, failed to comply with a requirement imposed on the person [^F245 by section 25B or^F245] under section 26, 26A, 27, 28, 28A or 40ZD;

(b)the person has, without reasonable excuse, obstructed an officer acting in the exercise of the officer’s powers under section 27 or under a warrant issued under section 28 or 28A;

(c)the person, having been required to produce a document under section 26, 27, 28 or 28A, has, without reasonable excuse—

(i)destroyed or otherwise disposed of, falsified or concealed the document, or

(ii)caused or permitted the document’s destruction, disposal, falsification or concealment;

(d)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to the CMA in connection with any function of the CMA under this Part;

(e)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to another person knowing that the information was to be used for the purpose of providing information to the CMA in connection with any function of the CMA under this Part.

(2)But the CMA may not proceed against a person under this section in relation to an act or omission which constitutes an offence under any of sections 42 to 44 if the person has, by reason of that act or omission, been found guilty of that offence.

(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 40B at the time when the act or omission concerned occurred.

(4)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;

(b)the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(5)Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) or (1A) of that Act, with the following modifications—

(a)any reference in those provisions to the appropriate authority is to be read as a reference to the CMA only;

(b) section 114(5A) is to be read as if the words “In the case of a penalty imposed on a person by the CMA or OFCOM,” were omitted;

(c)section 114(12) 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 40B of the 1998 Act at the time when the act or omission concerned occurred.”^F244]

40A Penalties: [^F246amount^F246]

[^F247 (1A)A penalty imposed under section 40ZE(1) is to be of such amount as the CMA considers appropriate.^F247]

(2)[^F248 A penalty imposed under section 40ZE(1)(a) may be—^F248]

(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.

[^F249 (2A)A penalty imposed under any of section 40ZE(1)(b) to (e) must be a fixed amount.^F249]

(3)[^F250 A penalty imposed under section 40ZE(1) on a person who is not an undertaking must not—^F250]

(a)in the case of a fixed amount, exceed [^F251 £30,000^F251] ;

(b)in the case of an amount calculated by reference to a daily rate, exceed [^F252 £15,000 per day^F252] ;

(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 ^F253....

[^F254 (3A)A penalty imposed under section 40ZE(1) on a person who is an undertaking must not—

(a)in the case of a fixed amount, exceed 1% of the turnover of the undertaking;

(b)in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the daily turnover of the undertaking;

(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.^F254]

^F255(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F255(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In imposing a penalty by reference to a daily rate—

(a)no account is to be taken of any days before the service of the [^F256 provisional penalty notice under section 112(A1)^F256] of the Enterprise Act 2002 (as applied by [^F257 section 40ZE(5)^F257] ) on the person concerned, 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 (7).

(7)The days are—

(a)the day on which the requirement concerned is satisfied;

(b)the day on which the CMA makes a decision (within the meaning given by section 31(2)) or terminates the investigation in question without making such a decision;

(c)if the Secretary of State has made an order under section 31F(1)(b) imposing a time-limit on the making of such a decision, the latest day on which such a decision may be made as a result of the investigation in question;

[^F258 (d)in a case where the requirement was imposed in connection with the provision by the CMA of assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the day on which the overseas regulator no longer requires that assistance.^F258]

[^F259 (7A)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.^F259]

(8)Before making [^F260 regulations under subsection (7A)^F260] , the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.

^F261(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F262 (10)The Secretary of State may by regulations make provision for determining the turnover and daily turnover of an undertaking for the purposes of this section.

(11)Regulations under subsection (10) may, in particular, make provision as to—

(a)the amounts which are, or which are not, to be treated as an undertaking’s turnover or daily turnover;

(b)the date, or dates, by reference to which an undertaking’s turnover, or daily turnover, is to be determined.

(12)Regulations under subsection (10) may, in particular, make provision enabling the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (11)).^F262]

40B Statement of policy on penalties

(1)The CMA must prepare and publish a statement of policy in relation to the [^F263 exercise of functions^F263] under section [^F264 40ZE^F264] .

(2)The CMA must, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section [^F265 40ZE^F265] .

(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 [^F266 the Secretary of State and such other persons^F266] as it considers appropriate when preparing or revising its statement of policy.

(5)If the proposed statement of policy or revision relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator.

[^F267 (5A)A statement or revised statement of policy may not be published under this section without the approval of the Secretary of State.^F267]

^F268(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F242]

41 Agreements notified to the Commission.

[^F269 (1)This section applies if a party to an agreement which may infringe the Chapter I prohibition has notified the agreement to the Commission for a decision as to whether an exemption will be granted under Article 85 with respect to the agreement.

(2)A penalty may not be required to be paid under this Part in respect of any infringement of the Chapter I prohibition after notification but before the Commission determines the matter.

(3)If the Commission withdraws the benefit of provisional immunity from penalties with respect to the agreement, subsection (2) ceases to apply as from the date on which that benefit is withdrawn.

(4)The fact that an agreement has been notified to the Commission does not prevent the [^F270 OFT^F270] from investigating it under this Part.

(5) In this section “ provisional immunity from penalties ” has such meaning as may be prescribed. ^F269]

Offences

42 [^F271Obstruction^F271] .

^F272(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F272(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F272(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F272(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)A person is guilty of an offence if he intentionally obstructs an officer acting in the exercise of his powers under section 27.

(6)^F273A person guilty of an offence under subsection ... (5) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(7)A person who intentionally obstructs an officer in the exercise of his powers under a warrant issued under [^F274section 28 or 28A^F274] is guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

[^F275 (8)A person is not guilty of an offence under subsection (5) or (7) by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).^F275]

43 Destroying or falsifying documents.

(1)A person is guilty of an offence if, having been required to produce a document under section 26, 27 [^F276, 28 or 28A^F276] —

(a)he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or

(b)he causes or permits its destruction, disposal, falsification or concealment.

[^F277 (1A)A person is not guilty of an offence under subsection (1) by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).^F277]

(2)A person guilty of an offence under subsection (1) is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

44 False or misleading information. _cross-notes

(1)If information is provided by a person to the [^F278CMA^F278] in connection with any function of the [^F278CMA^F278] under this Part, that person is guilty of an offence if—

(a)the information is false or misleading in a material particular, and

(b)he knows that it is or is reckless as to whether it is.

(2)A person who—

(a)provides any information to another person, knowing the information to be false or misleading in a material particular, or

(b)recklessly provides any information to another person which is false or misleading in a material particular,

knowing that the information is to be used for the purpose of providing information to the [^F278CMA^F278] in connection with any of [^F279its^F279] functions under this Part, is guilty of an offence.

[^F280 (2A)A person is not guilty of an offence under this section by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).^F280]

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

[^F281Supplementary

44A Giving of notices under Chapter 3

Section 126 of the Enterprise Act 2002 (service of documents) applies to the giving of notices under this Chapter as it applies to the service of documents under Part 3 of that Act.^F281]

[^F28244B Extra-territorial application of notices under sections 26 and 40ZD

(1)This section applies to the exercise of the CMA’s power to give a person a notice under section 26 or 40ZD.

(2)The power is exercisable so as to—

(a)give the notice to a person who is outside the United Kingdom (subject to subsections (3) and (4));

(b)require the production of a specified document, or the provision of specified information, held outside the United Kingdom.

(3)The CMA’s power to give a notice under section 26 to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only if—

(a)the person’s activities are being investigated as part of an investigation under section 25, or

(b)the person has a UK connection.

(4)The CMA’s power to give a notice under section 40ZD to a person outside the United Kingdom by virtue of subsection (2)(a) is exercisable only if—

(a)the person is bound by transferred EU anti-trust commitments (within the meaning of section 40ZA), or

(b)the person is subject to a transferred EU anti-trust direction (within the meaning of that section).

(5)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.

(6) In subsection (5)(a) “ United Kingdom national ” means—

(a)a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;

(b)a person who is a British subject under the British Nationality Act 1981;

(c)a British protected person within the meaning of that Act.

(7)Nothing in this section is to be taken to limit any other power of the CMA to give a notice under section 26 or 40ZD to a person outside the United Kingdom.^F282]

Chapter IV [^F283Appeals before the Tribunal and proceedings and settlements relating to infringements of competition law^F283]

^F284...

^F28545 The Competition Commission. _cross-notes

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F286Appeals before the Tribunal^F286]

46 Appealable decisions. _cross-notes

(1)Any party to an agreement in respect of which the [^F287CMA^F287] has made a decision may appeal to [^F288the Tribunal^F288] against, or with respect to, the decision.

(2)Any person in respect of whose conduct the [^F287CMA^F287] has made a decision may appeal to [^F288the Tribunal^F288] against, or with respect to, the decision.

[^F289 (3) In this section “decision” means a decision of the [^F287 CMA ^F287] —

(a)as to whether the Chapter I prohibition has been infringed,

^F290(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)as to whether the Chapter II prohibition has been infringed,

^F291(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)cancelling a block or [[^F292,F293 assimilated^F293] exemption^F292] ,

^F294(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .