Digital Markets, Competition and Consumers Act 2024

• (5) In subsection (3), in the words before paragraph (a), for “154” substitute “154A”.

• (6) After subsection (3) insert—

(4) Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate. (5) Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report. (6) Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing— (a) the CMA’s decision to accept the undertaking, (b) the reasons for the decision, and (c) such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision. (7) For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).

11

After section 156 insert—

.

12

After section 158 insert—

.

13

• (1) Section 162 (duty of CMA to monitor the carrying out of undertakings and orders: Part 4) is amended as follows.

• (2) In subsection (4), in paragraphs (a) and (b), for “154” substitute “154A”.

• (3) In subsection (8), in the definition of “enforcement undertaking”, for “154” substitute “154A”.

14

In section 169(6) (certain duties of relevant authorities to consult: Part 4), in paragraph (a)(ia) of the definition of “relevant decision”, for “under section 154” to the end substitute “in lieu of a reference under section 154A”.

15

• (1) Section 174C (section 174B: supplementary provision) is amended as follows.

• (2) In subsection (3), in paragraph (b), for “under section 154 instead of making such a reference” substitute “fully in lieu of a reference under section 154A”.

• (3) In subsection (5), for “154” substitute “154A”.

16

In section 183 (interpretation: Part 4), in subsection (3), in paragraph (a)—

• (a) omit the “or” at the end of sub-paragraph (iii);

• (b) after that sub-paragraph insert—

(iiia) the CMA has accepted an undertaking fully in lieu of a report under section 154A; or

.

17

In Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (the CMA), in Part 2 (the CMA Board), in paragraph 29 (delegation), in sub-paragraph (2)(e), for “under section 154” substitute “in lieu of a reference under section 154A”.

Schedule 9

1

Part 4 of EA 2002 (market studies and market investigations) is amended as follows.

2

• (1) Section 133A (functions to be exercised by CMA groups) is amended as follows.

• (2) In subsection (1)—

• (a) in paragraph (a), for “138B” substitute “137”;

• (b) after that paragraph insert—

(aa) sections 138 to 138B so far as relating to an adverse effect on competition in respect of which the CMA is required to take action in accordance with section 138(2) within the period permitted by section 138A(1);

;

• (c) after paragraph (f) insert—

(fa) section 161C;

.

• (3) In subsection (2), after paragraph (c) insert—

(ca) section 162B;

.

3

• (1) Section 138A (time-limits for discharging duty under section 138) is amended as follows.

• (2) Before subsection (1) insert—

(A1) Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA— (a) has begun an implementation trial under section 161C, or (b) considers that it is not reasonably practicable to discharge its duty under section 138(2) in accordance with subsection (1) as a result of such an implementation trial in respect of another adverse effect on competition. (A2) Subsection (1) applies in relation to any other adverse effect on competition. (A3) Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).

• (3) In subsection (1), at the beginning insert “Where this subsection applies,”.

• (4) In subsection (2), after “discharged” insert “in accordance with subsection (1)”.

4

After section 161A (acceptance of enforcement undertakings: Part 4) (inserted by paragraph 16 of Schedule 11) insert—

(161B) (1) This section and sections 161C to 161E make provision in relation to the acceptance of undertakings and making of orders by a relevant authority on a trial basis for the purpose of assessing the effectiveness of qualifying remedial action (and the acceptance of undertakings and making of orders on that basis is referred to in this Part as an “implementation trial”). (2) In this section and in sections 161C to 161E “relevant authority” means the CMA or the Secretary of State. (3) In this Part— - “implementation trial measure” means an undertaking accepted, or order made, under section 161C (and references to the imposition of such a measure are to be read as the acceptance of an undertaking or the making of an order, as the case may be); - “implementation trial period” means, in relation to an implementation trial measure, the period—beginning with the day on which the relevant authority begins the implementation trial, andending with the last day on which the implementation trial measure is to have effect (see subsections (4) and (5)); - “qualifying remedial action” means remedial action in respect of—a matter concerning the provision or publication of information to consumers (whether directly or through an intermediary), orany other matter specified in regulations made by the Secretary of State; - “relevant adverse effect” means—where the relevant authority is the CMA, an adverse effect on competition identified in the report mentioned in section 138(1);where the relevant authority is the Secretary of State—an adverse effect on competition identified in the report mentioned in section 146(1);an effect adverse to the public interest identified in the report mentioned in section 146A(1); - “remedial action” means an action—where the relevant authority is the CMA, to be taken in accordance with section 138(2) or section 162A(5);where the relevant authority is the Secretary of State, to be taken in accordance with section 147(2) or 147A(2) (as the case may be). (4) The last day on which an implementation trial measure is to have effect is the earlier of— (a) the day specified under section 161D(5)(b)(ii), and (b) the day on which action is taken under section 138(2), 147(2) or 147A(2) (as the case may be) in relation to the relevant adverse effect which the relevant authority considers concerns the same qualifying matter. (5) But where— (a) an implementation trial measure is imposed in accordance with this section, and (b) the CMA extends, under section 138A(3), the period within which its duty under section 138(2) is required to be discharged in accordance with section 138A(A3) in relation to the measure, the last day on which the implementation trial measure is to have effect is the last day of that period as so extended. (161C) (1) The CMA may, in relation to a market investigation reference, begin an implementation trial where— (a) subsection (2) of section 138 applies (see subsection (1) of that section), and (b) the CMA has not taken, but is minded to take, qualifying remedial action. (2) The Secretary of State may, in relation to a restricted PI reference or a full PI reference, begin an implementation trial where— (a) subsection (2) of section 147, or subsection (2) of 147A (as the case may be), applies (see subsection (1) of the section in question), and (b) the Secretary of State has not taken, but is minded to take, qualifying remedial action. (3) Subsections (1) and (2) are subject to the duty to publish notices in section 161D. (4) The relevant authority begins an implementation trial by— (a) accepting, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or (b) making an order under this section, for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action. (5) Where the relevant authority begins an implementation trial, the relevant authority may also— (a) accept, from such persons as the relevant authority considers appropriate, undertakings under this section to take action specified or described in the undertakings, or (b) make an order under this section, in the circumstances mentioned in subsection (6). (6) The circumstances are that the relevant authority considers that accepting the undertakings or making the order would be likely to contribute to, or otherwise be of use for purposes of, remedying, mitigating or preventing, during the implementation trial period— (a) an adverse effect on competition identified in the report concerned or (as the case may be) an effect adverse to the public interest which has resulted from, or may be expected to result from, the features or combinations of features mentioned; (b) any detrimental effect on customers so far as it has resulted from, or may be expected to result from, any such adverse effect on competition. (161D) (1) Before the relevant authority begins an implementation trial under section 161C(4), the relevant authority must publish— (a) a provisional implementation trial notice, and (b) a final implementation trial notice (but see subsection (4)). (2) A provisional implementation trial notice must— (a) specify each implementation trial measure the relevant authority is minded to impose for the purposes of the implementation trial; (b) specify the relevant adverse effect with which each measure is seeking to deal; (c) specify any other facts which the relevant authority considers justify the imposition of each measure; (d) specify, in relation to each measure— (i) how the relevant authority intends to assess the likely effect of the measure, and (ii) the last day on which the relevant authority intends for the measure to have effect; (e) invite the making of representations by the persons on which the relevant authority is minded to impose one or more implementation trial measure (“implementation trial participants”) about the matters set out in the notice; (f) specify the means by which, and the time by which, such representations must be made. (3) The time specified under subsection (2)(f) by which representations must be made must be at least 15 days after the date on which the provisional implementation trial notice is published. (4) A relevant authority may publish a final implementation trial notice only where— (a) the relevant authority has published a provisional implementation trial notice under subsection (1), (b) the time for the implementation trial participants to make representations to the relevant authority in accordance with the notice has expired, and (c) after considering such representations (if any), it appears to the relevant authority that it is appropriate to begin an implementation trial under section 161C(4). (5) A final implementation trial notice must specify— (a) the implementation trial measures the relevant authority intends to impose for the purposes of the implementation trial, (b) in relation to each such measure— (i) how the relevant authority intends to assess the likely effect of the measure, and (ii) the last day on which the measure is to have effect. (161E) (1) The relevant authority may not accept an undertaking from a person under section 161C unless it has provided the person with information about the possible consequences of failing to comply with the undertaking. (2) The CMA may not begin an implementation trial under section 161C(4)— (a) in respect of qualifying remedial action that would be taken in accordance with subsection (2) of section 138, after the end of the period within which the CMA would otherwise have been required to discharge its duty under that subsection; (b) in respect of qualifying remedial action that would be taken in accordance with section 162A(5), after the end of the period mentioned in section 162A(6). (3) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under section 161C as they apply to action taken by the CMA under section 138(2). (4) Subsections (3)(b), (4), (5) and (6) of section 147 apply to action taken by the Secretary of State under section 161C in relation to a restricted PI reference as they apply to action taken by the Secretary of State under section 147(2). (5) Subsections (3) and (4)(b) of section 147A apply to action taken by the Secretary of State under section 161C in relation to a full PI reference as they apply to action taken by the Secretary of State under section 147A(2). (6) Subsections (3) to (5) of section 159 apply to undertakings accepted under section 161C as they apply to undertakings accepted under section 159(1). (7) Subsections (3) and (4) of section 161 apply to orders made under section 161C as they apply to orders made under section 161(1).

5

After section 162A (inserted by section 139(4)) insert—

(162B) (1) This section applies in relation to implementation trial measures imposed in accordance with section 161C. (2) The CMA must keep under review the effectiveness of the implementation trial measures. (3) The CMA must, in particular, from time to time consider— (a) whether an implementation trial measure has been or is being complied with; (b) whether an undertaking accepted under section 161C is no longer appropriate and— (i) one or more of the parties to it can be released from it; or (ii) it needs to be varied or to be superseded by a new undertaking under that section; and (c) whether an order made under section 161C is no longer appropriate and needs to be varied or revoked. (4) The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to— (a) any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C; (b) any possible new undertaking to be accepted by the Secretary of State under that section so as to supersede another undertaking given to the Secretary of State under that section; (c) any possible variation or revocation by the Secretary of State of an order made by the Secretary of State under that section; (d) any possible undertaking to be accepted by the Secretary of State under that section instead of an order made under that section, or any possible order to be made by the Secretary of State under that section instead of an undertaking accepted under that section. (5) The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to— (a) any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C; (b) any possible new undertaking to be accepted by the relevant authority under that section so as to supersede another undertaking given to it under that section; (c) any possible variation or revocation by the relevant authority of an order made by it under that section; (d) any possible undertaking to be accepted by the relevant authority under that section instead of an order made under that section, or any possible order to be made by the relevant authority under that section instead of an undertaking accepted under that section. (6) But the relevant authority may not do anything under this section that would result in— (a) the implementation trial period being extended; (b) an order or undertaking made under section 161C being out of compliance with any provision of that section. (7) In this section “relevant authority” has the meaning given by section 161B(2). (8) Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under this section as those subsections apply to action taken by the CMA under section 138(2). (9) Subsections (3)(b), (5) and (6) of section 147 apply to action taken by the Secretary of State under this section in respect of a restricted PI reference as those subsections apply to action taken by the Secretary of State under section 147(2). (10) Subsection (3) of section 147A applies to action taken by the Secretary of State under this section in respect of a full PI reference as that subsection applies to action taken by the Secretary of State under section 147A(2).

6

In section 165 (procedural requirements for certain undertakings and orders: Part 4)—

• (a) after “section 159” insert “or 161C”;

• (b) for “or 161” substitute “, 161 or 161C”;

7

• (1) Section 167 (rights to enforce undertakings and orders under Part 4) is amended as follows.

• (2) In subsection (1)—

• (a) the words from “any” to the end become paragraph (a);

• (b) after that paragraph insert

; (b) any undertaking accepted, or order made, under section 161C.

• (3) In subsection (5), for “enforcement undertaking or enforcement order” substitute “undertaking or order to which this section applies”.

• (4) In subsection (6), for “enforcement undertaking or an enforcement order” substitute “undertaking or order to which this section applies”.

• (5) In subsection (9), for “enforcement undertaking or an enforcement order” substitute “undertaking or order to which this section applies”.

8

• (1) Section 167A (enforcement of enforcement undertakings and orders: imposition of penalties) (inserted by paragraph 18 of Schedule 11) is amended as follows.

• (2) In the heading, after “orders” insert “etc”.

• (3) In subsection (1)—

• (a) the words “an enforcement undertaking or enforcement order” become paragraph (a);

• (b) after that paragraph insert

; (b) any undertaking accepted, or order made, under section 161C.

9

• (1) In section 167B (penalties under section 167A: amount) (inserted by paragraph 18 of Schedule 11), subsection (5)(b) is amended as follows.

• (2) The words “the enforcement undertaking or enforcement order” become sub-paragraph (i).

• (3) After that sub-paragraph insert

, or (ii) the undertaking accepted, or order made, under section 161C.

10

• (1) In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6), paragraph (a) of the definition of “relevant decision” is amended as follows.

• (2) Omit the “and” at the end of sub-paragraph (iii).

• (3) after that sub-paragraph insert—

(iv) to accept undertakings or make orders under section 161C; and

.

11

In section 172 (further publicity requirements: Part 4), in subsection (2), after paragraph (zb) insert—

(zc) any decision made by it under section 138A(A1)(b) that it is not reasonably practicable for the CMA to discharge its duty under section 138(2) in accordance with section 138A(1);

Schedule 10

Part 1 — Investigations under Part 1 of CA 1998 (competition)

1

In Part 1 of CA 1998 (competition), Chapter 3 (investigation and enforcement) is amended as follows.

2

• (1) In section 26 (investigations: powers to require documents and information), subsection (3) is amended as follows.

• (2) In the words before paragraph (a) omit “indicate”.

• (3) In paragraph (a), at the beginning insert “indicate”.

• (4) For paragraph (b) substitute—

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

3

• (1) In section 26A (investigations: power to ask questions), subsection (5) is amended as follows.

• (2) In the words before paragraph (a) omit “indicate”.

• (3) In paragraph (a), at the beginning insert “indicate”.

• (4) For paragraph (b) substitute—

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

4

In section 27 (power to enter business premises without a warrant), in subsection (2), for paragraph (c) substitute—

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

5

• (1) In section 29 (entry of premises under warrant: supplementary), subsection (1) is amended as follows.

• (2) In the words before paragraph (a) omit “indicate”.

• (3) In paragraph (a), at the beginning insert “indicate”.

• (4) For paragraph (b) substitute—

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

6

• (1) In section 40ZD (information relating to transferred EU anti-trust commitments and transferred EU anti-trust directions), subsection (3) is amended as follows.

• (2) The words from “indicates the subject matter” to the end become paragraph (a).

• (3) After that paragraph insert

, and (b) includes information about the possible consequences of failing to comply with the notice.

7

For the italic heading before section 40A substitute—

8

Before section 40A (but after the italic heading substituted by paragraph 7) insert—

(40ZE) (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 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.

9

• (1) Section 40A (penalties: failure to comply with requirements) is amended as follows.

• (2) In the heading, for “failure to comply with requirements” substitute “amount”.

• (3) For subsection (1) substitute—

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

• (4) In subsection (2), for the words before paragraph (a), substitute “A penalty imposed under section 40ZE(1)(a) may be—”.

• (5) After subsection (2) insert—

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

• (6) In subsection (3)—

• (a) for the words before paragraph (a) substitute “A penalty imposed under section 40ZE(1) on a person who is not an undertaking must not—”;

• (b) in paragraph (a), for “such amount as the Secretary of State may by order specify” substitute “£30,000”;

• (c) in paragraph (b), for “such amount per day as the Secretary of State may so specify” substitute “£15,000 per day”;

• (d) in paragraph (c) omit “as the Secretary of State may so specify”.

• (7) After subsection (3) insert—

(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.

• (8) Omit subsections (4) and (5).

• (9) In subsection (6), in paragraph (a)—

• (a) for “notice under section 112” substitute “provisional penalty notice under section 112(A1)”;

• (b) for “subsection (9)” substitute “section 40ZE(5)”.

• (10) After subsection (7) insert—

(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.

• (11) In subsection (8), for “an order under subsection (3)” substitute “regulations under subsection (7A)”.

• (12) Omit subsection (9).

• (13) At the end insert—

(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)).

10

• (1) Section 40B (statement of policy on penalties) is amended as follows.

• (2) In subsection (1)—

• (a) for “use of its powers” substitute “exercise of functions”;

• (b) for “40A” substitute “40ZE”.

• (3) In subsection (2), for “40A” substitute “40ZE”.

• (4) In subsection (4), for “such persons” substitute “the Secretary of State and such other persons”.

• (5) After subsection (5) insert—

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

• (6) Omit subsection (6).

11

• (1) Section 42 (offences) is amended as follows.

• (2) For the heading substitute “Obstruction”.

• (3) After subsection (7) insert—

(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).

12

In section 43 (destroying or falsifying documents), after subsection (1) insert—

(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).

13

In section 44 (false or misleading information), after subsection (2) insert—

(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).

Part 2 — Investigations under Part 3 of EA 2002 (mergers)

14

In Part 3 of EA 2002 (mergers), Chapter 5 (supplementary: investigation powers) is amended as follows.

15

• (1) Section 110 (enforcement of powers under section 109: general) is amended as follows.

• (2) In the heading, for “general” substitute “imposition of penalties”.

• (3) For subsection (1) substitute—

(1) The CMA may impose a penalty on a person in accordance with section 111 where the CMA considers that— (a) the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109; (b) the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 109(6); (c) the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 109. (1A) The appropriate authority may impose a penalty on a person in accordance with section 111 where the authority considers that— (a) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part; (b) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part. (1B) In this section, and in sections 111 to 117, “the appropriate authority” means— (a) the CMA; (b) the Secretary of State; (c) OFCOM. (1C) But the appropriate authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 if the person has, by reason of that act or omission, been found guilty of that offence.

.

• (4) In subsection (2), for “subsection (1)” substitute “subsection (1)(a)”.

• (5) Omit subsections (3) to (8).

• (6) For subsection (9) substitute—

(9) In deciding whether and, if so, how to proceed under subsection (1) or (1A)or section 39(4) or 51(4) (including that enactment as applied by section 65(3))— (a) the CMA must have regard to the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred; (b) OFCOM must have regard to the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.

16

• (1) Section 110A (restriction on powers to impose penalties under section 110) is amended as follows.

• (2) In subsection (1)—

• (a) for “110(1) or (3)” substitute “110(1)(a) or (b)”;

• (b) for “4” substitute “ten”.

• (3) In subsection (2), for “the failure or (as the case may be) the obstruction or delay” substitute “the act or omission giving rise to the penalty”.

17

• (1) Section 111 (penalties) is amended as follows.

• (2) In the heading, at the end insert “: amount”.

• (3) In subsection (1)—

• (a) for “(3)” substitute “(1A)”;

• (b) for “the CMA” substitute “the appropriate authority”.

• (4) In subsection (2) for “110(1)” substitute “110(1)(a)”.

• (5) In subsection (3), for “section 110(3)” substitute “any of section 110(1)(b), (c) or (1A)”.

• (6) In subsection (4)—

• (a) for the words before paragraph (a) substitute “A penalty imposed under section 110(1) or (1A) on a person who does not own or control an enterprise must not—”;

• (b) in paragraph (a), for “such amount as the Secretary of State may by order specify” substitute “£30,000”;

• (c) in paragraph (b), for “such amount per day as the Secretary of State may so specify” substitute “£15,000 per day”;

• (d) in paragraph (c) omit “as the Secretary of State may so specify”.

• (7) After subsection (4) insert—

(4A) A penalty imposed under section 110(1) or (1A) on any other person must not— (a) in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person; (b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.

• (8) In subsection (5), in paragraph (a)—

• (a) for “notice under section 112” substitute “provisional penalty notice under section 112(A1)”;

• (b) in paragraph (b), in the words before sub-paragraph (i), for “the CMA” substitute “the appropriate authority”.

• (9) Omit subsections (6) and (7).

• (10) Before subsection (8) insert—

(7A) The Secretary of State may by regulations amend subsection (4)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.

• (11) In subsection (8)—

• (a) for “an order under subsection (4) or (6)” substitute “regulations under subsection (7A)”;

• (b) after “the CMA” insert “, OFCOM”.

• (12) After subsection (8) insert—

(9) The Secretary of State may by regulations make provision for determining, for the purposes of this section— (a) when an enterprise is to be treated as being controlled by a person; (b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise. (10) Regulations under subsection (9)(b) may, in particular, make provision as to— (a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover; (b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined. (11) Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).

18

• (1) Section 112 (penalties: main procedural requirements) is amended as follows.

• (2) Before subsection (1) insert—

(A1) Before the appropriate authority imposes a penalty under section 110(1) or (1A), the authority must give the person concerned a provisional penalty notice. (A2) A provisional penalty notice must— (a) contain a draft of the final penalty notice the appropriate authority is minded to give to the person under subsection (1), (b) invite the making of representations by the person to the authority about the proposed final penalty notice, and (c) specify the means by which, and the time by which, such representations must be made. (A3) The appropriate authority must have regard to any representations received in accordance with a provisional penalty notice before imposing a penalty under section 110(1) or (1A) (and accordingly may not impose such a penalty before the time for the person concerned to make representations to the authority in accordance with that notice has expired).

• (3) In subsection (1)—

• (a) for “(3)” substitute “(1A)”;

• (b) for “the CMA shall give notice of the penalty” substitute “the appropriate authority must give the person concerned a final penalty notice”.

• (4) In subsection (2)—

• (a) in the words before paragraph (a), after “The” insert “final penalty”;

• (b) in paragraph (a), for “the CMA” substitute “the appropriate authority”;

• (c) in paragraph (d), for “failure (or as the case may be) the obstruction or delay which the CMA” substitute “act or omission in question which the appropriate authority”;

• (d) in paragraph (e), for “the CMA” substitute “the appropriate authority”;

• (e) in paragraph (f), for “the CMA” substitute “the appropriate authority”.

• (5) In subsection (3), for “the CMA” substitute “the appropriate authority”.

• (6) After subsection (3) insert—

(3A) A provisional penalty notice is given by serving a copy of the notice on the person on whom the appropriate authority is minded to impose the penalty.

• (7) In subsection (4), in the words before paragraph (a), for “notice under this section” substitute “final penalty notice”.

19

• (1) Section 113 (payment and interest by instalments) is amended as follows.

• (2) In subsection (3), for “the CMA” substitute “the appropriate authority”.

• (3) In subsection (4), for “the CMA” substitute “the appropriate authority”.

20

• (1) Section 114 (appeals in relation to penalties) is amended as follows.

• (2) In subsection (1), for “(3)” substitute “(1A)”

• (3) In subsection (4), in the words before paragraph (a), for “the CMA” substitute “the appropriate authority”.

• (4) In subsection (5), in paragraph (c), for “the CMA” substitute “the appropriate authority”.

• (5) After subsection (5) insert—

(5A) In the case of a penalty imposed on a person by the CMA or OFCOM, in considering what is appropriate for the purposes of subsection (5) the Competition Appeal Tribunal must have regard to the relevant guidance.

• (6) In subsection (7), in paragraph (b), for “the CMA” substitute “the appropriate authority”.

• (7) In subsection (12)—

• (a) the words from ““the appropriate court”” to the end become paragraph (a);

• (b) after that paragraph insert—

(b) “the relevant guidance” means— (i) in the case of a penalty imposed on a person by the CMA, the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred; (ii) in the case of a penalty imposed on a person by OFCOM, the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.

21

• (1) Section 115 (recovery of penalties) is amended as follows.

• (2) In the words before paragraph (a), for “(3)” substitute “(1A)”.

• (3) In the words after paragraph (b), for “the CMA” in both places it occurs substitute “the appropriate authority”.

22

• (1) Section 116 (statement of policy) is amended as follows.

• (2) For subsection (1) substitute—

(1) The CMA must prepare and publish a statement of policy in relation to— (a) the imposition of penalties under section 110, and (b) the enforcement of notices under section 109.

• (3) In subsection (2), for “(3)” substitute “(1A)”.

• (4) In subsection (4), for “such” substitute “the Secretary of State and such other”.

• (5) After subsection (4) insert—

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

23

After section 116 insert—

(116A) (1) A person (“P”) commits an offence if the person intentionally alters, suppresses or destroys any document which P has been required to produce by a notice under section 109. (2) But P does not commit an offence under subsection (1) by reason of any act or omission if the CMA has proceeded against P under section 110(1) or (1A) in relation to that act or omission. (3) A person who commits 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. (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 suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

24

• (1) Section 117 (false or misleading information) is amended as follows.

• (2) In sub-paragraph (1), in paragraph (a) for “the CMA, OFCOM or the Secretary of State” substitute “the appropriate authority”.

• (3) In sub-paragraph (2), in the words after paragraph (b), for “the CMA, OFCOM or the Secretary of State” substitute “the appropriate authority”.

• (4) After subsection (2) insert—

(2A) A person does not commit an offence under subsection (1) or (2) by reason of any act or omission if the appropriate authority has proceeded against the person under section 110(1) or (1A) in relation to that act or omission.

25

In section 120 (review of decisions under Part 3), in subsection (2), in paragraph (a), for “(3)” substitute “(1A)”.

Part 3 — Investigations under Part 4 of EA 2002 (market studies and market investigations)

26

In Part 4 of EA 2002 (market studies and market investigations), Chapter 4 (supplementary: investigation powers) is amended as follows.

27

• (1) Section 174A (enforcement of powers under section 174: general) is amended as follows.

• (2) In the heading, for “general” substitute “imposition of penalties”.

• (3) For subsection (1) substitute—

(1) The CMA may impose a penalty on a person in accordance with section 174D where the CMA considers that— (a) the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174; (b) the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 174(7); (c) the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 174. (1A) The relevant authority may impose a penalty on a person in accordance with section 174D where the authority considers that— (a) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part; (b) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part. (1B) In this section, and in sections 174B to 174D, “the relevant authority” means— (a) the CMA; (b) the Secretary of State; (c) the appropriate Minister (so far as the Minister is not the Secretary of State acting alone). (1C) But the relevant authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 as applied by section 180 if the person has, by reason of that act or omission, been found guilty of that offence.

• (4) In subsection (2), for “subsection (1)” substitute “subsection (1)(a)”.

• (5) Omit subsections (3) to (7).

• (6) In subsection (8)—

• (a) for “(3)” substitute “(1A)”;

• (b) for “failure concerned or (as the case may be) the obstruction or delay” substitute “act or omission”.

• (7) After subsection (9) insert—

(10) Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (1A) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications— (a) any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section; (b) section 114(5A) is to be read as if the words “or OFCOM” were omitted; (c) section 114(12) is to be read as if, for paragraph (b), there were substituted— (b) “relevant guidance” means the statement of policy which was most recently published under section 174E at the time when the act or omission concerned occurred.

28

• (1) Section 174B (restriction on powers to impose penalties under section 174A) is amended as follows.

• (2) In subsection (1)—

• (a) for “174A(1) or (3)” substitute “174A(1)(a) or (b)”;

• (b) for “4” substitute “ten”.

• (3) In subsection (2), for “the failure or (as the case may be) the obstruction or delay” substitute “the act or omission giving rise to the penalty”.

29

• (1) Section 174D (penalties) is amended as follows.

• (2) In the heading, at the end insert “: amount”.

• (3) In subsection (1)—

• (a) for “(3)” substitute “(1A)”;

• (b) for “the CMA” insert “the relevant authority”.

• (4) In subsection (2), in the words before paragraph (a), for “174A(1)” substitute “174A(1)(a)”.

• (5) In subsection (3), for “section 174A(3)” substitute “any of section 174A(1)(b), (c) or (1A)”.

• (6) In subsection (4)—

• (a) for the words before paragraph (a) substitute “A penalty imposed under section 174A(1) or (1A) on a person who does not own or control an enterprise must not—”;

• (b) in paragraph (a), for “such amount as the Secretary of State may by order specify” substitute “£30,000”;

• (c) in paragraph (b), for “such amount per day as the Secretary of State may so specify” substitute “£15,000 per day”;

• (d) in paragraph (c) omit “as the Secretary of State may so specify”.

• (7) After subsection (4) insert—

(4A) A penalty imposed under section 174A(1) or (1A) on any other person must not— (a) in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person; (b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day.

• (8) Omit subsections (5) and (6).

• (9) Before subsection (7) insert—

(6A) The Secretary of State may by regulations amend subsection (4)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate.

• (10) In subsection (7), in the words before paragraph (a), for “an order under subsection (4) or (5)” substitute “regulations under subsection (6A)”.

• (11) In subsection (8), in paragraph (a)—

• (a) for “notice under section 112” substitute “provisional penalty notice under section 112(A1)”;

• (b) for “subsection (10)” substitute “section 174A(10)”.

• (12) Omit subsection (10).

• (13) After subsection (10) insert—

(11) The Secretary of State may by regulations make provision for determining, for the purposes of this section— (a) when an enterprise is to be treated as being controlled by a person; (b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise. (12) Regulations under subsection (11)(b) may, in particular, make provision as to— (a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover; (b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined. (13) Regulations under subsection (11) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (12)).

30

• (1) Section 174E (statement of policy on penalties) is amended as follows.

• (2) For subsection (1) substitute—

(1) The CMA must prepare and publish a statement of policy in relation to— (a) the imposition of penalties under section 174A, and (b) the enforcement of notices under section 174.

• (3) In subsection (2), for “(3)” substitute “(1A)”.

• (4) In subsection (4), for “such” substitute “the Secretary of State and such other”.

• (5) After subsection (4) insert—

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

31

In section 179 (review of decisions under Part 4), in subsection (2), in paragraph (a), for “(3)” substitute “(1A)”.

32

• (1) Section 180 (offences) is amended as follows.

• (2) In subsection (1), after “Sections” insert “116A (intentional destruction etc of documents),”.

• (3) For subsection (2) substitute—

(1A) For the purposes of subsection (1), section 116A has effect as if— (a) references to section 109 were references to section 174; (b) the reference to section 110(1) or (1A)were a reference to section 174A(1) or (1A). (1B) For the purposes of subsection (1), section 117 has effect as if— (a) references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A; (b) the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

33

In section 183 (interpretation: Part 4), in subsection (1), at the appropriate place insert—

• “enterprise” means the activities, or part of the activities, of a business;

.

34

In section 184 (index of defined expressions: Part 4), at the appropriate place in the table insert—

Enterprise	Section 183(1)

.

Schedule 11

Part 1 — Commitments and directions under Part 1 of CA 1998 (competition)

1

In Part 1 of CA 1998 (competition), Chapter 3 (investigation and enforcement) is amended as follows.

2

In section 31A (commitments), after subsection (2) insert—

(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.

3

In section 31E (enforcement of commitments), after subsection (3) insert—

(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.

4

In the italic heading before section 32, at the end insert “: directions and interim measures”.

5

In section 34 (enforcement of directions), after subsection (3) insert—

(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.

6

After section 35 insert—

(35A) (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) (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)). (35C) (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.

Part 2 — Undertakings and orders under Part 3 of EA 2002 (mergers)

7

In Part 3 of EA 2002 (mergers), Chapter 4 (enforcement) is amended as follows.

8

• (1) Section 34C (functions to be exercised by CMA groups) is amended as follows.

• (2) In subsection (1)(e), for “94A” substitute “94AA”.

• (3) In subsection (3)(e), for “and 94” substitute “, 94 and 94AA”.

9

• (1) Section 89 (subject-matter of undertakings) is amended as follows.

• (2) In the heading, at the start insert “Acceptance and”.

• (3) Before subsection (1) insert—

(A1) An appropriate authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking.

• (4) After subsection (2) insert—

(3) In this section, “appropriate authority” has the same meaning as in section 94AA.

10

In section 94 (rights to enforce undertakings and orders), after subsection (9) insert—

(10) In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 94B at the time of the failure to comply with the undertaking or (as the case may be) order.

11

For section 94A substitute—

(94AA) (1) The appropriate authority may, in accordance with section 94AB, impose a penalty on a person— (a) from whom the authority has accepted an enforcement undertaking, or (b) to whom an enforcement order is addressed, where the authority considers that the person has, without reasonable excuse, failed to comply with the undertaking or order. (2) In this section and in section 94AB, “the appropriate authority” means— (a) in relation to an enforcement undertaking or enforcement order made by the Secretary of State under Schedule 7, the Secretary of State; (b) in relation to any other enforcement undertaking or enforcement order, the CMA. (3) In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 94B at the time of the failure to comply. (94AB) (1) A penalty under section 94AA(1) is to be such amount as the appropriate authority considers appropriate. (2) The amount must be— (a) a fixed amount, (b) an amount calculated by reference to a daily rate, or (c) a combination of a fixed amount and an amount calculated by reference to a daily rate. (3) A penalty imposed under section 94AA(1) on a person who does not own or control an enterprise must not— (a) in the case of a fixed amount, exceed £30,000; (b) in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day. (4) A penalty imposed under section 94AA(1) on any other person must not— (a) in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed; (b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day. (5) In imposing a penalty by reference to a daily rate— (a) no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) (as applied by subsection (6)), and (b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person complies with the enforcement undertaking or enforcement order. (6) Sections 112 to 115 apply in relation to a penalty imposed under section 94AA(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications— (a) any reference in those provisions to the appropriate authority is to be read as a reference to the appropriate authority within the meaning of this section (see section 94AA(2)); (b) section 114(5A) is to be read as if the words “or OFCOM” were omitted; (c) section 114(12) is to be read as if, for paragraph (b), there were substituted— (b) “relevant guidance” means the statement of policy which was most recently published under section 94B at the time when the act or omission concerned occurred. (7) The Secretary of State may by regulations amend subsection (3)(a) and (b) by substituting for either or both of the sums for the time being specified in those paragraphs such other sum or sums as the Secretary of State considers appropriate. (8) Before making regulations under subsection (7) the Secretary of State must consult— (a) the CMA, and (b) such other persons as the Secretary of State considers appropriate. (9) The Secretary of State may by regulations make provision for determining, for the purposes of this section— (a) when an enterprise is to be treated as being controlled by a person; (b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise. (10) Regulations under subsection (9)(b) may, in particular, make provision as to— (a) the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover or daily turnover; (b) the date, or dates, by reference to which an enterprise’s turnover, or daily turnover, is to be determined. (11) Regulations under subsection (9) may, in particular, make provision enabling the appropriate authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).

12

• (1) Section 94B (statement of policy in relation to powers under sections 94 and 94A) is amended as follows.

• (2) In the heading—

• (a) for “powers” substitute “functions”.

• (b) for “94A” substitute “94AA”.

• (3) In subsection (1)—

• (a) in the words before paragraph (a), for “use of its powers” substitute “exercise of functions”;

• (b) in paragraph (a) omit “, insofar as they relate to interim measures”;

• (c) in paragraph (b), for “94A” substitute “94AA”.

• (4) In subsection (2), for “94A” substitute “94AA”.

• (5) Omit subsection (6).

13

In section 120 (review of decisions under Part 3), in subsection (2), in paragraph (a), for “94A(1)” substitute “94AA(1)”.

Part 3 — Undertakings and orders under Part 4 of EA 2002 (market studies and market investigations)

14

In Part 4 of EA 2002 (market studies and market investigations), Chapter 3 (enforcement) is amended as follows.

15

• (1) Section 133A (functions to be exercised by CMA groups) is amended as follows.

• (2) In subsection (1)(i), for “section 167” substitute “sections 167 and167A”.

• (3) In subsection (2)(e), for “section 167” substitute “sections 167 and167A”.

16

After section 161 insert—

(161A) (1) The relevant authority may not accept an enforcement undertaking from a person unless it has provided the person with information about the possible consequences of failing to comply with the undertaking. (2) In subsection (1), “the relevant authority” means— (a) in the case of a restricted PI reference or a full PI reference, the Secretary of State; (b) in any other case, the CMA.

17

In section 167 (rights to enforce undertakings and orders under this Part), after subsection (9) insert—

(10) In deciding whether and, if so, how to proceed under this section, the CMA must have regard to the statement of policy which was most recently published by it under section 167C at the time of the failure to comply with the undertaking or (as the case may be) order.

18

After section 167 insert—