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Digital Markets, Competition and Consumers Act 2024

Type Public General Act

Publication 2024-05-24

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

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“digital markets proceedings” means proceedings under section 101 (rights to enforce requirements of Part 1) or proceedings on appeal from such proceedings.

(5) Paragraphs 7 and 27 of Schedule 8A to the Competition Act 1998 (other definitions; disclosure orders) apply for the purposes of this section as they apply for the purposes of Part 6 of that Schedule.

(6) In Schedule 8A to the Competition Act 1998—

(a) in paragraph 7 (other definitions), after sub-paragraph (2) insert—

(2A) “Digital markets proceedings” means proceedings under section 101 of the Digital Markets, Competition and Consumer Act 2024 (rights to enforce requirements of Part 1).

;

(b) in paragraph 28, after “competition proceedings” insert “or digital markets proceedings”;

(d) in paragraph 30(1), after “competition proceedings” insert “or digital markets proceedings”.

Interpretation

Groups

117

(1) This section makes provision about groups for the purposes of this Part.

(2) An undertaking is part of a group if one or more bodies corporate which are comprised in the undertaking are members of the same group as one or more other bodies corporate.

(3) For the purposes of this Part, two bodies corporate are members of the same group if—

(a) one is the subsidiary of the other, or

(b) both are subsidiaries of the same body corporate.

General interpretation

118

(1) In this Part—

“breach investigation” means an investigation (including a conduct investigation) into whether an undertaking is breaching or has breached a requirement imposed on the undertaking under this Part by virtue of the undertaking being, or having been, a designated undertaking;

“conduct investigation” has the meaning given by section 26 (1);

“conduct investigation notice” has the meaning given by section 26 (3);

“conduct investigation period” has the meaning given by section 30 (2);

“conduct requirements” has the meaning given by section 19 (3);

“consumer” has the meaning given by section 129(1) of EA 2002;

“the court”, except where otherwise stated, means— in relation to England and Wales or Northern Ireland, the High Court, and in relation to Scotland, the Court of Session;

“customer” includes a customer who is not a consumer;

“designated undertaking” means an undertaking which the CMA has designated as having SMS in respect of a digital activity;

“designation” means the designation of an undertaking as having SMS in respect of a relevant digital activity;

“designation period” has the meaning given by section 15 (3)(e);

“digital activity” has the meaning given by section 3 (1);

“digital content” has the meaning given by section 330;

“digital markets functions” means— the functions that the CMA has under this Part, and the CMA’s power to do anything that is calculated to facilitate, or is conducive or incidental to, the performance of those functions (see paragraph 20 of Schedule 4 to ERRA 2013 (additional powers));

“digital markets investigation” means— an SMS investigation; a breach investigation (including a conduct investigation); a PCI investigation;

the “digital markets investigation powers” are the powers that the CMA has under— section 69 (power to require information); section 71 (power of access); section 72 (power to interview); section 74 (power to enter business premises without a warrant); section 75 (power to enter premises under a warrant); section 79 (reports by skilled persons);

“enforcement order” has the meaning given by section 31 (1);

“the FCA” means the Financial Conduct Authority;

“final offer initiation notice” has the meaning given by section 40 (1);

“final offer order” has the meaning given by section 41 (2);

“final offer payment terms” has the meaning given by section 38 (1);

“final offer period” has the meaning given by section 41 (3);

“further SMS investigation” has the meaning given by section 10 (3);

“grouped third parties” has the meaning given by section 39 (3);

“grouped transactions” has the meaning given by section 39 (3);

“information” includes— information in the form of a document, whether in draft or final form; information in any other form; data, code, algorithms, estimates, forecasts, returns and explanations;

“information notice” has the meaning given by section 69 (2);

“initial SMS investigation” has the meaning given by section 9 (2);

“interim enforcement order” has the meaning given by section 32 (1);

“joined third parties” has the meaning given by section 39 (1);

“OFCOM” means the Office of Communications;

“officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body;

“PCI” stands for “pro-competition intervention”;

“PCI decision” has the meaning given by section 49 (1);

“PCI investigation” has the meaning given by section 47 (1);

“PCI investigation notice” has the meaning given by section 48 (1);

“PCI investigation period” has the meaning given by section 50 (1);

“person”, in addition to the meaning given by the Interpretation Act 1978, includes an undertaking;

“the PRA” means the Prudential Regulation Authority;

“pro-competition order” has the meaning given by section 46 (3)(a);

“product” means— goods; services; digital content;

the “regulatory digital markets functions” are— the power to open an SMS investigation under section 9 (1) (initial SMS investigation) or section 10 (1) or (2) (further SMS investigation); the power to designate an undertaking as having SMS under Chapter 2 (strategic market status); the power to revoke a designation under Chapter 2 (strategic market status); the power to impose or revoke conduct requirements under Chapter 3 (conduct requirements); the power to make, replace or revoke PCIs under Chapter 4 (pro-competition interventions);

“relevant digital activity” in relation to a designated undertaking means a digital activity in respect of which the undertaking has been designated as having SMS;

the “relevant service or digital content” in relation to a digital activity means the service or digital content the provision of which constitutes (together with any other activity carried out for the purposes of that provision) the digital activity;

“SMS” stands for “strategic market status”;

“SMS conditions” are the conditions set out in section 2 (2);

“SMS decision notice” has the meaning given by section 14 (2);

“SMS investigation” means an initial SMS investigation and a further SMS investigation;

“SMS investigation notice” has the meaning given by section 11 (1);

“SMS investigation period” has the meaning given by section 14 (2);

“submission date” has the meaning given by section 40 (2)(d);

“subsidiary” has the meaning given by section 1159 of the Companies Act 2006;

“the Tribunal” means the Competition Appeal Tribunal;

“Tribunal rules” means rules under section 15 of EA 2002;

“the turnover condition” has the meaning given by section 7;

“UK user” and “UK customer” mean any user or, as the case may be, customer who it is reasonable to assume— in the case of an individual, is normally in the United Kingdom, and in any other case, is established in the United Kingdom;

“undertaking” has the same meaning as it has for the purposes of Part 1 of CA 1998 (competition: agreements, abuse of dominant position etc);

“user” includes any person, legal or natural, and, in relation to a digital activity, means any user of the relevant service or digital content.

(2) In this Part—

(a) references to “giving notice” or “giving a notice” are to giving notice or giving a notice in writing;

(b) references to “using” include, in relation to a service or digital content, interacting, or carrying out activities that interact, in any way, directly or indirectly, with the service or digital content;

(c) references to the supply, provision, acquisition or use of goods or services include the supply, provision, acquisition or use of digital content.

(3) In this Part, a person is “connected to” an undertaking if that person—

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

(b) is employed by the undertaking, or

Part 2 — Competition

Chapter 1 — Anti-trust

The Chapter 1 and 2 prohibitions

Removal of requirement for agreements etc to be implemented in the UK

119

(1) In Chapter 1 of Part 1 of CA 1998 (agreements), section 2 (agreements etc preventing, restricting or distorting competition) is amended as follows.

(2) For subsection (1) substitute—

(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.

(3) Omit subsection (3).

(4) The amendments made by this section do not have effect in relation to agreements between undertakings (within the meaning of CA 1998) made before the coming into force of this section.

(5) Subsection (5) of section 2 of CA 1998 applies for the purposes of subsection (4) as it applies for the purposes of Part 1 of that Act.

Repeal of exclusions relating to the European Coal and Steel Community

120

(1) Part 1 of CA 1998 (competition) is amended as follows.

(2) In Schedule 3 (planning obligations and general exclusions) omit paragraph 8 (coal and steel).

(3) In section 3 (Chapter 1: excluded agreements), in subsection (3)(b)(ii) omit “, 2, 8”.

(4) In section 19 (Chapter 2: excluded cases) omit subsection (3).

Investigations

Duty to preserve documents relevant to investigations

121

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

(2) After section 25A insert—

(25B) (1) Subsection (2) applies where a person knows or suspects that an investigation by the CMA under section 25 is being or is likely to be carried out. (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. (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.

(3) In section 40ZE (enforcement of requirements: imposition of penalties) (inserted by paragraph 8 of Schedule 10), in subsection (1), in paragraph (a), after “imposed on the person” insert “by section 25B or”.

Production of information authorised by warrant

122

(1) Section 28 of CA 1998 (power to enter business premises under a warrant) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a), in the words before sub-paragraph (i), after “there are on” insert “or accessible from”;

(b) in paragraph (b), in sub-paragraph (i), after “there are on” insert “or accessible from”;

(3) In subsection (2)—

(a) in paragraph (f) omit “and which the named officer considers relates to any matter relevant to the investigation,”;

(b) after that paragraph insert—

(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.

(4) Section 28A of CA 1998 (power to enter domestic premises under a warrant) is amended as follows.

(5) In subsection (1)—

(a) in paragraph (a), in the words before sub-paragraph (i), after “there are on” insert “or accessible from”;

(b) in paragraph (b), in sub-paragraph (i), after “there are on” insert “or accessible from”.

(6) In subsection (2)—

(a) in paragraph (f) omit “and which the named officer considers relates to any matter relevant to the investigation,”;

(b) after that paragraph insert—

(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.

(7) In section 30 of CA 1998 (privileged communications), after subsection (1) insert—

(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.

Additional powers of seizure from domestic premises

123

(1) Part 2 of the Criminal Justice and Police Act 2001 (powers of seizure) is amended as follows.

(2) In section 50 (additional powers of seizure from premises), in subsection (6), after “section 28(2)(b)” insert “or 28A(2)(b)”.

(3) In section 57(1) (retention of seized items), in paragraph (n), for “section 28(7)” substitute “sections 28(7) and 28A(8)”.

(4) In section 63(2) (powers of seizure: copies), in paragraph (h), after “section 28(2)(f)” insert “or (g) or 28A(2)(f) or (g)”.

(5) In section 64(3) (meaning of “appropriate judicial authority”), in paragraph (a)(iii), for “section 28(2)” substitute “sections 28(2) and 28A(2)”.

(6) In section 65(2) (meaning of “legal privilege”), in paragraph (a)—

(a) for “power” substitute “powers”;

(b) after “section 28(2)” insert “or 28A(2)”.

(7) In section 66(5) (general interpretation of Part 2), in paragraph (h), for “section 28(2)(c)” substitute “sections 28(2)(c) and 28A(2)(c)”.

(8) In Part 1 of Schedule 1 (powers of seizure: powers to which section 50 applies), in paragraph 67 (the Competition Act 1998), for “section 28(2)” substitute “sections 28(2) and 28A(2)”.

Proceedings before the Competition Appeal Tribunal

Standard of review on appeals against interim measures directions

124

(1) In section 46 of CA 1998 (appealable decisions), in subsection (3)—

(a) after paragraph (h) insert—

(ha) to make directions under section 35, (hb) not to make directions under section 35,

;

(b) in the words after paragraph (i), for “, 33 or 35” substitute “or 33”.

(2) Schedule 8 to CA 1998 (appeals) is amended as follows.

(3) In paragraph 3 (decisions of the tribunal: merits-based appeals), in sub-paragraph (A1)—

(a) in paragraph (a), for “or (h)” substitute “, (h), (ha) or (hb)”;

(b) in paragraph (b), for “or (c)” substitute “, (c), (d) or (e)”.

(4) In paragraph 3A (decisions of the tribunal: appeals on judicial review principles), in sub-paragraph (1)—

(a) in paragraph (a), for “or (h)” substitute “, (h), (ha) or (hb)”;

(b) in paragraph (b), for “or (c)” substitute “, (c), (d) or (e)”.

Declaratory relief

125

Schedule 3makes provision allowing the Competition Appeal Tribunal to grant declaratory relief.

Exemplary damages

126

(1) In section 47C of CA 1998 (collective proceedings: damages and costs), before subsection (2) insert—

(1) The Tribunal may not award exemplary damages in collective proceedings.

(2) In Schedule 8A of CA 1998 (further provision about claims in respect of loss or damage before a court or the Tribunal)—

(a) in Part 4 (cartels), in paragraph 15 (liability of immunity recipients)—

(i) the existing text becomes sub-paragraph (1);

(ii) in sub-paragraph (1), in the words before paragraph (a), for “in respect of loss and damage suffered by” substitute “to”;

(iii) after that sub-paragraph insert—

(2) But an immunity recipient is not liable (either alone or jointly) by virtue of sub-paragraph (1)(e) to pay exemplary damages.

;

(b) omit Part 8 (exemplary damages);

(3) The amendments made by this section have effect in relation to competition claims, competition proceedings, claims for contribution arising from competition claims and proceedings relating to such claims to the extent that—

(a) the claims and proceedings relate to an infringement of competition law that takes place after the coming into force of this section, and

(b) the loss or damage (if any) to which the claims or proceedings relate is suffered after the coming into force of this section.

(4) For the purposes of subsection (3), where an infringement of competition law takes place over a period of two or more days it is to be taken to have taken place on the first of those days.

(5) Terms used in subsection (3) and in Schedule 8A to CA 1998 have the same meaning in subsection (3) as they do in that Schedule (see Part 1 of that Schedule).

Chapter 2 — Mergers

Relevant merger situations and special merger situations

127

Schedule 4 makes provision amending the thresholds in Part 3 of EA 2002 (mergers) for the creation of relevant merger situations and special merger situations.

Fast-track references under sections 22 and 33 of EA 2002

128

Schedule 5 makes provision amending Part 3 of EA 2002 (mergers) to include provision about the making of fast-track references under section 22 or 33 of that Act.

Mergers of energy network enterprises

129

Schedule 6 makes provision amending Part 3 of EA 2002 (mergers) and Schedule 16 to the Energy Act 2023 (mergers of energy network enterprises) in relation to mergers involving energy network enterprises.

Mergers involving newspaper enterprises and foreign powers

130

(1) Schedule 7 makes provision for the purposes of preventing foreign powers from gaining control or influence over newspaper enterprises.

(2) The amendments made by that Schedule—

(a) apply in relation to enterprises ceasing to be distinct on or after the effective date, but not in relation to enterprises ceasing to be distinct before the effective date;

(b) apply in relation to arrangements in progress or in contemplation on or after the effective date which, if carried into effect, would result in the creation of a foreign state newspaper merger situation by virtue of enterprises ceasing to be distinct on or after the effective date.

(3) In subsection (2), “the effective date” means 13 March 2024.

Mutual agreements to extend time-limits: duty to make reference cases

131

(1) Chapter 1 of Part 3 of EA 2002 (mergers: duty to make references) is amended as follows.

(2) In section 39 (time-limits for investigations and reports)—

(a) before subsection (3) insert—

(2A) Where the CMA and the persons carrying on the enterprises concerned agree— (a) that the period within which a report under section 38 is to be prepared and published (the “original period”) should be extended, and (b) the duration of the period by which the original period should be extended (the “extension period”), the CMA may extend the original period by the extension period.

;

(b) in subsection (7), after “subsection” insert “(2A),”;

(7A) An extension under subsection (2A) continues in force until— (a) the end of the extension period, or (b) an earlier time if, before the end of that period— (i) the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time, and (ii) the CMA publishes its decision to cancel the extension with effect from that time.

(3) In section 40 (section 39: supplementary)—

(a) for subsection (3) substitute—

(3) A period extended under any subsection of section 39 may also be extended under any other subsection of that section.

;

(b) in subsection (5), for “section 39(3)” substitute “section 39(2A), (3)”.

(4) In Chapter 5 of Part 3 (mergers: supplementary), in section 107(2) (further publicity requirements), in paragraph (d), for “section 39(8)(b)” substitute “section 39(7A)(b) or (8)(b)”.

Mutual agreements to extend time-limits: public interest cases

132

(1) Chapter 2 of Part 3 of EA 2002 (mergers: public interest cases) is amended as follows.

(2) In section 51 (time-limits for investigations and reports by CMA)—

(a) before subsection (3) insert—

(2A) Where — (a) the CMA and the persons carrying on the enterprises concerned agree— (i) that the period within which a report under section 50 is to be prepared and published (the “original period”) should be extended, and (ii) the duration of the period by which the original period should be extended (the “extension period”), and (b) the Secretary of State consents to the original period being extended by the extension period, the CMA may extend the original period by the extension period.

;

(b) in subsection (7), after “subsection” insert “(2A),”;

(7A) An extension under subsection (2A) continues in force until— (a) the end of the extension period, or (b) an earlier time if, before the end of that period— (i) the CMA and the persons carrying on the enterprises concerned agree that the extension should be cancelled with effect from the earlier time, (ii) the Secretary of State consents to the cancellation of the extension with effect from that time, and (iii) the CMA publishes its decision to cancel the extension with effect from that time.

(3) In section 52 (section 51: supplementary)—

(a) for subsection (3) substitute—

(3) A period extended under any subsection of section 51 may also be extended under any other subsection of that section.

;

(b) in subsection (5), for “section 51(3)” substitute “section 51(2A), (3)”.

(4) In Chapter 5 of Part 3 (mergers: supplementary), in section 107(2)(j), for “section 51(8)(b)” substitute “section 51(7A)(b) or (8)(b)”.

Publication of merger notices online

133

In Chapter 5 of Part 3 of EA 2002 (mergers: supplementary), in section 96(5) (merger notices), for “in the London, Edinburgh and Belfast Gazettes” substitute “online”.

Chapter 3 — Markets

Market studies: removal of time-limit on pre-reference consultation

134

(1) Chapter 1 of Part 4 of EA 2002 (market studies and market investigations: references) is amended as follows.

(2) In section 131B (market studies and the making of decisions to refer: time-limits) omit subsections (1) to (3).

(3) In section 131C (time-limits under section 131B: supplementary)—

(a) in subsection (1) omit paragraph (a);

(b) in subsection (2) omit paragraph (a) and the “or” after it.

Power to make a reference after previously deciding not to do so

135

(1) Section 131B of EA 2002 (market studies and the making of decisions to refer: time limits) is amended as follows.

(2) In the heading, after “time-limits” insert “etc”.

(3) In subsection (7), for “This section is” substitute “Subsections (4) to (6) are”.

(4) After subsection (7) insert—

(8) Where the CMA— (a) has published a market study notice, and (b) has decided not to make a reference under section 131 in relation to the matter specified in the notice, the CMA may subsequently make a reference under section 131 in relation to the matter (without first publishing a market study notice in relation to the matter) only where subsection (9) applies. (9) This subsection applies where— (a) the reference under section 131 is made two years or more after the publication of the market study report in relation to the market study notice, or (b) there has been a material change in circumstances since the preparation of the report.

Scope of market investigations

136

(1) Chapter 1 of Part 4 of EA 2002 (market studies and market investigations: references) is amended as follows.

(2) In section 133 (contents of market investigation references)—

(a) after subsection (1) insert—

(1A) A market investigation reference may be framed so as to require the group constituted by the chair of the CMA in respect of the reference to confine its investigation into the effects of features of markets in the United Kingdom for goods or services of a description specified in the reference to the effects of particular features of such markets. (1B) For the purposes of subsection (1A), “particular features” means features specified in the reference.

;

(b) in subsection (2), for the words before paragraph (a) substitute “For the purposes of subsection (1A), a reference may (for example) specify or describe features that exist in connection with—”.

(3) In section 134 (questions to be decided on market investigation references)—

(a) in subsection (1), for “feature, or combination of features,” substitute “relevant feature”;

(b) in subsection (2), for “feature, or combination of features,” substitute “relevant feature”;

(2B) In subsections (1) and (2), “relevant feature” means— (a) any feature of a relevant market which is not excluded from investigation by virtue of section 133(1A), or (b) a combination of such features.

;

(d) in subsection (7), after “features” insert “concerned”.

Acceptance of undertakings at any stage of a market study or investigation

137

Schedule 8 makes provision allowing the CMA to accept undertakings under Part 4 of EA 2002 (market studies and market investigations) at any stage during a market study or investigation.

Final undertakings and orders: power to conduct trials

138

(1) Schedule 9 makes provision amending Part 4 of EA 2002 allowing the CMA or the Secretary of State to conduct trials to assess the likely effectiveness of final undertakings and orders that the CMA or the Secretary of State is minded to accept or impose under that Part.

(2) The Secretary of State may by regulations amend—

(a) any sectoral enactment, or

(b) section 168 of EA 2002 (regulated markets),

in connection with provision made by Schedule 9.

(3) The power to make regulations under subsection (2) includes power to make provision for the CMA or Secretary of State to be able to modify, or request that another person modifies, any agreement, arrangement, condition, licence, statement (or anything of a similar nature) in connection with an implementation trial measure (within the meaning of Part 4 of EA 2002, as amended by Schedule 9).

(4) But so far as the power to make regulations under subsection (2) is exercised to amend a sectoral enactment that is mentioned in section 168 of EA 2002 (regulated markets), the power may only make provision in connection with a relevant action mentioned in subsection (3) of that section.

(5) For the purposes of this section the sectoral enactments are—

(a) the Civil Aviation Act 2012;

(b) the Health and Social Care Act 2012;

(d) the Chiropractors Act 1994;

(e) the Railways Act 1993;

(f) the Osteopaths Act 1993;

(g) the Water Industry Act 1991;

(h) the Broadcasting Act 1990;

(i) the Electricity Act 1989;

(j) the Copyright, Designs and Patents Act 1988;

(k) the Gas Act 1986;

(l) the Patents Act 1977;

(m) the Registered Designs Act 1949;

(n) the Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21));

(o) the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

(p) the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)).

(6) The Secretary of State must, before making regulations under subsection (2) that—

(a) amend a sectoral enactment, consult the relevant sectoral authority;

(b) amend section 168 of EA 2002, consult any relevant sectoral authority whom the Secretary of State considers is likely to have an interest in the amendment.

(7) For the purposes of subsection (6) the relevant sectoral authorities are—

(a) in relation to the Civil Aviation Act 2012, the Civil Aviation Authority;

(b) in relation to the Health and Social Care Act 2012, NHS England;

(d) in relation to the Chiropractors Act 1994, the General Chiropractic Council;

(e) in relation to the Railways Act 1993, the Office of Rail and Road;

(f) in relation to the Osteopaths Act 1993, the General Osteopathic Council;

(g) in relation to the Water Industry Act 1991, the Water Services Regulation Authority;

(h) in relation to the Broadcasting Act 1990, the Office of Communications;

(i) in relation to the Electricity Act 1989 and the Gas Act 1986, the Gas and Electricity Markets Authority;

(j) in relation to the Copyright, Designs and Patents Act 1988, the Patents Act 1977 and the Registered Designs Act 1949, the Comptroller-General of Patents, Designs and Trade Marks;

(k) in relation to the Water and Sewerage Services (Northern Ireland) Order 2006, the Gas (Northern Ireland) Order 1996 and the Electricity (Northern Ireland) Order 1992, the Northern Ireland Authority for Utility Regulation.

(8) The Secretary of State may by regulations—

(a) amend subsection (5) so as to add or remove an enactment;

(b) amend subsection (7) so as to add, vary or remove an entry.

(9) Regulations under this section are subject to the affirmative procedure.

Duty of CMA to monitor undertakings and orders

139

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

(2) In section 161 (final orders: Part 4), in subsection (5)—

(a) after “advises” insert “, in accordance with section 162(3) or section 162A (8),”;

(b) omit “by reason of a change of circumstances”.

(3) In section 162 (duty of CMA to monitor undertakings and orders: Part 4)—

(a) in the heading, after “monitor” insert “the carrying out of”;

(b) omit subsections (5) to (7).

(4) After that section insert—

(162A) (1) The CMA must keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part. (2) The CMA must, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (1). (3) The CMA must— (a) give a copy of any report prepared by it under subsection (2) to the Secretary of State, and (b) publish the report. (4) Subsection (5) applies, in relation to an adverse effect on competition identified in a report mentioned in section 138(1), where— (a) the report was published within the previous 10 years, (b) the CMA last took action in accordance with section 138(2) or subsection (5) of this section no less than two years ago, and (c) the CMA concludes, as a result of a review under subsection (1), that the action mentioned in paragraph (b) has been ineffective for the purposes mentioned in that section. (5) The CMA must take such action as it considers appropriate for the purposes mentioned in section 138(2) in relation to— (a) any possible variation or release by the CMA of an enforcement undertaking accepted by it; (b) any possible new enforcement undertaking to be accepted by the CMA so as to supersede another enforcement undertaking given to it; (c) any possible variation or revocation by the CMA of an enforcement order made by it; (d) any possible enforcement undertaking to be accepted by the CMA instead of an enforcement order made by it, or any possible enforcement order to be made by the CMA instead of an enforcement undertaking accepted by it. (6) Where the CMA decides to take action under subsection (5), the CMA must take the action within the period of six months beginning with the date on which that decision is published under section 172(2)(h). (7) Subsection (8) applies, in relation to an adverse effect on competition or an effect adverse to the public interest identified in a report mentioned in section 146(1) or 146A(1) (as the case may be), where— (a) the report was laid before each House of Parliament in accordance with section 172(10) within the previous 10 years, (b) the Secretary of State last took action in accordance with section 142(2) or 147A(2) (as the case may be) no less than two years ago, and (c) the CMA concludes, as a result of a review under subsection (1), that action taken in accordance with that section has been ineffective for the purposes mentioned in that section. (8) The CMA must give the Secretary of State such advice as it considers appropriate for the purposes mentioned in section 147(2) or 147A(2) (as the case may be) in relation to— (a) any possible variation or release by the Secretary of State of an enforcement undertaking accepted by the Secretary of State; (b) any possible new enforcement undertaking to be accepted by the Secretary of State under that section so as to supersede another enforcement undertaking given to the Secretary of State; (c) any possible variation or revocation by the Secretary of State of an enforcement order made by the Secretary of State; (d) any possible enforcement undertaking to be accepted by the Secretary of State instead of an enforcement order, or any possible enforcement order to be made by the Secretary of State instead of an enforcement undertaking accepted under that section.

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

(6) In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6), in paragraph (a) of the definition of “relevant decision”, after sub-paragraph (iv) (inserted by paragraph 10 (3) of Schedule 9) insert—

(v) to take action under section 162A (5); and

(7) In section 172 (further publicity requirements: Part 4)—

(a) in subsection (2)—

(i) omit the “and” at the end of paragraph (f);

(ii) at the end insert

; and (h) any decision by it to take action under section 162A (5).

;

(b) after subsection (10) insert—

(11) Where the Secretary of State has decided, in accordance with the CMA’s advice under section 162(3) or 162A (8), to accept or release an undertaking under section 159, or to make or revoke an order under section 161, the Secretary of State must, after the acceptance or release of the undertaking or (as the case may be) the making or revocation of the order, lay details of the Secretary of State’s decision and the reasons for it, and the CMA’s advice, before each House of Parliament.

(8) In section 177 (excisions from reports: Part 4)—

(a) in the heading, after “reports” insert “etc”;

(b) in subsection (1)—

(i) the words from “the Secretary of State” to the end become paragraph (a);

(ii) after that paragraph insert

; (b) the Secretary of State is under a duty to lay the CMA’s advice under section 162(3) or 162A(8) before each House of Parliament.

(i) after “report” insert “or advice”;

(ii) after “publication of the matter” insert “, or the inclusion of it in the advice laid before Parliament,”.

Taking action in relation to regulated markets

140

(1) In Chapter 4 of Part 4 of EA 2002 (market studies and market investigations: supplementary), section 168 (regulated markets) is amended as follows.

(2) In subsection (3) omit paragraph (j).

(3) In subsection (4)—

(a) in paragraph (g), for “the duty of the Director General of Electricity Supply for Northern Ireland under article 6 of that Order” substitute “the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 12 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))”;

(b) omit paragraph (l);

(c) in paragraph (m), for “the duties of the Director General of Gas for Northern Ireland under article 5 of that Order” substitute “the objective and duties of the Northern Ireland Authority for Utility Regulation under Article 14 of the Energy (Northern Ireland) Order 2003”;

(d) in paragraph (r), for “Monitor” substitute “NHS England”.

(4) In subsection (5), in paragraph (ia), for “Monitor” substitute “NHS England”.

Chapter 4 — Cartels

Production of information authorised by warrant

141

(1) Section 194 of EA 2002 (power to enter premises under a warrant) is amended as follows.

(2) In subsection (1), in paragraph (a), after “there are on” insert “or accessible from”.

(3) In subsection (2)—

(a) in paragraph (d) omit “and which the named officer considers relates to any matter relevant to the investigation,”;

(b) after that paragraph insert—

(e) to operate any equipment found on the premises for the purposes of producing such information in such a form; (f) 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 (d) and (e)); (g) to take copies of, or seize, anything produced in accordance with paragraph (d) or (e) which the named officer considers relates to any matter relevant to the investigation.

(4) In section 196 of EA 2002 (privileged information etc), after subsection (2) insert—

(2A) Nothing in section 194 authorises an officer to produce or take possession of, or make copies of or take extracts from, anything which, by virtue of subsections (1) or (2), a person could not be required to disclose or produce under section 193 or 194.

Chapter 5 — Miscellaneous

Attendance of witnesses etc

142

(1) Section 26A of CA 1998 (investigations: power to ask questions) is amended as follows.

(2) In subsection (1)—

(a) in the words before paragraph (a) omit “who has a connection with a relevant undertaking”;

(b) in paragraph (a), after “at a place” insert “or in a manner (which may be remote)”.

(3) In subsection (2), for “each” substitute “any”.

(4) For subsection (6) substitute—

(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.

(5) In section 109(1) of EA 2002 (attendance of witnesses and production of documents etc: Part 3), in paragraph (a) for “place” substitute “at a place, or in a manner (which may be remote),”.

(6) In section 174(3) of EA 2002 (attendance of witnesses and production of documents etc: Part 4), in paragraph (a) for “place” substitute “at a place, or in a manner (which may be remote),”.

Civil penalties etc in connection with competition matters

143

(1) Schedule 10 makes provision for, and in connection with, the imposition of civil penalties in relation to investigations under—

(a) Part 1 of CA 1998 (competition);

(b) Parts 3 (mergers) and 4 (market studies and market investigations) of EA 2002.

(2) Schedule 11 makes provision for, and in connection with, the imposition of civil penalties in relation to breaches of—

(a) commitments and directions under Part 1 of CA 1998;

(b) undertakings and orders under Parts 3 and 4 of EA 2002.

(3) Schedule 12 makes provision providing that certain functions being conferred on the CMA by Schedules 10 and 11 are not exercisable concurrently by sectoral regulators.

Service and extra-territoriality of notices under CA 1998 and EA 2002

144

Schedule 13 makes provision about—

(a) the service of documents under Chapter 3 of Part 1 of CA 1998 (investigation and enforcement) and Parts 3 (mergers) and 4 (market studies and market investigations) of EA 2002;

(b) the extra-territorial application of notices under sections 26 and 40ZD of CA 1998 and sections 109(2) and (3) and 174(4) and (5) of EA 2002.

Orders and regulations under CA 1998 and EA 2002

145

Schedule 14 makes provision about the making of orders and regulations under—

(a) CA 1998, and

(b) Parts 3 (mergers) and 4 (market studies and market investigations) of EA 2002.

Meaning of “working day” in Parts 3 and 4 of EA 2002

146

(1) Part 3 of EA 2002 (mergers) is amended as follows.

(2) In Chapter 1 (duty to make references)—

(a) in section 25 (extension of time limits)—

(i) in subsection (1), after “20” insert “working”;

(ii) in subsection (5), in paragraph (b), after “10” insert “working”;

(b) omit section 32 (supplementary provision for the purposes of section 25);

(d) in section 34ZB (extension of time limits) omit subsection (9);

(e) in section 34ZC (sections 34ZA and 34ZB: supplementary) omit subsection (9).

(3) In Chapter 2 (public interest cases)—

(a) in section 54 (decision of Secretary of State in public interest cases)—

(i) in subsection (5), after “30” insert “working”;

(ii) omit subsection (8);

(b) in section 56 (competition cases where intervention on public interest grounds ceases)—

(i) in subsection (4), in paragraph (b), after “20” insert “working”;

(ii) omit subsection (5).

(4) In Chapter 4 (enforcement), in section 73A (time limits for consideration of undertakings) omit subsection (12).

(5) In Chapter 5 (supplementary)—

(a) in section 129(1) (other interpretative provisions), at the appropriate place insert—

“working day” means any day other than— a Saturday or Sunday, or a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

;

(b) in section 130 (index of defined expressions), at the appropriate place insert—

Working day	Section 129(1)

(6) In Part 4 of EA 2002 (market studies and market investigations), in section 151 (public interest intervention cases: interaction with general procedure)—

(a) in subsection (3), after “20” insert “working”;

(b) in subsection (5), after “20” insert “working”;

(d) at the end insert—

(7) In this section, “working day” means any day other than— (a) a Saturday or Sunday, or (b) a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

(7) In regulation 2(1) of the Enterprise Act 2002 (Merger Prenotification) Regulations 2003 (S.I. 2003/1369), for the definition of “working day” substitute—

“working day” means any day other than— a Saturday or Sunday, or a day that is a bank holiday in any part of the United Kingdom under the Banking and Financial Dealings Act 1971.

Part 3 — Enforcement of consumer protection law

Chapter 1 — Overview

Overview

147

(1) This Part confers enforcement powers, and makes provision about other remedies, in connection with infringements of consumer protection law.

(2) Chapter 2 provides for the kinds of infringements in respect of which enforcement powers conferred by Chapter 3 or 4 are available.

(3) Chapter 3—

(a) confers powers on courts to make consumer protection orders, and

(b) provides for the acceptance of undertakings as an alternative to the making of such orders.

(4) Chapter 4 confers powers on the CMA in connection with certain kinds of infringements, including powers of the CMA to impose monetary penalties.

(5) Chapter 5 contains general provisions about monetary penalties imposed under Chapter 3 or 4.

(6) Chapter 6 amends Schedule 5 to CRA 2015 in relation to the giving of information notices.

(7) Chapter 7 contains miscellaneous provisions and Chapter 8 contains interpretative provisions.

Chapter 2 — Relevant infringements

Relevant infringements

148

(1) A commercial practice is a relevant infringement for the purposes of Chapter 3 or 4 if it—

(a) harms the collective interests of consumers,

(b) meets the UK connection condition (see section 149), and

(2) In this Part—

“commercial practice” means an act or omission by a trader relating to the promotion or supply of— the trader’s goods, services or digital content to a consumer, another trader’s goods, services or digital content to a consumer, or a consumer’s goods, services or digital content to the trader or another person;

“consumer” means an individual acting for purposes that are wholly or mainly outside the individual’s business;

“trader” means— a person (“P”) acting for purposes relating to P’s business, or a person acting in the name of, or on behalf of, P for purposes relating to P’s business.

(3) It is immaterial for the purposes of the definition of “commercial practice” in subsection (2) whether the act or omission takes place—

(a) at the time of the promotion or supply in question, or

(b) before or after that time.

(4) It is immaterial for the purposes of the definition of “trader” in subsection (2)—

(a) in relation to paragraph (a) of that definition, whether P is acting personally or through another person acting in P’s name or on P’s behalf;

(b) in relation to paragraph (b) of that definition, whether or not the purposes relating to P’s business are the only or main purposes for which the person is acting.

(5) For the purposes of this Part—

(a) references to consumers include persons who may become consumers in the future;

(b) the collective interests of consumers are capable of being harmed by a single act or omission (as well as by repeated acts or omissions).

The UK connection condition

149

(1) A commercial practice meets the UK connection condition for the purposes of section 148 if at least one of the following conditions is met—

(a) the trader has a place of business in the United Kingdom;

(b) the trader carries on business in the United Kingdom;

(c) the commercial practice occurs in the carrying on of activities by the trader that are, by any means, directed to consumers in the United Kingdom.

(2) It is immaterial for the purposes of subsection (1)(c) whether the activities are carried on in the United Kingdom or elsewhere.

The specified prohibition condition

150

(1) A commercial practice meets the specified prohibition condition for the purposes of section 148 as it applies for the purposes of Chapter 3 if the commercial practice is—

(a) in breach of an enactment listed in Part 1 of Schedule 15 (to the extent specified), or

(b) in breach of an obligation or rule of law listed in Part 2 of that Schedule.

(2) A commercial practice meets the specified prohibition condition for the purposes of section 148 as it applies for the purposes of Chapter 4 if it is in breach of an enactment listed in Schedule 16 (to the extent specified).

(3) In the Table listing enactments in Part 1 of Schedule 15—

(a) the first column lists the enactments;

(b) the corresponding entry in the second column specifies the authorised enforcers in relation to the enactment for the purposes of section 153;

(4) In the Table listing obligations and rules of law in Part 2 of Schedule 15—

(a) the first column describes the obligations or rules of law;

(b) the corresponding entry in the second column specifies the authorised enforcers in relation to the obligation or rule of law for the purposes of section 153.

Chapter 3 — Consumer protection orders and undertakings

Enforcers for purposes of Chapter

Enforcers

151

(1) Each of the following is a public designated enforcer for the purposes of this Chapter—

(a) the CMA;

(b) every local weights and measures authority in Great Britain;

(d) the Civil Aviation Authority;

(e) the Financial Conduct Authority;

(f) the Gas and Electricity Markets Authority;

(g) the Department of Health in Northern Ireland;

(h) the Department for Infrastructure in Northern Ireland;

(i) the Northern Ireland Authority for Utility Regulation;

(j) an enforcement authority within the meaning of section 120(15) of the Communications Act 2003 (regulation of premium rate services);

(k) the Information Commissioner;

(l) the Maritime and Coastguard Agency;

(m) the Office of Communications;

(n) the Office of Rail and Road;

(o) the Office for the Traffic Commissioner;

(p) the Secretary of State;

(q) the Water Services Regulation Authority.

(2) The Consumers’ Association is a private designated enforcer for the purposes of this Chapter.

(3) The Secretary of State may by regulations amend subsection (1) or (2) so as to—

(a) add or remove a person as a public designated enforcer;

(b) add or remove a person as a private designated enforcer;

(4) The power under subsection (3)(a) to add a person as a public designated enforcer is exercisable only if the Secretary of State considers that the person is a public body that has, as one of their purposes, the protection of the collective interests of consumers.

(5) The power under subsection (3)(b) to add a person as a private designated enforcer is exercisable only if the Secretary of State considers that the person—

(a) is not a public body,

(b) satisfies the designation criteria in section 152, and

(6) The power under subsection (3)(a) and (c) to remove a person as a public designated enforcer, or to vary the entry of such a person, does not apply so far as relating to the persons listed in paragraphs (a) to (c) of subsection (1).

(7) Regulations under this section are subject to the affirmative procedure.

Designation criteria

152

(1) These are the designation criteria in respect of a person (“P”) for the purposes of section 151 (5)(b)—

(a) P is constituted, managed and controlled in such a way as to be expected to act independently, impartially and with integrity;

(b) P has established procedures to ensure that any potential conflicts of interest are properly dealt with;

(c) P has demonstrated experience, competence and expertise in promoting or protecting the collective interests of consumers;

(d) P has demonstrated the ability to protect the interests of consumers by promoting high standards of integrity and fair dealing in the conduct of business in relation to consumers;

(e) P has the capability to investigate infringements and carry out enforcement procedures under this Chapter;

(f) P is ready and willing to follow best practice in enforcement;

(g) P is ready and willing to co-operate with other enforcers and relevant persons.

(2) P does not fail to meet the criteria in subsection (1)(a) by reason only of a connection with another person carrying on a business of a kind that could be affected (directly or indirectly) by action taken under this Chapter if—

(a) the other person does not control P, and

(b) the profits of the other person’s business are used for the purposes of furthering the objectives of P.

(3) For the purposes of subsection (1)(g)—

(a) “relevant persons” are any persons responsible for the regulation of matters in respect of which acts or omissions may constitute a relevant infringement;

(b) co-operation includes, in particular—

(i) sharing of information (so far as legally permitted), and

(ii) participating in arrangements to co-ordinate action under this Part.

Applications for enforcement orders and interim enforcement orders

Applications

153

(1) An enforcer may (subject to subsection (2)) apply to the appropriate court for an enforcement order or an interim enforcement order if the enforcer considers that—

(a) a person has engaged in, is engaging in or is likely to engage in a commercial practice which constitutes a relevant infringement, or

(b) a person is an accessory to such a practice.

(2) An enforcer may make an application in respect of a relevant infringement only if—

(a) in the case of a commercial practice in breach of an enactment listed in the first column of the Table in Part 1 of Schedule 15, the enforcer is an authorised enforcer in respect of that enactment in accordance with the second column of that Table;

(b) in the case of a commercial practice in breach of an obligation or rule of law listed in the first column of the Table in Part 2 of Schedule 15, the enforcer is an authorised enforcer in respect of that obligation or rule of law in accordance with the second column of that Table.

(3) An application for an enforcement order or an interim enforcement order—

(a) must be made in respect of the person the enforcer considers falls within subsection (1)(a) or (b) (“the respondent”), and

(b) must (where known) name the respondent.

(4) An application by a public designated enforcer for an enforcement order may, subject to subsection (5), include an application for the respondent to pay a monetary penalty.

(5) In the case of a respondent within subsection (1)(a), an application under subsection (4) may be made only in respect of a commercial practice that the enforcer considers a person has engaged, or is engaging, in (but not in respect of a practice that the enforcer considers a person is likely to engage in).

CMA directions to other enforcers

154

(1) This section applies where it appears to the CMA that another enforcer intends to make an application for an enforcement order or an interim enforcement order.

(2) The CMA may direct that an application for such an order in respect of a particular relevant infringement—

(a) may be made only by the CMA,

(b) may be made only by such other enforcer as may be specified in the direction, or

(3) A direction under subsection (2)—

(a) does not prevent the acceptance of an undertaking under section 163 by the CMA or another enforcer;

(b) does not prevent the CMA from taking such other steps as it considers appropriate for the purpose of securing that the infringement is not committed, continued or repeated.

(4) A direction under subsection (2)(c) may be made—

(a) only in respect of an infringement that is a relevant infringement for the purposes of Chapter 4 (in addition to being a relevant infringement for the purposes of this Chapter), and

(b) only if the CMA is conducting, or proposes to conduct, an investigation under section 180 in relation to that infringement.

(5) A direction under this section may be varied or withdrawn.

(6) The CMA must take such steps as it considers appropriate to bring a direction (or its variation or withdrawal) to the attention of enforcers likely to be affected by it.

Consultation

155

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