Legalize / United Kingdom / Public General Act

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

articles Not indexed

Reform history JSON API

(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

(1) Before making an application for an enforcement order or an interim enforcement order, an enforcer must (subject to subsection (5)) engage in appropriate consultation with the person in respect of whom the order would be made (“the respondent”).

(2) Consultation is “appropriate consultation” for the purposes of subsection (1) if it is carried out for the purposes of—

(a) achieving the cessation of a relevant infringement (in a case where the infringement is occurring) and ensuring it does not recur;

(b) ensuring there is no repetition of a relevant infringement in a case where the infringement has occurred;

(d) ensuring, in the case of consultation carried out by a public designated enforcer, that the respondent is aware that an application for an enforcement order may include an application for the respondent to pay a monetary penalty.

(3) Engagement under subsection (1) must be initiated by the giving of a consultation request to the respondent.

(4) A consultation request must be given by notice in writing.

(5) The requirement to consult under this section does not apply if—

(a) the CMA considers that an application for the order in question should be made without delay, or

(b) it is not reasonably practicable for the enforcer to ascertain the identity and whereabouts of the respondent.

(6) The requirement to consult under this section ceases to apply—

(a) in the case of an application for an enforcement order, at the end of the applicable period;

(b) in the case of an application for an interim enforcement order, at the end of the period of 7 days beginning with the day after the respondent receives a consultation request.

(7) In subsection (6)(a) the “applicable period” means—

(a) in a case where the respondent is a member of, or is represented by, an approved representative body, the period of 28 days beginning with the day after the respondent receives a consultation request;

(b) in any other case, the period of 14 days beginning with the day after the respondent receives a consultation request.

(8) In subsection (7)(a) “approved representative body” means a representative body that operates a consumer code which has been approved by—

(a) a public designated enforcer,

(b) a body which represents a public designated enforcer,

(d) a community interest company whose objects include the approval of consumer codes.

(9) In subsection (8)—

“consumer code” means an agreement or set of rules regulating, with a view to safeguarding or promoting the interests of consumers, the behaviour of traders who— are engaged in commercial practices, and choose to be bound by the agreement or set of rules;

“representative body” means an organisation established to represent the interests of two or more businesses in a particular sector or area.

Powers of court on application under section 153

Enforcement orders and undertakings

156

(1) This section applies if, on an application under section 153 for an enforcement order, the court finds that the person in respect of whom the application is made (“the respondent”)—

(a) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to the infringing practice.

(2) The court may—

(a) make an enforcement order against the respondent, or

(b) accept an undertaking from the respondent given under subsection (5).

(3) In considering whether to make an enforcement order the court must have regard to whether the respondent—

(a) has given an undertaking under section 163 or 185 in respect of the infringing practice, and

(b) if so, whether the respondent has failed to comply with the undertaking.

(4) An enforcement order is an order that—

(a) indicates the nature of the infringing practice, and

(b) directs the respondent to comply with subsection (6).

(5) The respondent gives an undertaking under this subsection by undertaking—

(a) to comply with subsection (6), or

(b) to take steps which the court believes will secure that the respondent complies with subsection (6).

(6) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (1)(a), not continuing or repeating the infringing practice (where it is alleged that the person has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(b), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(7) See also—

(a) section 157 about the inclusion of enhanced consumer measures in an enforcement order or undertaking;

(b) section 158 about the inclusion of a requirement to pay a monetary penalty in an enforcement order.

(8) An enforcement order may require the respondent to publish—

(a) the order;

(b) a corrective statement.

(9) An undertaking under subsection (5) may include a further undertaking by the respondent to publish—

(a) the terms of the undertaking;

(b) a corrective statement.

(10) Publication under subsection (8) or (9)—

(a) must be made in such form and manner, and to such extent, as the court considers appropriate for the purpose of eliminating any continuing effects of the conduct in respect of which the order was made or undertaking given;

(b) is not an enhanced consumer measure for the purposes of this Chapter.

(11) Where the court has accepted from the respondent an undertaking under subsection (5)—

(a) the court may accept from the respondent any variation of the undertaking that the court considers appropriate for meeting the purposes for which the undertaking was given;

(b) the court may release the respondent from the undertaking (whether on its own initiative or at the respondent’s request) if the court considers that the undertaking is no longer necessary to further those purposes.

Enforcement orders and undertakings: enhanced consumer measures

157

(1) An enforcement order or undertaking may include a requirement to take such enhanced consumer measures as the court considers just and reasonable.

(2) For this purpose, the court must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required under an enforcement order or an undertaking to take enhanced consumer measures, the order or undertaking may include requirements for the respondent to provide information or documents to the court in order that the court may determine whether the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) an enforcement order or undertaking includes enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the enforcement order or undertaking.

(7) This section is subject to section 177 (private designated enforcers).

(8) In this section “undertaking” means an undertaking given under section 156 (5).

(9) References in this Part to “enhanced consumer measures” are to be read in accordance with section 221.

Enforcement orders: requirement to pay monetary penalty

158

(1) This section applies where the court makes an enforcement order against the respondent on an application made by a public designated enforcer.

(2) The order may, subject to subsection (3), include a requirement for the respondent to pay a monetary penalty.

(3) In the case of a respondent within section 156 (1)(a), a requirement to pay a monetary penalty may be imposed only if the court finds that the respondent has engaged, or is engaging, in a commercial practice constituting a relevant infringement (and not in respect of a practice that the court finds that the person is likely to engage in).

(4) Where the order includes a requirement under subsection (2), the order, or a notice accompanying service of the order, must set out the monetary penalty information (see section 203).

(5) The amount of a monetary penalty must be a fixed amount not exceeding £300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent.

(6) A monetary penalty may not be imposed on the respondent by virtue of this section in respect of any conduct that constitutes an offence if the respondent has been found guilty of that offence.

(7) The respondent does not commit an offence in relation to any conduct in respect of which a monetary penalty is imposed on the respondent by virtue of this section.

(8) In addition to any right of appeal on a point of law, a person liable to pay a monetary penalty by virtue of this section may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In the application of subsection (4) to Scotland, “service of the order” includes service of an extract order in execution of or diligence on the order.

Interim enforcement orders and undertakings

159

(1) This section applies if—

(a) it is alleged in an application under section 153 for an interim enforcement order that a person (“the respondent”)—

(i) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(ii) is an accessory to the infringing practice,

(b) it appears to the court that if the application had been an application for an enforcement order it would be likely to be granted, and

(2) The court may—

(a) make an interim enforcement order against the respondent, or

(b) accept an undertaking from the respondent to comply with subsection (5) or to take steps which the court believes will secure such compliance.

(3) If no notice of the application has been given to the respondent, the court may proceed under subsection (2)(a) only if it considers it appropriate to make an interim enforcement order without notice.

(4) An interim enforcement order is an order that—

(a) indicates the nature of the infringing practice, and

(b) directs the respondent to comply with subsection (5).

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (1)(a)(i), not continuing or repeating the infringing practice (where it is alleged that the person has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(a)(ii), not consenting to or conniving in the infringing practice;

(c) in either case, not engaging in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not consenting to or conniving in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(6) An application for an interim enforcement order in respect of alleged conduct of the respondent may not be made at any time after—

(a) an application for an enforcement order against the respondent in respect of that conduct is determined, or

(b) a final infringement notice in respect of that conduct has been given to the respondent (see section 182).

(7) An application for an interim enforcement order must—

(a) include all information known to the applicant that is material to the question of whether or not the application is granted;

(b) if made without notice, state why no notice has been given.

(8) The court may vary or discharge an interim enforcement order on the application of the applicant or the respondent.

(9) An interim enforcement order made in respect of conduct of the respondent is discharged—

(a) on the determination of an application for an enforcement order made against the respondent in respect of that conduct, or

(b) on the giving of a final infringement notice to the respondent in respect of that conduct.

Online interface orders and interim online interface orders

Applications

160

(1) A public designated enforcer may apply to the appropriate court for an online interface order, or an interim online interface order, if the enforcer considers that a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement.

(2) An application for an online interface order, or an interim online interface order, may be made in respect of—

(a) the person that the enforcer considers has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement, or

(b) any other person (subject to subsection (3)).

(3) An application under subsection (2)(b) in respect of a person who is outside the United Kingdom may be made only if the person—

(a) is a United Kingdom national,

(b) is an individual who is habitually resident in the United Kingdom,

(d) carries on business in the United Kingdom or by any means directs activities in the course of carrying on a business to consumers in the United Kingdom.

(4) For the purposes of subsection (3)(c), a firm is “established in the United Kingdom” if—

(a) it is incorporated or formed under the law of a part of the United Kingdom, or

(b) it is administered under arrangements governed by the law of a part of the United Kingdom.

(5) Section 154 (CMA directions to other enforcers) applies where it appears to the CMA that another public designated enforcer intends to make an application for an online interface order, or an interim online interface order, as it applies in relation to intended applications for enforcement orders and interim enforcement orders, but for this purpose the reference to such other enforcer in subsection (2)(b) is to be taken as a reference only to such other public designated enforcer.

(6) Nothing in this section or in section 161 or 162 limits other powers under this Chapter to make enforcement orders or interim enforcement orders or to accept undertakings.

Online interface orders

161

(1) The court may make an online interface order on an application under section 160 if the court finds that—

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

(b) there are no other available means under this Chapter of bringing about the cessation or prohibition of the infringement which, by themselves, would be wholly effective, and

(2) An online interface order is an order that directs the person against whom it is made to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the public designated enforcer that applied for the order.

(3) Where an online interface order is made, the public designated enforcer that applied for the order may publish—

(a) the order, and

(b) where known, the identity of the person who has engaged, is engaging or is likely to engage in a commercial practice which constitutes the relevant infringement.

(4) Publication under subsection (3) is to be made in such form and manner as the enforcer considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

(5) In subsection (2) “online interface” means any software, including a website, part of a website, an application or other digital content which—

(a) is operated by a person (“P”) acting for purposes relating to P’s business or by a person acting in the name of, or on behalf of, P, and

(b) is operated for or in connection with the purposes of giving access to, or promoting, goods, services or digital content that P or another person supplies.

Interim online interface orders

162

(1) The court may make an interim online interface order against a person (“the respondent”) on an application under section 160 if—

(a) it is alleged that there has been or is likely to be a relevant infringement,

(b) it appears to the court that if the application had been an application for an online interface order it would be likely to be granted, and

(2) If no notice of the application has been given to the respondent—

(a) the application must state why no notice has been given, and

(b) the court may make the order only if it considers it appropriate for the order to be made without notice.

(3) An interim online interface order is an order that directs the respondent to do, or to co-operate with another person so that person can do, one or more of the following—

(a) remove content from, or modify content on, an online interface;

(b) disable or restrict access to an online interface;

(d) delete a fully qualified domain name and take any steps necessary to facilitate the registration of that domain name by the public designated enforcer that applied for the order.

In this subsection “online interface” has the meaning given by section 161 (5).

(4) An application for an interim online interface order against the respondent may not be made at any time after—

(a) an application for an online interface order against the respondent in respect of the same relevant infringement is determined, or

(b) an online interface notice in respect of the same relevant infringement has been given to the respondent (see section 184).

(5) An application for an interim online interface order must include all information known to the public designated enforcer making the application that is material to the question of whether or not the application is granted.

(6) The court may vary or discharge an interim online interface order on the application of the enforcer that applied for the order or the respondent.

(7) An interim online interface order against the respondent is discharged on the determination of—

(a) an application for an online interface order made against the respondent in respect of the same relevant infringement, or

(b) an online interface notice in respect of the same relevant infringement has been given to the respondent.

Undertakings and further proceedings

Acceptance of undertakings by enforcers

163

(1) This section applies where an enforcer could make an application under section 153 for an enforcement order, or an interim enforcement order, against a person (“the respondent”) whom the enforcer believes—

(a) has engaged, is engaging or is likely to engage in a commercial practice which constitutes a relevant infringement (“the infringing practice”), or

(b) is an accessory to the infringing practice.

(2) The enforcer may accept an undertaking from the respondent to do one or more of the following—

(a) in the case of a respondent within subsection (1)(a), not to continue or repeat the infringing practice (where it is alleged that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (1)(b), not to consent to or connive in the infringing practice;

(c) in either case, not to engage in the infringing practice in the course of the respondent’s business or another business;

(d) in either case, not to consent to or connive in the carrying out of the infringing practice by a body corporate with which the respondent has a special relationship (see section 220).

(3) See also section 164 about the inclusion of enhanced consumer measures in an undertaking under this section.

(4) Where the enforcer accepts an undertaking under subsection (2) the enforcer may publish the undertaking or accept a further undertaking from the respondent to do so.

(5) Publication under subsection (4)—

(a) must be made in such form and manner, and to such an extent, as the enforcer considers appropriate for the purpose of eliminating any continuing effects of the infringing practice;

(b) is not an enhanced consumer measure for the purposes of this Chapter.

(6) Where an enforcer has accepted from the respondent an undertaking under this section—

(a) the enforcer may accept from the respondent any such variation of the undertaking that the enforcer considers appropriate for meeting the purposes for which the undertaking was given;

(b) the enforcer may release the respondent from the undertaking (whether on its own initiative or at the respondent’s request) if the enforcer considers that the undertaking is no longer necessary to meet those purposes.

(7) Each enforcer must keep a record of—

(a) undertakings it has accepted under this section, and

(b) reviews it has carried out into the effectiveness of such undertakings.

(8) In determining for the purposes of subsection (1) whether an enforcer could make an application under section 153, section 169 is to be ignored.

Undertakings under section 163: enhanced consumer measures

164

(1) An undertaking under section 163 (2) may include a requirement to take such enhanced consumer measures as the enforcer accepting the undertaking considers just and reasonable.

(2) For this purpose, the enforcer must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a) the likely benefit of the measures to consumers,

(b) the costs likely to be incurred by the respondent, and

(3) The costs referred to in subsection (2)(b) are—

(a) the cost of the measures, and

(b) the reasonable administrative costs associated with taking the measures.

(4) Where the respondent is required by an undertaking to take enhanced consumer measures, the undertaking may include requirements for the respondent to provide information or documents to the enforcer accepting the undertaking in order that the enforcer may determine if the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) an undertaking under section 163 (2) includes enhanced consumer measures offering compensation, and

(b) a settlement agreement is entered into in connection with the payment of compensation.

(6) A waiver of a person’s rights in the settlement agreement is not valid if it is a waiver of the right to bring civil proceedings in respect of conduct other than conduct which has given rise to the undertaking.

(7) This section is subject to section 177 (private designated enforcers).

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