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

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Undertakings under section 163: procedural requirements

165

(1) This section applies where an enforcer proposes to—

(a) accept a material variation of an undertaking under section 163, or

(b) release the respondent from any such undertaking,

and the proposed variation or release has not been requested by the respondent.

(2) Before taking the proposed action mentioned in subsection (1) the enforcer must—

(a) give notice to the respondent under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that the enforcer is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(4) If after considering any representations made in accordance with a notice under subsection (3) an enforcer decides to take an action mentioned in subsection (1), the enforcer must give notice to the respondent of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the enforcer considers to be material in any respect.

Consumer protection orders or undertakings to court: further proceedings

166

(1) This section applies if the court—

(a) makes a consumer protection order against a person (“the respondent”) on an application made by an enforcer (“the original application”), or

(b) accepts an undertaking from the respondent under section 156 or 159 on the making of the original application.

(2) References in this Part to a “consumer protection order” are references to—

(a) an enforcement order,

(b) an interim enforcement order,

(d) an interim online interface order.

(3) An application may (subject to subsection (7)) be made to the same court to which the original application was made in respect of a failure to comply with the order or undertaking in question—

(a) by the enforcer that made the original application, or

(b) by any other enforcer other than a private designated enforcer.

(4) An application to the court in respect of a failure to comply with an undertaking may include an application for a consumer protection order of any kind that the enforcer concerned is authorised under this Chapter to apply for.

(5) If on an application under this section the court finds that an undertaking is not being complied with, the court may do either or both of the following—

(a) make a consumer protection order (instead of making any other order it has power to make);

(b) make an order requiring the respondent to pay a monetary penalty.

(6) Where an application is made under subsection (4) for a consumer protection order—

(a) sections 154 and 160 (5) (directions by CMA) and section 155 (consultation) do not apply;

(b) the application may be made only in respect of a commercial practice that the enforcer considers a person has engaged or is engaging in (and not in respect of a practice that a person is likely to engage in);

and the preceding provisions of this Chapter apply subject to this subsection.

(7) An application may not be made under subsection (3) in the case of a failure to comply with an order or undertaking which consists only of a failure to provide information or documents required by the order or undertaking under section 157 (4).

(8) In addition to any right of appeal on a point of law, a person liable to pay a penalty by virtue of an order under subsection (5)(b) may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In connection with orders under subsection (5)(b), see further—

(a) section 168, which provides for the amount of penalties, and

(b) section 203, which provides for information to accompany such orders.

Undertakings to public designated enforcers: further proceedings

167

(1) This section applies where a public designated enforcer accepts an undertaking from a person (“the respondent”) under section 163.

(2) The enforcer may apply to the court in respect of a failure to comply with the undertaking.

(3) An application under subsection (2) may include an application for a consumer protection order of any kind that the enforcer concerned is authorised under this Chapter to apply for.

(4) If the court finds that the undertaking is not being complied with, the court may do either or both of the following—

(a) make a consumer protection order (instead of making any other order it has power to make);

(b) make an order requiring the respondent to pay a monetary penalty.

(5) A requirement under subsection (4)(b) to pay a monetary penalty may be imposed only if the court is satisfied that the respondent’s failure in question is without reasonable excuse.

(6) Where an application is made under subsection (2) for a consumer protection order—

(a) sections 154 and 160 (5) (directions by CMA) and section 155 (consultation) do not apply;

(b) the application may be made only in respect of a commercial practice that the enforcer considers a person has engaged or is engaging in (and not in respect of a practice that a person is likely to engage in);

and the preceding provisions of this Chapter apply subject to this subsection.

(7) An application may not be made under subsection (2) in the case of a failure to comply with an undertaking which consists only of a failure to provide information or documents under section 164 (4).

(8) In addition to any right of appeal on a point of law, a person liable to pay a penalty by virtue of an order under subsection (4)(b) may appeal in respect of—

(a) the decision to impose the penalty, or

(b) the nature or amount of the penalty.

(9) In connection with orders under subsection (4)(b), see further—

(a) section 168, which provides for the amount of penalties, and

(b) section 203, which provides for information to accompany such orders.

Monetary penalties under sections 166 and 167: amount

168

(1) This section applies in relation to a monetary penalty imposed on a person (“the respondent”) by an order made under section 166 or 167.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(3) The penalty must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

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

(a) no account is to be taken of any days before notice of the application under section 166 (3) or 167 (2) was given to the respondent, and

(b) unless the court determines an earlier date, the amount payable ceases to accumulate on the day on which the requirements of the undertaking that the respondent has failed to comply with are complied with.

Notification of CMA

Notification requirements: applications

169

(1) This section applies to an enforcer that is not the CMA.

(2) Before making an application for a consumer protection order the enforcer—

(a) must by notice inform the CMA of its intention to do so, and

(b) may only proceed to make the application after expiry of the minimum period or, if sooner, after the CMA has by notice informed the enforcer that it consents to the making of the application.

(3) The “minimum period” is—

(a) in the case of an enforcement order or an online interface order, 14 days beginning with the day on which the notice under subsection (2)(a) is given;

(b) in the case of an interim enforcement order or an interim online interface order, 7 days beginning with the day on which the notice under subsection (2)(a) is given.

(4) Where an enforcer proceeds to make an application for a consumer protection order, the enforcer must by notice inform the CMA of the result of the application.

(5) Subsection (6) applies where the enforcer makes an application under section 166 in respect of a failure to comply with—

(a) a consumer protection order, or

(b) an undertaking given under section 156 or 159.

(6) The enforcer must by notice inform the CMA of the making of the application and of any order made by the court on the application.

Notification requirements: undertakings

170

(1) This section applies to an enforcer that is not the CMA which accepts an undertaking under section 163.

(2) The enforcer must by notice inform the CMA of—

(a) the terms of the undertaking, and

(b) the identity of the person who gave it.

Notification requirements: proceedings

171

(1) This section applies where a local weights and measures authority in England and Wales intends to start proceedings for an offence under an enactment listed in Part 1 of Schedule 15.

(2) Before starting the proceedings the authority—

(a) must by notice inform the CMA of its intention to do so, and

(b) may only start the proceedings on or after the relevant day.

(3) The “relevant day” is—

(a) the day on which the CMA notifies the authority that the CMA has received the authority’s notice given under subsection (2)(a), or

(b) if sooner, the day beginning 14 days after the day on which that notice was given.

(4) Where the authority starts the proceedings, the authority must by notice inform the CMA of outcome of the proceedings.

(5) A failure of an authority to comply with a requirement under this section does not invalidate any proceedings started by the authority.

Notification requirements: convictions and judgments

172

(1) This section applies where—

(a) a person is convicted of an offence by or before a court in the United Kingdom, or

(b) a judgment is given against a person by a court in civil proceedings in the United Kingdom.

(2) The court may make arrangements to bring the conviction or judgment to the attention of the CMA if it appears to the court—

(a) having regard to the functions of the CMA under this Chapter or Chapter 4, that it is expedient for the conviction or judgment to be brought to the attention of the CMA, and

(b) without such arrangements the conviction or judgment may not be brought to the attention of the CMA.

(3) For the purposes of subsection (2) it is immaterial whether the proceedings have been finally disposed of by the court.

(4) Judgment includes an order or decree (and references to the giving of a judgment are to be construed accordingly).

Jurisdiction etc

Appropriate court

173

(1) This section applies for the purposes of determining the appropriate court in relation to an application for, or the making of, a consumer protection order against a person (“the respondent”) in connection with a relevant infringement.

(2) If the respondent has a place of business in, or carries on business in, a part of the United Kingdom, the appropriate court is—

(a) the High Court or the county court in England and Wales, if the respondent carries on business in England and Wales or has a place of business in England and Wales;

(b) the High Court or a county court in Northern Ireland, if the respondent carries on business in Northern Ireland or has a place of business in Northern Ireland;

(c) the Court of Session or the sheriff, if the respondent carries on business in Scotland or has a place of business in Scotland.

(3) If the respondent does not have a place of business in, and does not carry on business in, any part of the United Kingdom, the appropriate court is—

(a) the High Court or the county court in England and Wales, if a relevant consumer is domiciled in England or Wales;

(b) the High Court or a county court in Northern Ireland, if a relevant consumer is domiciled in Northern Ireland;

(4) References in subsection (3) to a “relevant consumer” are to any consumer—

(a) to or for whom goods, services or digital content are supplied in connection with which the relevant infringement has, or is alleged to have, taken place,

(b) to whom activities are directed the carrying out of which constitutes, or is alleged to constitute, the relevant infringement, or

(c) from whom goods are received in connection with which the relevant infringement has, or is alleged to have, taken place.

(5) Section 41 of the Civil Jurisdiction and Judgments Act 1982 applies for the purposes of determining the part of the United Kingdom in which a relevant consumer is domiciled.

Effect of orders in other parts of the United Kingdom

174

A consumer protection order made in a part of the United Kingdom by a court specified in relation to that part in the second or third column of the Table has effect in another part of the United Kingdom as if made by a court specified in relation to that other part in the same column of the Table—

England and Wales	The High Court	The county court
Scotland	The Court of Session	The sheriff
Northern Ireland	The High Court	A county court.

Evidence

175

(1) Proceedings under this Chapter are civil proceedings for the purposes of—

(a) section 11 of the Civil Evidence Act 1968 (convictions admissible as evidence in civil proceedings);

(b) section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (corresponding provision in Scotland);

(c) section 7 of the Civil Evidence Act (Northern Ireland) 1971 (c.36 (N.I.)) (corresponding provision in Northern Ireland).

(2) In proceedings under this Chapter any finding by a court in civil proceedings that a person has engaged in infringing conduct—

(a) is admissible as evidence that the conduct has occurred;

(b) unless the contrary is proved, is sufficient evidence that the conduct has occurred.

(3) But subsection (2) does not apply to any finding—

(a) which has been reversed on appeal;

(b) which has been varied on appeal so as to negate it.

(4) For the purposes of subsection (2), a person engages in “infringing conduct” if—

(a) the person has engaged in a commercial practice that constitutes a relevant infringement, or

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

Miscellaneous

Interconnected bodies corporate

176

(1) This section applies if—

(a) a court makes a consumer protection order against a body corporate (“the respondent”), and

(b) the interconnection condition applies in relation to the respondent.

(2) The interconnection condition applies in relation to the respondent if—

(a) at the time the order is made the respondent is a member of a group of interconnected bodies corporate,

(b) at any time when the order is in force the respondent becomes a member of a group of interconnected bodies corporate, or

(c) at any time when the order is in force a group of interconnected bodies corporate of which the respondent is a member is increased by the addition of one or more further members.

(3) The order may include provision for the requirements (or any particular requirements) imposed by the order to be binding upon all other members of the group (in addition to the respondent) as if each of them were the respondent.

(4) Provision may be included in an order under subsection (3) only if the court considers it just, reasonable and proportionate to include that provision.

(5) A group of interconnected bodies corporate is a group consisting of two or more bodies corporate all of whom are interconnected with each other.

(6) Any two bodies corporate are interconnected—

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

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

(7) Where an order includes provision under subsection (3), a copy of the order must be given to any other member of the respondent’s group in relation to which the requirements imposed by the order are to be binding.

Enhanced consumer measures: private designated enforcers

177

(1) This section applies where—

(a) an enforcement order is made on the application of a private designated enforcer,

(b) an undertaking is given under section 156 on an application for an enforcement order made by a private designated enforcer, or

(2) The enforcement order or undertaking may include a requirement for the taking of any enhanced consumer measures only if both of the following conditions are met.

(3) The first condition is that the private designated enforcer is specified for the purposes of this section in regulations made by the Secretary of State.

(4) The second condition is that the enhanced consumer measures do not directly benefit the private designated enforcer or an associated undertaking.

(5) Enhanced consumer measures directly benefiting an enforcer or an associated undertaking include (for example) measures which—

(a) require a person to pay money to the enforcer or an associated undertaking;

(b) require a person to participate in a scheme, administered by the enforcer or associated undertaking, that is designed to recommend persons supplying goods, services or digital content to consumers;

(6) An enforcer may be specified in regulations under subsection (3) only if—

(a) the functions of the enforcer under this Chapter have been specified under section 24 of the Legislative and Regulatory Reform Act 2006 (functions to which principles under section 21 and code of practice under section 22 apply), so far as capable of being so specified, and

(b) the Secretary of State is satisfied that to do so is likely to—

(i) improve the availability to consumers of redress for relevant infringements,

(ii) improve the availability to consumers of information which enables them to choose more effectively between persons supplying goods, services or digital content, or

(iii) improve compliance with consumer law.

(7) Subsection (8) applies if—

(a) an enforcer exercises a function in relation to a person by virtue of this section,

(b) the function is a relevant function for the purposes of Part 2 of the Regulatory Enforcement and Sanctions Act 2008 (co-ordination of regulatory enforcement), and

(c) a primary authority (within the meaning of that Part) has given advice or guidance under section 24A(1) or (2) of that Act—

(i) to that person in relation to the function, or

(ii) to other local authorities (within the meaning of that Part) with that function as to how they should exercise it in relation to that person.

(8) The enforcer must have regard to the advice or guidance in exercising the function in relation to that person.

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

(10) In this section “associated undertaking”, in relation to a private designated enforcer, means—

(a) a parent undertaking or subsidiary undertaking of the enforcer, or

(b) a subsidiary undertaking of a parent undertaking of the enforcer,

and for this purpose “parent undertaking” and “subsidiary undertaking” have the meanings given by section 1162 of the Companies Act 2006.

Substantiation of claims

178

(1) This section applies where an application for a consumer protection order is made to a court in respect of a relevant infringement involving a contravention of Chapter 1 of Part 4 (protection from unfair trading).

(2) The court may, for the purpose of considering the application, require a respondent to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of the respondent.

(3) The court may find that a factual claim of a respondent is inaccurate if—

(a) the respondent fails to provide evidence of the accuracy of the claim in response to a requirement imposed under subsection (2), or

(b) the court considers that any such evidence that is provided is inadequate.

(4) In this section “respondent”, in relation to an application for a consumer protection order, means—

(a) where the application is for an enforcement order or an interim enforcement order, the person against whom the order is sought;

(b) where the application is for an online interface order or an interim online interface order, the person against whom the order is sought or another person who is a party to the proceedings.

Crown application

179

(1) Subject to subsection (2), this Chapter binds the Crown.

(2) The Crown is not liable for any monetary penalty imposed by virtue of this Chapter.

Chapter 4 — Direct enforcement powers of CMA

Investigations

Power of CMA to investigate suspected infringements

180

(1) This section applies where the CMA has reasonable grounds for suspecting that—

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

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

(2) The CMA may conduct an investigation into the matter.

(3) Where the CMA conducts an investigation, it may publish a notice which (among other things) may—

(a) state its decision to conduct the investigation,

(b) summarise the matter under investigation (including the industry sectors affected),

(c) identify, so far as possible, the persons under investigation (including whether they are suspected of falling within subsection (1)(a) or (b)), and

(d) indicate the timetable for the conduct of the investigation.

(4) If after giving a notice under subsection (3) the CMA decides to close an investigation, the CMA must publish a notice confirming that the investigation is to be closed.

Infringement notices and penalties

Provisional infringement notice

181

(1) This section applies where—

(a) the CMA has started an investigation under section 180 that is continuing, and

(b) the condition in subsection (2) is met in respect of any person (“the respondent”) who is subject to the investigation.

(2) The condition in this subsection is met in respect of the respondent if the CMA has reasonable grounds to believe that—

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

(b) the respondent is an accessory to such a practice.

(3) The CMA may give to the respondent a notice under this section (a “provisional infringement notice”).

(4) A provisional infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the CMA’s belief that the condition in subsection (2) is met;

(b) set out proposed directions for the purposes of securing that the respondent complies with subsection (5);

(d) specify the means by which, and the time by which, such representations must be made.

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within subsection (2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within subsection (2)(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).

(6) If the proposed directions mentioned in subsection (4)(b) include the taking by the respondent of enhanced consumer measures, the notice must state that fact and include details of the proposed measures to be taken (but section 183 applies in respect of any such proposed measures specified in a provisional infringement notice as that section applies to such measures specified in a final infringement notice).

(7) The means specified under subsection (4)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(8) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 182 (4)(b)), the provisional infringement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty;

(c) any further factors (in addition to those provided under subsection (4)(a)) which the CMA considers may justify the imposition of the proposed penalty and its amount.

Final infringement notice

182

(1) This section applies where—

(a) the CMA has given to the respondent a provisional infringement notice under section 181,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(i) the respondent has engaged, is engaging or is likely to engage in a commercial practice constituting a relevant infringement, or

(ii) the respondent is an accessory to such a practice.

(2) The CMA may give to the respondent a notice under this section (a “final infringement notice”).

(3) In deciding whether to give a final infringement notice the CMA must, in particular, have regard to whether the respondent has previously given an undertaking under this Chapter or Chapter 3 in respect of the acts or omissions in relation to which the final infringement notice would be given.

(4) A final infringement notice may impose on the respondent a requirement to do either or both of the following—

(a) a requirement to comply with such directions as the CMA considers appropriate for or in connection with the purpose of securing that the respondent complies with section 181 (5) (which may include directions to take enhanced consumer measures in accordance with section 183);

(b) subject to subsection (5), a requirement to pay a monetary penalty.

(5) In the case of a respondent within subsection (1)(c)(i), a requirement to pay a monetary penalty may be imposed only if the CMA is satisfied 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 CMA is satisfied that the person is likely to engage in).

(6) The amount of a monetary penalty imposed under subsection (4)(b) 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.

(7) A final infringement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions on account of which the notice is given;

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) if a penalty is imposed by the notice under subsection (4)(b), contain the monetary penalty information (see section 203);

(d) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (c)).

(8) A final infringement notice may require the respondent to publish—

(a) the notice;

(b) a corrective statement.

(9) Publication under subsection (8) must be made in such form and manner, and to such extent, as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

Final infringement notice: directions to take enhanced consumer measures

183

(1) Directions contained in a final infringement notice may include directions requiring the respondent to take such enhanced consumer measures as the CMA considers just and reasonable.

(2) For this purpose, in deciding whether to require the taking of enhanced consumer measures the CMA 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 a final infringement notice to take enhanced consumer measures, the notice may include requirements for the respondent to provide information or documents to the CMA in order that the CMA may determine if the respondent is taking those measures.

(5) Subsection (6) applies if—

(a) a final infringement notice requires the taking of 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 final infringement notice.

Online interface notices

184

(1) This section applies where the CMA is satisfied that a person has engaged, is engaging or is likely to engage in a commercial practice that constitutes a relevant infringement.

(2) The CMA may give a notice under this section (an “online interface notice”) to—

(a) the person that the CMA is satisfied has engaged, is engaging or is likely to engage in the commercial practice constituting the relevant infringement, or

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

(3) A notice under subsection (2)(b) may be given to a person who is outside the United Kingdom 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) An online interface notice may contain whatever directions the CMA considers appropriate for the purpose of requiring the person to whom it is given 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 CMA.

(5) An online interface notice may be given to a person only if the CMA is satisfied that—

(a) there are no other available means under section 162 or under another provision of this Chapter of bringing about the cessation or prohibition of the infringement which, by themselves, would be wholly effective, and

(b) it is necessary for the directions contained in the notice to be given to avoid the risk of serious harm to the collective interests of consumers.

(6) An online interface notice must—

(a) set out the grounds on which it is given;

(b) state that the respondent has the right to appeal against the notice and the main details of that right.

(7) Where an online interface notice is given, the CMA may publish—

(a) the notice, 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.

(8) Publication under subsection (7) must be made in such form and manner as the CMA considers appropriate for the purpose of eliminating any continuing effects of the relevant infringement.

(9) 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.

(10) In subsection (4) “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, the goods, services or digital content that P or another person supplies.

Undertakings

185

(1) This section applies where the CMA—

(a) has started an investigation under section 180 which is continuing, and

(b) has not given a final infringement notice or an online interface notice in relation to the matter under investigation.

(2) The CMA may accept an undertaking under this section in connection with that matter from any person whom the CMA believes—

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

(b) is an accessory to such a practice.

(3) Subsections (1) to (6) of section 164 (inclusion of enhanced consumer measures in undertakings) apply to an undertaking under this section as they apply to an undertaking under section 163 (2).

(4) An undertaking under this section is an undertaking to do one or more of the following—

(a) in the case of an undertaking from a person within subsection (2)(a), not to continue or repeat the infringing practice (where the CMA believes the person has engaged or is engaging in the practice);

(b) in the case of an undertaking from a person within subsection (2)(b), not to consent to or connive in the infringing practice;

(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 person has a special relationship (see section 220).

(5) Where the CMA has accepted from a person an undertaking under this section—

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

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

(6) The powers of the CMA under this section do not limit other powers of the CMA to accept, vary or release undertakings under Chapter 3.

Effect of undertakings under section 185

186

(1) This section applies where the CMA accepts an undertaking from a person under section 185 in connection with a matter that it was investigating under section 180.

(2) The CMA may not give a final infringement notice or an online interface notice to the person in relation to the matter.

(3) Subsection (2) does not prevent the CMA from giving a final infringement notice or an online interface notice to the person—

(a) if and to the extent that the notice relates to anything not addressed by the acceptance of the undertaking mentioned in subsection (1);

(b) if the CMA considers that there has been a material change of circumstances since the undertaking was accepted;

(c) if the CMA has reasonable grounds for suspecting that a person from whom the undertaking was accepted has failed to adhere to one or more of the terms of the undertaking;

(d) if the CMA has reasonable grounds for suspecting that information which led it to accept the undertaking was incomplete, false or misleading in a material way.

(4) If the CMA gives a final infringement notice or an online interface notice by virtue of subsection (3)(b), (c) or (d), the undertaking is to be treated as released as from the date on which the notice is given.

Undertakings under section 185: procedural requirements

187

(1) This section applies where the CMA proposes to—

(a) accept a material variation of an undertaking under section 185, or

(b) release a person from any such undertaking,

and the proposed variation or release has not been requested by the person who gave the undertaking.

(2) Before taking the proposed action mentioned in subsection (1) the CMA must—

(a) give notice to the person under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that the CMA is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(4) If after considering any representations made in accordance with a notice under subsection (3) the CMA decides to take an action mentioned in subsection (1), the CMA must give notice to the person of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the CMA considers to be material in any respect.

Provisional breach of undertakings enforcement notice

188

(1) This section applies where—

(a) the CMA has accepted an undertaking from a person (“the respondent”) under section 185, and

(b) the CMA has reasonable grounds to believe that the respondent has failed to comply with one or more of the terms of the undertaking.

(2) The CMA may give to the respondent a notice under this section (a “provisional breach of undertakings enforcement notice”).

(3) A provisional breach of undertakings enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s alleged acts or omissions giving rise to the belief mentioned in subsection (1)(b);

(b) set out proposed directions for the purpose of securing that the respondent complies with subsection (5);

(d) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) The respondent complies with this subsection by—

(a) in the case of a respondent within section 185 (2)(a), not continuing or repeating the infringing practice (where it is believed that the respondent has engaged or is engaging in that practice);

(b) in the case of a respondent within section 185 (2)(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).

(6) If the CMA is considering the imposition of a monetary penalty on the respondent (see section 189 (3)(b)), the provisional breach of undertakings enforcement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty (including whether the penalty would be a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(c) any further factors (in addition to those provided under subsection (3)(a)) which the CMA considers justify the imposition of the proposed penalty and its amount or amounts.

Final breach of undertakings enforcement notice

189

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of undertakings enforcement notice under section 188,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that the respondent has failed to comply with one or more of the terms of the undertaking.

(2) The CMA may give to the respondent a notice under this section (a “final breach of undertakings enforcement notice”).

(3) A final breach of undertakings enforcement notice may, subject to subsection (4), impose on the respondent a requirement to do either or both of the following—

(a) to comply with such directions as the CMA considers appropriate for the purpose of securing that the respondent complies with section 188 (5);

(b) to pay a monetary penalty in respect of the failure mentioned in subsection (1)(c).

(4) A requirement under subsection (3)(b) to pay a monetary penalty may be imposed only if the CMA is satisfied that the failure in question is without reasonable excuse.

(5) A final breach of undertakings enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the failure mentioned in subsection (1)(c);

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(c) if directions are given under subsection (3)(a), specify the actions to be taken by the respondent in accordance with the directions;

(d) if a penalty is imposed under subsection (3)(b), specify the monetary penalty information (see section 203);

(e) state that the respondent has a right to appeal against the notice and the main details of that right (so far as not stated in accordance with paragraph (d)).

(6) The CMA may publish a final breach of undertakings enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

Monetary penalties under section 189: amount

190

(1) This section applies in relation to a requirement imposed on the respondent to pay a monetary penalty under a final breach of undertakings enforcement notice.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(3) The penalty must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

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

(a) no account is to be taken of any days before the date on which the provisional breach of undertakings enforcement notice was given to the respondent, and

(b) unless the CMA determines an earlier date, the amount payable ceases to accumulate on the day on which the requirements of the final breach of undertakings enforcement notice are complied with.

Directions

Provisional breach of directions enforcement notice

191

(1) This section applies where—

(a) an enforcement direction has been given to a person (“the respondent”), and

(b) the CMA has reasonable grounds to believe that the respondent has without reasonable excuse failed to comply with the direction (fully or to any respect).

(2) The CMA may give to the respondent a notice under this section (a “provisional breach of directions enforcement notice”).

(3) A provisional breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the belief mentioned in subsection (1)(b);

(b) set out proposed directions for the purpose of securing that the respondent complies with the direction;

(d) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(d) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) A provisional breach of directions enforcement notice must also state—

(a) that the CMA is considering imposing a monetary penalty;

(b) the proposed amount of the penalty (including whether the penalty would be a fixed amount, an amount calculated by reference to a daily rate or both a fixed amount and an amount calculated by reference to a daily rate);

(c) any further factors (in addition to those provided under subsection (3)(a)) which the CMA considers justify the imposition of the proposed penalty and its amount or amounts.

(6) In this Chapter “enforcement direction” means a direction given in—

(a) a final infringement notice,

(b) an online interface notice, or

Final breach of directions enforcement notice

192

(1) This section applies where—

(a) the CMA has given to the respondent a provisional breach of directions enforcement notice under section 191 in respect of a suspected failure to comply with an enforcement direction,

(b) the time for the respondent to make representations to the CMA in accordance with that notice has expired, and

(c) after considering such representations (if any), the CMA is satisfied that the respondent has, without reasonable excuse, failed to comply with the direction.

(2) The CMA may give to the respondent a notice under this section (a “final breach of directions enforcement notice”).

(3) A final breach of directions enforcement notice is a notice that imposes on the respondent a requirement to pay a monetary penalty.

(4) A final breach of directions enforcement notice must—

(a) set out the grounds on which it is given, including the respondent’s acts or omissions giving rise to the failure mentioned in subsection (1)(c);

(b) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the giving of the notice;

(5) A final breach of directions enforcement notice may—

(a) vary or revoke the enforcement direction mentioned in subsection (1);

(b) specify such other directions as the CMA considers appropriate for the purpose of securing that the respondent complies with the requirements in respect of which the enforcement direction was given.

(6) Where a final breach of directions enforcement notice includes provision under subsection (5) that varies an enforcement direction or specifies other directions, the notice must (in addition to the requirements under subsection (4)) also state that the respondent has a right to appeal against the notice and the main details of that right.

(7) The CMA may publish a final breach of directions enforcement notice in such manner, and to such extent, as the CMA considers appropriate.

Monetary penalties under section 192: amount

193

(1) This section applies in relation to a requirement imposed on the respondent to pay a monetary penalty under a final breach of directions enforcement notice.

(2) The amount of the penalty must be—

(a) a fixed amount,

(b) an amount calculated by reference to a daily rate, or

(3) The penalty imposed on a person must not exceed—

(a) in the case of a fixed amount, £150,000 or, if higher, 5% of the total value of the turnover (if any) of the respondent;

(b) in the case of an amount calculated by reference to a daily rate, for each day £15,000 or, if higher, 5% of the total value of the daily turnover (if any) of the respondent;

(c) in the case of a fixed amount and an amount calculated by reference to a daily rate, such fixed amount and such amount per day.

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

(a) no account is to be taken of any days before the date on which the provisional breach of directions enforcement notice was given to the respondent, and

(b) unless the CMA determines an earlier date, the amount payable ceases to accumulate on the day on which the relevant directions are fully complied with.

(5) In subsection (4)(b) the “relevant directions” are—

(a) the enforcement direction mentioned in section 192 (1)(a) (if not revoked under section 192 (5)(a));

(b) any further directions specified under section 192 (5)(b).

Powers of court to enforce directions

194

(1) This section applies where the CMA considers that a person (“the respondent”) has failed to comply with—

(a) an enforcement direction, or

(b) a direction given in a final breach of directions enforcement notice under section 192 (5)(b).

(2) The CMA may make an application to the appropriate court under this section.

(3) If on an application under subsection (2) the court finds that the respondent has failed to comply with the direction concerned, the court may make an order imposing such requirements on the respondent as the court considers appropriate for the purpose of remedying the failure.

(4) An order under this section may provide for all of the costs or expenses of, and incidental to, the application for the order to be met by the respondent or any officer of a person that is responsible for the respondent’s failure to comply with the direction.

(5) Nothing in this section limits the powers of the court to make orders under Chapter 3 or otherwise (and an application under this section may be combined with an application under that Chapter for a consumer protection order).

(6) The following provisions of Chapter 3 apply to an order under this section as if the order were a consumer protection order—

(a) section 173 (appropriate court);

(b) section 174 (effect of orders in other parts of the United Kingdom);

Substantiation of claims

195

(1) This section applies where—

(a) the CMA gives a provisional notice under this Chapter to a person (“the respondent”) in respect of a relevant infringement involving a contravention of Chapter 1 of Part 4 (protection from unfair trading), and

(b) the respondent makes representations to the CMA in response to that notice.

(2) The CMA may, for the purpose of considering the representations, require the respondent to provide evidence as to the accuracy of any factual claim made as part of a commercial practice of the respondent.

(3) The CMA may determine that a factual claim of the respondent is inaccurate if—

(a) the respondent fails to provide evidence of the accuracy of the claim in response to a requirement imposed under subsection (2), or

(b) the CMA considers that any such evidence that is provided is inadequate.

(4) In this section “provisional notice” means—

(a) a provisional infringement notice,

(b) a provisional breach of undertakings enforcement notice, or

Variation or revocation of directions

196

(1) This section applies where the CMA proposes to—

(a) make a material variation of an enforcement direction given to a person (“the respondent”), or

(b) revoke any such direction.

(2) Before taking the proposed action mentioned in subsection (1) the CMA must—

(a) give notice to the respondent under subsection (3), and

(b) consider any representations made in accordance with the notice.

(3) A notice under this subsection must state—

(a) the fact that CMA is proposing to act as mentioned in subsection (1),

(b) the reasons for doing so, and

(c) the means by which, and the time by which, representations may be made in relation to the proposed variation or revocation.

(4) If after considering any representations made in accordance with a notice under subsection (3) the CMA decides to take the action mentioned in subsection (1), the CMA must give notice to the respondent of that decision.

(5) The reference in subsection (1)(a) to a material variation is a reference to any variation that the CMA considers to be material in any respect.

(6) In this section “enforcement direction” includes a direction given in a notice under section 192 (5)(b).

False or misleading information

Provisional false information enforcement notice

197

(1) This section applies if—

(a) the CMA has reasonable grounds to believe that a person (“the respondent”) has, without reasonable excuse, provided information to the CMA that is materially false or misleading, and

(b) the information was provided in connection with the carrying out by the CMA of a direct enforcement function.

(2) The CMA may give to the respondent a notice under this section (a “provisional false information enforcement notice”).

(3) A provisional false information enforcement notice must—

(a) set out the grounds on which it is given;

(b) state that the CMA is considering imposing a monetary penalty;

(d) state any further factors (in addition to those provided under paragraph (a)) which the CMA considers justify the imposition of the proposed penalty and its amount;

(e) invite the respondent to make representations to the CMA about the giving of the notice;

(f) specify the means by which, and the time by which, such representations must be made.

(4) The means specified under subsection (3)(f) for making representations must include arrangements for them to be made orally if the respondent chooses to make representations in that way.

(5) In this Part “direct enforcement function” means—

(a) a function of the CMA under this Chapter, or

(b) a function of the CMA under paragraph 16B or 16C of Schedule 5 to CRA 2015.

Final false information enforcement notice

198

(1) This section applies where—

(a) the CMA has given to the respondent a provisional false information enforcement notice under section 197 in connection with the provision of information,

(b) the time for the respondent to make representations to the CMA in accordance with the notice has expired, and

(i) the information mentioned in paragraph (a) is materially false or misleading, and

(ii) the respondent provided the false or misleading information without reasonable excuse.

(2) The CMA may give to the respondent a notice under this section (“a final false information enforcement notice”).

(3) A final false information enforcement notice is a notice that imposes on the respondent a requirement to pay a monetary penalty.

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