Legalize / United Kingdom / Public General Act

Enterprise Act 2002

Type Public General Act

Publication 2002-11-07

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(2B) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an undertaking under this section.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) An undertaking under this section—

(a) shall come into force when accepted;

(b) may be varied or superseded by another undertaking; and

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 81 comes into force in relation to that reference.

(8) An undertaking under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.

(9) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

(10) In this section and section 81 “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.

Interim orders

81

(1) Subsections (2) and (2A) apply where a reference has been made under section 22 , 33, 68B or 68C but is not finally determined.

(2) The CMA may by order, for the purpose of preventing pre-emptive action—

(a) prohibit or restrict the doing of things which the CMA considers would constitute pre-emptive action;

(b) impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c) provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d) do anything which may be done by virtue of paragraph 19 of Schedule 8.

(2A) Where the CMA has reasonable grounds for suspecting that pre-emptive action has or may have been taken, it may by order, for the purpose of restoring the position to what it would have been had the action not been taken or otherwise for the purpose of mitigating its effects—

(a) do anything mentioned in subsection (2)(b) to (d);

(b) impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

(2B) A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) An order which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an undertaking under section 80 comes into force in relation to that reference.

(8) An order under this section shall, if it has not previously ceased to be in force, cease to be in force when the reference under section 22 , 33, 68B or 68C is finally determined.

(9) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

Final powers

Final undertakings

82

(1) The CMA may, in accordance with section 41, accept, from such persons as it considers appropriate, undertakings to take action specified or described in the undertakings.

(2) An undertaking under this section—

(a) shall come into force when accepted;

(b) may be varied or superseded by another undertaking; and

(3) An undertaking which is in force under this section in relation to a reference under section 22 , 33, 68B or 68C shall cease to be in force if an order under section 76(1)(b) or 83 comes into force in relation to the subject-matter of the undertaking.

(4) No undertaking shall be accepted under this section in relation to a reference under section 22 , 33, 68B or 68C if an order has been made under—

(a) section 76(1)(b) or 83 in relation to the subject-matter of the undertaking; or

(b) section 84 in relation to that reference.

(5) The CMA shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

Order-making power where final undertakings not fulfilled

83

(1) Subsection (2) applies where the CMA considers that—

(a) an undertaking accepted by it under section 82 has not been, is not being or will not be fulfilled; or

(b) in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the CMA by the person giving the undertaking before the CMA decided to accept the undertaking.

(2) The CMA may, for any of the purposes mentioned in section 41(2), make an order under this section.

(3) Subsections (3) to (5) of section 41 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.

(4) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the CMA considers appropriate.

(5) An order under this section—

(a) shall come into force at such time as is determined by or under the order;

(b) may contain provision which is different from the provision contained in the undertaking concerned; and

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Final orders

84

(1) The CMA may, in accordance with section 41, make an order under this section.

(2) An order under this section may contain—

(a) anything permitted by Schedule 8; and

(b) such supplementary, consequential or incidental provision as the CMA considers appropriate.

(3) An order under this section—

(a) shall come into force at such time as is determined by or under the order; and

(b) may be varied or revoked by another order.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) No order shall be made under this section in relation to a reference under section 22 , 33, 68B or 68C if an undertaking has been accepted under section 82 in relation to that reference.

Public interest and special public interest cases

Enforcement regime for public interest and special public interest cases

85

(1) Schedule 7 (which provides for the enforcement regime in public interest and special public interest cases) shall have effect.

(2) The CMA may advise the Secretary of State or the Chancellor of the Duchy of Lancaster in relation to the taking by either of them of enforcement action under Schedule 7.

Undertakings and orders: general provisions

Enforcement orders: general provisions

86

(1) An enforcement order may extend to a person’s conduct outside the United Kingdom if (and only if) he is—

(a) a United Kingdom national;

(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or

(2) Nothing in an enforcement order shall have effect so as to—

(a) cancel or modify conditions in licences granted—

(i) under a patent granted under the Patents Act 1977 (c. 37) or a European patent (UK) (within the meaning of the Act of 1977); or

(ii) in respect of a design registered under the Registered Designs Act 1949 (c. 88);

by the proprietor of the patent or design; or

(b) require an entry to be made in the register of patents or the register of designs to the effect that licences under such a patent or such a design are to be available as of right.

(3) An enforcement order may prohibit the performance of an agreement already in existence when the order is made.

(4) Schedule 8 (which provides for the contents of certain enforcement orders) shall have effect.

(5) Part 1 of Schedule 9 (which enables certain enforcement orders to modify licence conditions etc. in regulated markets) shall have effect.

(6) In this Part “enforcement order” means an order made under section 70C, 72, 75, 76, 81, 83 or 84 or under paragraph 2, 5, 6, 10 or 11 of Schedule 7.

Delegated power of directions

87

(1) An enforcement order may authorise the person making the order to give directions falling within subsection (2) to—

(a) a person specified in the directions; or

(b) the holder for the time being of an office so specified in any body of persons corporate or unincorporate.

(2) Directions fall within this subsection if they are directions—

(a) to take such action as may be specified or described in the directions for the purpose of carrying out, or ensuring compliance with, the enforcement order concerned; or

(b) to do, or refrain from doing, anything so specified or described which the person might be required by that order to do or refrain from doing.

(3) An enforcement order may authorise the person making the order to vary or revoke any directions so given.

(4) The court may by order require any person who has failed to comply with directions given by virtue of this section to comply with them, or otherwise remedy his failure, within such time as may be specified in the order.

(5) Where the directions related to anything done in the management or administration of a body of persons corporate or unincorporate, the court may by order require the body of persons concerned or any officer of it to comply with the directions, or otherwise remedy the failure to comply with them, within such time as may be specified in the order.

(6) An order under subsection (4) or (5) shall be made on the application of the person authorised by virtue of this section to give the directions concerned.

(7) An order under subsection (4) or (5) may provide for all the costs or expenses of, or incidental to, the application for the order to be met by any person in default or by any officers of a body of persons corporate or unincorporate who are responsible for its default.

(8) In this section “the court” means—

(a) in relation to England and Wales or Northern Ireland, the High Court; and

(b) in relation to Scotland, the Court of Session.

Contents of certain enforcement orders

88

(1) This section applies in relation to any order under section 70C, 75, 83 or 84 or under paragraph 5, 10 or 11 of Schedule 7.

(2) The order or any explanatory material accompanying the order shall state—

(a) the actions that the persons or description of persons to whom the order is addressed must do or (as the case may be) refrain from doing;

(b) the date on which the order comes into force;

(d) the section of this Part under which a review can be sought in relation to the order.

Subject-matter of undertakings

89

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

(1) The provision which may be contained in an enforcement undertaking is not limited to the provision which is permitted by Schedule 8.

(2) In this Part “enforcement undertaking” means an undertaking under section ... 73, 80 or 82 or under paragraph ... 3 or 9 of Schedule 7.

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

Procedural requirements for certain undertakings and orders

90

Schedule 10 (which provides for the procedure for accepting certain enforcement undertakings and making certain enforcement orders and for their termination) shall have effect.

Register of undertakings and orders

91

(1) The CMA shall compile and maintain a register for the purposes of this Part.

(2) The register shall be kept in such form as the CMA considers appropriate.

(3) The CMA shall ensure that the following matters are entered in the register—

(a) the provisions of any enforcement undertaking accepted under this Part;

(b) the provisions of any enforcement order made under this Part;

(d) the details of any consent given by the CMA under section 77(2) or (3) or 78(2) or by the Secretary of State under paragraph 7(2) or (3) or 8(2) of Schedule 7.

(4) The duty in subsection (3) does not extend to anything of which the CMA is unaware.

(5) The Secretary of State shall inform the CMA of any matters which are to be included in the register by virtue of subsection (3) and which relate to enforcement undertakings accepted by the Secretary of State, enforcement orders made by them or consents given by the Secretary of State.

(6) The CMA shall ensure that the contents of the register are available to the public—

(a) during (as a minimum) such hours as may be specified in an order made by the Secretary of State; and

(b) subject to such reasonable fees (if any) as the CMA may determine.

(7) If requested by any person to do so and subject to such reasonable fees (if any) as the CMA may determine, the CMA shall supply the person concerned with a copy (certified to be true) of the register or of an extract from it.

(8) In subsection (5), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

Enforcement functions of CMA

Duty of OFT to monitor undertakings and orders

92

(1) The CMA shall keep under review—

(a) the carrying out of any enforcement undertaking or any enforcement order; and

(b) compliance with the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.

(2) The CMA shall, in particular, from time to time consider—

(a) whether an enforcement undertaking or enforcement order has been or is being complied with;

(b) whether, by reason of any change of circumstances, an enforcement undertaking is no longer appropriate and—

(i) one or more of the parties to it can be released from it; or

(ii) it needs to be varied or to be superseded by a new enforcement undertaking; and

(c) whether, by reason of any change of circumstances, an enforcement order is no longer appropriate and needs to be varied or revoked.

(3) The CMA shall give ... the Secretary of State such advice as it considers appropriate in relation to—

(a) any possible variation or release by ... the Secretary of State of an enforcement undertaking accepted by ... him;

(b) any possible new enforcement undertaking to be accepted by ... the Secretary of State 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;

(e) the enforcement by virtue of section 94(6) to (8) of any enforcement undertaking or enforcement order; or

(f) the enforcement by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.

(4) The CMA shall take such action as it considers appropriate in relation to—

(a) any possible variation or release by it of an enforcement undertaking accepted by it;

(b) any possible new enforcement undertaking to be accepted by it so as to supersede another enforcement undertaking given to it;

(d) any possible enforcement undertaking to be accepted by it instead of an enforcement order or any possible enforcement order to be made by it instead of an enforcement undertaking;

(e) the enforcement by it by virtue of section 94(6) of any enforcement undertaking or enforcement order; or

(f) the enforcement by it by virtue of section 95(4) and (5) of the prohibitions in sections 77(2) and (3) and 78(2) and in paragraphs 7(2) and (3) and 8(2) of Schedule 7.

(5) The CMA shall keep under review the effectiveness of enforcement undertakings accepted under this Part and enforcement orders made under this Part.

(6) The CMA shall, whenever requested to do so by the Secretary of State and otherwise from time to time, prepare a report of its findings under subsection (5).

(7) The CMA shall—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) give a copy of any report prepared by it under subsection (6) to the Secretary of State; and

(8) In this section, “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

Further role of OFT in relation to undertakings and orders

93

(1) Subsections (2) and (3) apply where—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the Secretary of State is considering whether to accept undertakings under paragraph ...3 or 9 of Schedule 7.

(2) The Secretary of State may require the CMA to consult with such persons as the Secretary of State considers appropriate with a view to discovering whether they will offer undertakings which the Secretary of State would be prepared to accept under ... paragraph ... 3 or 9 of Schedule 7.

(3) The Secretary of State may require the CMA to report to the relevant authority on the outcome of the CMA's consultations within such period as the relevant authority may require.

(4) A report under subsection (3) shall, in particular, contain advice from the CMA as to whether any undertakings offered should be accepted by the Secretary of State under ... paragraph ... 3 or 9 of Schedule 7.

(5) The powers conferred on the relevant authority by subsections (1) to (4) are without prejudice to the power of the relevant authority to consult the persons concerned itself.

(6) If asked by the Secretary of State for advice in relation to the taking of enforcement action (whether or not by way of undertaking) in a particular case, the CMA shall give such advice as it considers appropriate.

Other

Rights to enforce undertakings and orders

94

(1) This section applies to any enforcement undertaking or enforcement order.

(2) Any person to whom such an undertaking or order relates shall have a duty to comply with it.

(3) The duty shall be owed to any person who may be affected by a contravention of the undertaking or (as the case may be) order.

(4) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(5) In any proceedings brought under subsection (4) against a person to whom an enforcement undertaking or an enforcement order relates it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the undertaking or (as the case may be) order.

(6) Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the CMA for an injunction or for interdict or for any other appropriate relief or remedy.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Compliance with an undertaking under paragraph ... 3 or 9 of Schedule 7, an order made by the Secretary of State under section 70C(2), paragraph 2 of Schedule 7 or an order under paragraph 5, 6, 10 or 11 of that Schedule, shall also be enforceable by civil proceedings brought by the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

(9) Subsections (6) to (8) shall not prejudice any right that a person may have by virtue of subsection (4) to bring civil proceedings for contravention or apprehended contravention of an enforcement undertaking or an enforcement order.

(10) In subsection (8), “Secretary of State” includes the Chancellor of the Duchy of Lancaster.

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

Rights to enforce statutory restrictions

95

(1) The obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 shall be a duty owed to any person who may be affected by a contravention of the enactment concerned.

(2) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him.

(3) In any proceedings brought under subsection (2) against a person who has an obligation to comply with section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7 it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the enactment concerned.

(4) Compliance with section 77(2) or (3) or 78(2) shall also be enforceable by civil proceedings brought by the CMA or the Commission for an injunction or for interdict or for any other appropriate relief or remedy.

(5) Compliance with paragraph 7(2) or (3) or 8(2) of Schedule 7 shall also be enforceable by civil proceedings brought by the CMA or the Secretary of State for an injunction or for interdict or for any other appropriate relief or remedy.

(6) Subsections (4) and (5) shall not prejudice any right that a person may have by virtue of subsection (2) to bring civil proceedings for contravention or apprehended contravention of section 77(2) or (3) or 78(2) or paragraph 7(2) or (3) or 8(2) of Schedule 7.

Chapter 5 — Supplementary

Merger notices

96

(1) A person authorised to do so by regulations under section 101 may give notice to the CMA of arrangements or proposed arrangements which might have resulted or might result in the creation of a relevant merger situation.

(2) Any such notice (in this Part a “merger notice”)—

(a) shall be in the prescribed form;

(aa) shall contain the prescribed information; and

(b) shall state that the existence of the proposal has been made public.

(2A) Where the CMA is satisfied that a merger notice meets the requirements of subsection (2), it shall give notice to that effect to the person who gave the merger notice.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In this section and sections 99(5)(c) and 100(1)(c) “prescribed” means prescribed by the CMA by notice having effect for the time being and published online.

(6) In this Part “notified arrangements” means arrangements of which notice is given under subsection (1) above or arrangements not differing from them in any material respect.

Period for considering merger notices

97

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

Section 97: supplementary

98

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

Certain functions of OFT and Secretary of State in relation to merger notices

99

(1) The CMA shall, so far as practicable and when the initial period (within the meaning of section 34ZA) begins in relation to the merger notice, take such action as the CMA considers appropriate to bring—

(a) the existence of the proposal;

(b) the fact that the merger notice has been given; and

to the attention of those whom the CMA considers would be affected if the arrangements were carried into effect.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The CMA may, at any time before the end of the initial period (within the meaning of section 34ZA) in relation to a merger notice, reject the notice if—

(a) the CMA suspects that any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading;

(b) the CMA suspects that it is not proposed to carry the notified arrangements into effect; or

(c) any prescribed information is not given in the merger notice or the person who gave the merger notice has failed (with or without a reasonable excuse) to comply with any requirement of a notice under section 109 in relation to the case concerned; ...

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In this section and section 100 “connected person”, in relation to the person who gave a merger notice, means—

(a) any person who, for the purposes of section 127, is associated with him; or

(b) any subsidiary of the person who gave the merger notice or of any person so associated with him.

Exceptions to protection given by merger notices

100

(1) Sections 22(3)(za) and 33(3)(za) do not prevent any reference being made under section 22 , 33, 68B or 68C if—

(a) before the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice, the CMA rejects the notice under section 99(5);

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) is, or ought to be, known to the person who gave the merger notice or any connected person; and

(ii) is material to the notified arrangements;

is not disclosed to the CMA ...;

(d) at any time after the merger notice is given but before the enterprises to which the notified arrangements relate cease to be distinct from each other, any of those enterprises ceases to be distinct from any enterprise other than an enterprise to which those arrangements relate;

(e) the six months beginning with the end of the initial period (within the meaning of section 34ZA) in relation to the merger notice expires without the enterprises to which the notified arrangements relate ceasing to be distinct from each other;

(f) the merger notice is withdrawn; or

(g) any information given in respect of the notified arrangements (whether in the merger notice or otherwise) by the person who gave the notice or any connected person is in any material respect false or misleading.

(2) Subsection (3) applies where—

(a) two or more transactions which have occurred, or, if any arrangements are carried into effect, will occur, may be treated for the purposes of a reference under section 22 , 33, 68B or 68C as having occurred simultaneously on a particular date; and

(b) sections 22(3)(za) and 33(3)(za) do not prevent such a reference in relation to the last of those transactions.

(3) Sections 22(3)(za) and 33(3)(za) do not not prevent such a reference in relation to any of those transactions which actually occurred less than six months before—

(a) that date; or

(b) the actual occurrence of another of those transactions in relation to which such a reference may be made (whether or not by virtue of this subsection).

(4) In determining for the purposes of subsections (2) and (3) the time at which any transaction actually occurred, no account shall be taken of any option or other conditional right until the option is exercised or the condition is satisfied.

(5) In this section references to the enterprises to which the notified arrangements relate are references to those enterprises that would have ceased to be distinct from one another if the arrangements mentioned in the merger notice concerned had been carried into effect at the time when the notice was given.

Merger notices: regulations

101

(1) The Secretary of State may make regulations for the purposes of sections 96 to 100.

(2) The regulations may, in particular—

(a) provide for ... section 100(1)(e) to apply as if any reference to a period of days or months were a reference to a period specified in the regulations for the purposes of the enactment concerned;

(b) provide for the manner in which any merger notice is authorised or required to be rejected or withdrawn, and the time at which any merger notice is to be treated as received or rejected;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to modify sections 97 to 101

102

The Secretary of State may, for the purposes of determining the effect of giving a merger notice and the action which may be or is to be taken by any person in connection with such a notice, by order modify sections 97 to 101.

General duties in relation to references

Duty of expedition in relation to references

103

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In deciding whether to make a reference under section 45 or 62 the Secretary of State shall have regard, with a view to the prevention or removal of uncertainty, to the need for making a decision as soon as reasonably practicable.

Certain duties of relevant authorities to consult

104

(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers is likely to be adverse to the interests of a relevant party.

(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.

(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.

(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to—

(a) any restrictions imposed by any timetable for making the decision; and

(b) any need to keep what is proposed, or the reasons for it, confidential.

(5) The duty under this section shall not apply in relation to the making of any decision so far as particular provision is made elsewhere by virtue of this Part for consultation before the making of that decision.

(6) In this section—

“the relevant authority” means the CMA, the Commission or the Secretary of State;

“relevant decision” means— in the case of the CMA, any decision by the CMA— as to whether to make a reference under section 22(1), 33(1) , 68B or 68C or accept undertakings under section 73 instead of making such a reference; or to vary under section 37 a reference under section 22, 33, 68B or 68C ; or on the questions mentioned in section 35(1) or (3), 36(1) or (2), 47 or 63; ... in the case of the Secretary of State, any decision by the Secretary of State— as to whether to make a reference under section 45 or 62; or to vary under section 49 or (as the case may be) 64 such a reference; and

“relevant party” means any person who appears to the relevant authority to control enterprises which are the subject of the reference or possible reference concerned.

Information and publicity requirements

General information duties of OFT and Commission

105

(1) Where the CMA decides to investigate a matter so as to enable it to decide whether to make a reference under section 22 , 33, 68B or 68C, or so as to make a report under section 44 or 61, it shall, so far as practicable, take such action as it considers appropriate to bring information about the investigation to the attention of those whom it considers might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(1A) Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(2) Subsections (1) and (1A) do not apply in relation to arrangements which might result in the creation of a relevant merger situation if a merger notice has been given in relation to those arrangements under section 96.

(3) The CMA shall give the ... OFCOM—

(a) such information in its possession as ...OFCOM may reasonably require to enable the ...OFCOM to carry out its functions under this Part; and

(b) any other assistance which the ... OFCOM may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of the CMA to give.

(3A) OFCOM shall give the CMA —

(a) such information in their possession as the CMA may reasonably require to enable the CMA to carry out its functions under this Part; and

(b) any other assistance which the CMA may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.

(4) The CMA shall give the OFCOM any information in its possession which has not been requested by the ... OFCOM but which, in the opinion of the CMA, would be appropriate to give to the ... OFCOM for the purpose of assisting it in carrying out its functions under this Part.

(4A) OFCOM shall give the CMA any information in their possession which has not been requested by the CMA but which, in the opinion of OFCOM, would be appropriate to give to the CMA for the purpose of assisting it in carrying out its functions under this Part.

(5) The CMA and OFCOM shall give the Secretary of State—

(a) such information in their possession as the Secretary of State may by direction reasonably require to enable him to carry out his functions under this Part; and

(b) any other assistance which the Secretary of State may by direction reasonably require for the purpose of assisting him in carrying out his functions under this Part and which it is within the power of the CMA or (as the case may be) OFCOM to give.

(6) The CMA and OFCOM shall give the Secretary of State any information in their possession which has not been requested by the Secretary of State but which, in the opinion of the CMA or (as the case may be) OFCOM, would be appropriate to give to the Secretary of State for the purpose of assisting him in carrying out his functions under this Part.

(7) The CMA shall have regard to any information given to it under subsection (3A) or (4A); and the Secretary of State shall have regard to any information given to him under subsection (5) or (6).

(7A) OFCOM shall have regard to any information given to them under subsection (3) or (4); ...

(8) Any direction given under subsection (5)—

(a) shall be in writing; and

(b) may be varied or revoked by a subsequent direction.

Advice and information about references under sections 22 and 33

106

(1) ... The CMA shall prepare and publish general advice and information about—

(a) the making and consideration by it of references under section 22 , 33, 68B or 68C, and

(b) the way in which relevant customer benefits may affect the taking of enforcement action in relation to such references.

(2) The CMA may at any time publish revised, or new, advice or information.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Advice and information published under this section shall be prepared with a view to—

(a) explaining relevant provisions of this Part to persons who are likely to be affected by them; and

(b) indicating how the CMA or (as the case may be) the Commission expects such provisions to operate.

(6) Advice (or information) published by virtue of subsection (1) ... may include advice (or information) about the factors which the CMA may take into account in considering whether, and if so how, to exercise a function conferred by this Part.

(7) Any advice or information published by the CMA under this section shall be published in such manner as the CMA considers appropriate.

(8) In preparing any advice or information under this section, the CMA shall consult such persons as it considers appropriate.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further publicity requirements

107

(1) The CMA shall publish—

(a) any decision made by it that the duty to make a reference under section 22(1), 33(1), 68B or 68C applies and any such reference made by it;

(aa) any decision made by it that the duty to make such a reference does not apply (other than a decision made by virtue of section 33(2)(b) or 68C(2)(a));

(aaa) any decision made by it to accept a fast-track reference request under section 34ZD and the resulting reference made by it;

(ab) any notice given by it as mentioned in paragraph (b) of the definition of “initial period” in section 34ZA(3);

(ac) any extension by it under section 34ZB of the initial period;

(ad) any decision made by it to cancel an extension as mentioned in section 34ZB(7)(b);

(ae) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(af) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ag) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ah) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) any variation made by it under section 37 of a reference under section 22 , 33, 68B or 68C;

(c) such information as it considers appropriate about any decision made by it under section 57(1) to bring a case to the attention of the Secretary of State;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) any enforcement order made by it under section 72 ... or paragraph 2 of Schedule 7;

(ea) any notice given by it under section 73A(2)(b);

(eb) any extension by it under section 73A of the period for considering whether to accept an undertaking under section 73;

(ec) any decision made by it to cancel an extension as mentioned in section 73A(11)(b);

(f) any variation, release or revocation of an order mentioned in paragraph (e)

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .; and

(i) any notice given by it under section 96(2A).

(2) The CMA shall also publish—

(a) any cancellation by it under section 37(1) of a reference under section 33 or 68C;

(b) any decision made by it under section 37(2) to treat a reference under section 22 or 68B as if it had been made under section 33 or 68C or to treat a reference under section 33 or 68C as if it had been made under section 22 or 68B;

(c) any extension by it under section 39 of the period within which a report under section 38 is to be prepared and published;

(d) any decision made by it to cancel an extension as mentioned in section 39(7A)(b) or (8)(b);

(e) any decision made by it under section 41(2) neither to accept an undertaking under section 82 nor to make an order under section 84;

(ea) any extension by it under section 41A of the period within which its duty under section 41(2) is to be discharged;

(eb) any decision made by it to cancel an extension as mentioned in section 41A(7)(b);

(f) any decision made by it that there has been a material change of circumstances as mentioned in subsection (3) of section 41 or there is another special reason as mentioned in that subsection of that section;

(g) any cancellation by it under section 48(1) or 53(1) of a reference under section 45 or any cancellation by it under section 64(1) of a reference under section 62;

(h) any decision made by it under section 49(1) to treat—

(i) a reference made under subsection (2) or (3) of section 45 as if it had been made under subsection (4) or (as the case may be) (5) of that section; or

(ii) a reference made under subsection (4) or (5) of section 45 as if it had been made under subsection (2) or (as the case may be) (3) of that section;

(i) any extension by it under section 51 of the period within which a report under section 50 is to be prepared and published;

(j) any decision made by it under section 51(7A)(b) or (8)(b) to cancel such an extension;

(k) any extension by it under section 51 as applied by section 65(3) of the period within which a report under section 65 is to be prepared and published;

(l) any decision made by it under section 51(8)(b) as applied by section 65(3) to cancel such an extension;

(m) any decision made by it under section 64(2) to treat a reference made under subsection (2) or (3) of section 62 as if it had been made under subsection (3) or (as the case may be) (2) of that section;

(n) any decision made by it as mentioned in section 76(6)(b);

(o) any enforcement order made by it under section 76 or 81;

(p) any enforcement undertaking accepted by it under section 80;

(q) any variation, release or revocation of such an order or undertaking; and

(r) any decision made by it to dispense with the requirements of Schedule 10.

(3) The Secretary of State shall publish—

(a) any intervention notice or special intervention notice given by him;

(b) any report of the CMA under section 44 or 61 which has been received by him;

(ba) any report of OFCOM under section 44A or 61A which has been received by him;

(d) any variation made by him under section 49 of a reference under section 45 or under section 64 of a reference under section 62;

(e) any report of the CMA under section 50 or 65 which has been received by him;

(f) any decision made by him neither to accept an undertaking under paragraph 9 of Schedule 7 nor to make an order under paragraph 11 of that Schedule;

(g) any notice given by him under section 56(1);

(ga) any foreign state intervention notice given by the Secretary of State;

(gb) any report of the CMA under section 70B which the Secretary of State has received;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j) any decision made by him as mentioned in paragraph 6(6)(b) of Schedule 7; and

(k) any decision made by him to dispense with the requirements of Schedule 10.

(4) Where any person is under a duty by virtue of subsection (1), (2) or (3) to publish the result of any action taken by that person or any decision made by that person, the person concerned shall, subject to subsections (5) and (6), also publish that person’s reasons for the action concerned or (as the case may be) the decision concerned.

(5) Such reasons need not, if it is not reasonably practicable to do so, be published at the same time as the result of the action concerned or (as the case may be) as the decision concerned.

(6) Subsections (4) and (5) shall not apply in relation to—

(a) any decision published under subsection (1)(aaa), or

(b) any information published under subsection (1)(c).

(7) The Secretary of State shall publish his reasons for—

(a) any decision made by him under section 54(2) or 66(2); or

(b) any decision to make an order under section 58(3) or vary or revoke such an order.

(8) Such reasons may be published after—

(a) in the case of subsection (7)(a), the publication of the decision concerned; and

(b) in the case of subsection (7)(b), the making of the order or of the variation or revocation;

if it is not reasonably practicable to publish them at the same time as the publication of the decision or (as the case may be) the making of the order or variation or revocation.

(9) The Secretary of State shall publish—

(a) the report of the CMA under section 44 and any report of OFCOM under section 44A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 45 in relation to that matter; and

(b) the report of the CMA under section 50 in relation to a matter no later than publication of his decision under section 54(2) in relation to that matter.

(10) The Secretary of State shall publish—

(a) the report of the CMA under section 61, and any report of OFCOM under section 61A, in relation to a matter no later than publication of his decision as to whether to make a reference under section 62 in relation to that matter; and

(b) the report of the CMA under section 65 in relation to a matter no later than publication of his decision under section 66(2) in relation to that matter.

(11) Where the Secretary of State has decided under section 55(2) or 66(6) to accept an undertaking under paragraph 9 of Schedule 7 or to make an order under paragraph 11 of that Schedule, he shall (after the acceptance of the undertaking or (as the case may be) the making of the order) lay details of his decision and his reasons for it, and the CMA's report under section 50 or (as the case may be) 65, before each House of Parliament

(12) The Secretary of State must publish any report of the CMA under section 70B which the Secretary of State has received within the period of 7 days beginning with the day on which the Secretary of State receives the report.

Defamation

108

For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the CMA, OFCOM or the Secretary of State in the exercise of any of their functions under this Part.

Investigation powers

Attendance of witnesses and production of documents etc.

109

(A1) For the purposes of this section, the permitted purposes are the following—

(a) assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 22 , 33, 68B or 68C;

(b) assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference or possible reference under section 45 or 62 or a foreign state intervention notice under section 70A.

(1) The CMA may, for a permitted purpose, give notice to any person requiring him—

(a) to attend at a time and at a place, or in a manner (which may be remote), specified in the notice; and

(b) to give evidence to the CMA or a person nominated by the CMA for the purpose.

(2) The CMA may, for a permitted purpose, give notice to any person requiring him—

(a) to produce any documents which—

(i) are specified or described in the notice, or fall within a category of document which is specified or described in the notice; and

(ii) are in that person’s custody or under his control; and

(b) to produce them at a time and place so specified and to a person so specified.

(3) The CMA may, for a permitted purpose, give notice to any person who carries on any business requiring him—

(a) to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice; and

(b) to supply it at a time and place, and in a form and manner, so specified and to a person so specified.

(4) A notice under this section shall—

(a) specify the permitted purpose for which the notice is given, including the function or functions in question; and

(b) include information about the possible consequences of not complying with the notice.

(5) The CMA, or any person nominated by it for the purpose, may for a permitted purpose take evidence on oath, and for that purpose may administer oaths.

(6) The person to whom any document is produced in accordance with a notice under this section may, for a permitted purpose, copy the document so produced.

(7) No person shall be required under this section—

(a) to give any evidence or produce any documents which he could not be compelled to give or produce in civil proceedings before the court; or

(b) to supply any information which he could not be compelled to supply in evidence in such proceedings.

(8) No person shall be required, in compliance with a notice under this section, to go more than 10 miles from his place of residence unless his necessary travelling expenses are paid or offered to him.

(8A) In subsection (A1), “enforcement functions” means—

(a) in relation to the CMA—

(i) functions conferred by virtue of section 87 on the CMA by enforcement orders;

(ii) functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

(iii) functions of the CMA under or by virtue of section 75, 76, 83 or 92 in relation to enforcement undertakings or enforcement orders;

(b) in relation to the Secretary of State—

(i) functions conferred by virtue of section 87 on the Secretary of State by enforcement orders;

(ii) functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders;

(iii) functions of the Secretary of State under or by virtue of paragraph 5, 6 or 10 of Schedule 7 in relation to enforcement undertakings or enforcement orders.

(9) Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form.

(10) In this section “the court” means—

(a) in relation to England and Wales or Northern Ireland, the High Court; and

(b) in relation to Scotland, the Court of Session.

Enforcement of powers under section 109: general

110

(1) The CMA may impose a penalty on a person in accordance with section 111 where the CMA considers that—

(a) the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 109;

(b) the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 109(6);

(c) the person has, without reasonable excuse, altered, suppressed or destroyed any document which the person has been required to produce by a notice under section 109.

(1A) The appropriate authority may impose a penalty on a person in accordance with section 111 where the authority considers that—

(a) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to the authority in connection with any of the authority’s functions under this Part;

(b) the person has, without reasonable excuse, supplied information that is false or misleading in a material respect to another person knowing that the information was to be used for the purpose of supplying information to the authority in connection with any function of the authority under this Part.

(1B) In this section, and in sections 111 to 117, “the appropriate authority” means—

(a) the CMA;

(b) the Secretary of State;

(1C) But the appropriate authority may not proceed against a person under this section in relation to an act or omission which constitutes an offence under section 116A or 117 if the person has, by reason of that act or omission, been found guilty of that offence.

(2) The CMA may proceed (whether at the same time or at different times) under subsection (1)(a) and section 39(4) or (as the case may be) 51(4) (including that enactment as applied by section 65(3)) in relation to the same failure.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) In deciding whether and, if so, how to proceed under subsection (1) or (1A)or section 39(4) or 51(4) (including that enactment as applied by section 65(3))—

(a) the CMA must have regard to the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;

(b) OFCOM must have regard to the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.

(10) The reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

Penalties

111

(1) A penalty imposed under section 110(1) or (1A) shall be of such amount as the appropriate authority considers appropriate.

(2) The amount may, in the case of a penalty imposed under section 110(1)(a), be a fixed amount, an amount calculated by reference to a daily rate or a combination of a fixed amount and an amount calculated by reference to a daily rate.

(3) The amount shall, in the case of a penalty imposed under section any of section 110(1)(b), (c) or (1A), be a fixed amount.

(4) A penalty imposed under section 110(1) or (1A) on a person who does not own or control an enterprise must not—

(a) in the case of a fixed amount, exceed £30,000;

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

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

(4A) A penalty imposed under section 110(1) or (1A) on any other person must not—

(a) in the case of a fixed amount, exceed 1% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;

(b) in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the total value of the daily turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person;

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

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

(a) no account shall be taken of any days before the service of the provisional penalty notice under section 112(A1) on the person concerned; and

(b) unless the appropriate authority determines an earlier date (whether before or after the penalty is imposed), the amount payable shall cease to accumulate at the beginning of the earliest of the following days—

(i) the day on which the requirement of the notice concerned under section 109 is satisfied ...;...

(ii) ... the day which is the relevant day in the case in question for the purposes of section 110A.

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

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(8) Before making regulations under subsection (7A) the Secretary of State shall consult the CMA , OFCOM and such other persons as he considers appropriate.

(9) The Secretary of State may by regulations make provision for determining, for the purposes of this section—

(a) when an enterprise is to be treated as being controlled by a person;

(b) the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

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

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

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

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

Penalties: main procedural requirements

112

(A1) Before the appropriate authority imposes a penalty under section 110(1) or (1A), the authority must give the person concerned a provisional penalty notice.

(A2) A provisional penalty notice must—

(a) contain a draft of the final penalty notice the appropriate authority is minded to give to the person under subsection (1),

(b) invite the making of representations by the person to the authority about the proposed final penalty notice, and

(A3) The appropriate authority must have regard to any representations received in accordance with a provisional penalty notice before imposing a penalty under section 110(1) or (1A) (and accordingly may not impose such a penalty before the time for the person concerned to make representations to the authority in accordance with that notice has expired).

(1) As soon as practicable after imposing a penalty under section 110(1) or (1A), the appropriate authority must give the person concerned a final penalty notice.

(2) The final penalty notice shall state—

(a) that the appropriate authority has imposed a penalty on the person concerned;

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

(c) the amount or amounts concerned and, in the case of an amount calculated by reference to a daily rate, the day on which the amount first starts to accumulate and the day or days on which it might cease to accumulate;

(d) the act or omission in question which the appropriate authority considers gave it the power to impose the penalty;

(e) any other facts which the appropriate authority considers justify the imposition of a penalty and the amount or amounts of the penalty;

(f) the manner in which, and place at which, the penalty is required to be paid to the appropriate authority;

(g) the date or dates, no earlier than the end of the relevant period beginning with the date of service of the notice on the person concerned, by which the penalty or (as the case may be) different portions of it are required to be paid;

(h) that the penalty or (as the case may be) different portions of it may be paid earlier than the date or dates by which it or they are required to be paid; and

(i) that the person concerned has the right to apply under subsection (3) below or to appeal under section 114 and the main details of those rights.

(3) The person against whom the penalty was imposed may, within 14 days of the date of service on him of a notice under subsection (1), apply to the appropriate authority for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid.

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

(4) A final penalty notice shall be given by—

(a) serving a copy of the notice on the person on whom the penalty was imposed; and

(b) publishing the notice.

(5) In this section “relevant period” means the period of 28 days mentioned in subsection (3) of section 114 or, if another period is specified by the Secretary of State under that subsection, that period.

Payments and interest by instalments

113

(1) If the whole or any portion of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838 (c. 110).

(2) Where an application has been made under section 112(3), the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with.

(3) If a portion of a penalty has not been paid by the date required for it, the appropriate authority may, where it considers it appropriate to do so, require so much of the penalty as has not already been paid (and is capable of being paid immediately) to be paid immediately.

(4) Any sums received by the appropriate authority in or towards the payment of a penalty, or interest on a penalty, shall be paid into the Consolidated Fund.

Appeals in relation to penalties

114

(1) This section applies if a person on whom a penalty is imposed under section 110(1) or (1A) is aggrieved by—

(a) the imposition or nature of the penalty;

(b) the amount or amounts of the penalty; or

(c) the date by which the penalty is required to be paid or (as the case may be) the different dates by which portions of the penalty are required to be paid.

(2) The person aggrieved may apply to the Competition Appeal Tribunal.

(3) If a copy of the notice under section 112(1) was served on the person on whom the penalty was imposed, the application to the Competition Appeal Tribunal shall, subject to subsection (4), be made within—

(a) the period of 28 days starting with the day on which the copy was served on the person concerned; or

(b) such other period as the Secretary of State may by order specify.

(4) If the application relates to a decision of the appropriate authority on an application by the person on whom the penalty was imposed under section 112(3), the application to the Competition Appeal Tribunal shall be made within—

(a) the period of 28 days starting with the day on which the person concerned is notified of the decision; or

(b) such other period as the Secretary of State may by order specify.

(5) On an application under this section, the Competition Appeal Tribunal may—

(a) quash the penalty;

(b) substitute a penalty of a different nature or of such lesser amount or amounts as the Competition Appeal Tribunal considers appropriate; or

(c) in a case falling within subsection (1)(c), substitute for the date or dates imposed by the appropriate authority an alternative date or dates;

if it considers it appropriate to do so.

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

(6) The Competition Appeal Tribunal shall not substitute a penalty of a different nature under subsection (5)(b) unless it considers that the person on whom the penalty is imposed will, or is likely to, pay less under the substituted penalty than he would have paid under the original penalty.

(7) Where an application has been made under this section—

(a) the penalty shall not be required to be paid until the application has been determined, withdrawn or otherwise dealt with; and

(b) the appropriate authority may agree to reduce the amount or amounts of the penalty in settlement of the application.

(8) Where the Competition Appeal Tribunal substitutes a penalty of a different nature or of a lesser amount or amounts it may require the payment of interest on the substituted penalty at such rate or rates, and from such date or dates, as it considers appropriate.

(9) Where the Competition Appeal Tribunal specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers appropriate.

(10) An appeal lies to the appropriate court—

(a) on a point of law arising from a decision of the Tribunal in proceedings under this section; or

(b) from a decision of the Tribunal in such proceedings as to the amount or amounts of a penalty.

(11) An appeal under subsection (10)—

(a) may be brought by a party to the proceedings before the Tribunal; and

(b) requires the permission of the Tribunal or the appropriate court.

(12) In this section

(a) “the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session.

(b) “the relevant guidance” means—

(i) in the case of a penalty imposed on a person by the CMA, the statement of policy which was most recently published under section 116 at the time when the act or omission concerned occurred;

(ii) in the case of a penalty imposed on a person by OFCOM, the statement of policy which was most recently published under section 392 of the Communications Act 2003 (penalties imposed by OFCOM) at the time when the act or omission concerned occurred.

Recovery of penalties

115

Where a penalty imposed under section 110(1) or (1A), or any portion of such a penalty, has not been paid by the date on which it is required to be paid and—

(a) no application relating to the penalty has been made under section 114 during the period within which such an application may be made, or

(b) any such application which has been made has been determined, withdrawn or otherwise dealt with,

the appropriate authority may recover from the person on whom the penalty was imposed any of the penalty and any interest which has not been paid; and in England and Wales and Northern Ireland such penalty and interest may be recovered as a civil debt due to the appropriate authority.

Statement of policy

116

(1) The CMA must prepare and publish a statement of policy in relation to—

(a) the imposition of penalties under section 110, and

(b) the enforcement of notices under section 109.

(2) The statement shall, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 110(1) or (1A).

(3) The CMA may revise its statement of policy and, where it does so, it shall publish the revised statement.

(4) The CMA shall consult the Secretary of State and such other persons as it considers appropriate when preparing or revising its statement of policy.

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

False or misleading information

117

(1) A person commits an offence if—

(a) he supplies any information to the appropriate authority in connection with any of their functions under this Part;

(b) the information is false or misleading in a material respect; and

(c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

(2) A person commits an offence if he—

(a) supplies any information to another person which he knows to be false or misleading in a material respect; or

(b) recklessly supplies any information to another person which is false or misleading in a material respect;

knowing that the information is to be used for the purpose of supplying information to the appropriate authority in connection with any of their functions under this Part.

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

(3) A person who commits an offence under subsection (1) or (2) shall be liable—

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

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

Reports

Excisions from reports

118

(1) Subsection (2) applies where the Secretary of State is under a duty to publish—

(a) a report of the CMA under section 44 or 61;

(aa) a report of OFCOM under section 44A or 61A;...

(b) a report of the CMA under section 50 or 65 , or

(2) The Secretary of State may exclude a matter from the report concerned if he considers that publication of the matter would be inappropriate.

(3) In deciding what is inappropriate for the purposes of subsection (2) the Secretary of State shall have regard to the considerations mentioned in section 244.

(4) The body which has prepared the report shall advise the Secretary of State as to the matters (if any) which it considers should be excluded by him under subsection (2).

(5) References in sections 38(4) and 107(11) to the giving or laying of a report of the CMA shall be construed as references to the giving or laying of the report as published.

Minority reports of Commission

119

(1) Subsection (2) applies where, on a reference to the CMA under this Part, a member of a group constituted in connection with the reference ..., disagrees with any decisions contained in the report of the CMA under this Part as the decisions of the CMA.

(2) The report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

Miscellaneous

Review of decisions under Part 3

120

(1) Any person aggrieved by a decision mentioned in subsection (1A) may apply to the Competition Appeal Tribunal for a review of that decision.

(1A) The decisions are—

(a) a decision of the CMA, OFCOM or the Secretary of State under this Part in connection with a reference or possible reference in relation to a relevant merger situation or a special merger situation;

(aa) a decision of the CMA or the Secretary of State in connection with a foreign state newspaper merger situation;

(b) a decision of the CMA under this Part in connection with transferred EU merger commitments.

(c) a decision of the CMA or the Secretary of State for the purposes of Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.

(2) For this purpose “decision”—

(a) does not include a decision to impose a penalty under section 94AA(1) or 110(1) or (1A); but

(b) includes a failure to take a decision permitted or required by

(i) this Part in connection with a reference or possible reference or transferred EU merger commitments

(ia) Chapter 3A of this Part;

(ii) Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024 in connection with a request from an overseas regulator (within the meaning of that Chapter) for the CMA to assist the regulator in carrying out functions of the regulator which correspond or are similar to the functions of the CMA under this Part.

(3) Except in so far as a direction to the contrary is given by the Competition Appeal Tribunal, the effect of the decision is not suspended by reason of the making of the application.

(4) In determining such an application the Competition Appeal Tribunal shall apply the same principles as would be applied by a court on an application for judicial review.

(5) The Competition Appeal Tribunal may—

(a) dismiss the application or quash the whole or part of the decision to which it relates; and

(b) where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Competition Appeal Tribunal.

(6) An appeal lies on any point of law arising from a decision of the Competition Appeal Tribunal under this section to the appropriate court.

(7) An appeal under subsection (6) requires the permission of the Tribunal or the appropriate court.

(8) In this section—

“the appropriate court” means the Court of Appeal or, in the case of Tribunal proceedings in Scotland, the Court of Session; and

“Tribunal rules” has the meaning given by section 15(1).

Enforcement orders: general provisions

121

(1) The Secretary of State may by order require the payment to him or the CMA of such fees as may be prescribed by the order in connection with the exercise by the Secretary of State, the CMA and OFCOM of their functions under or by virtue of this Part, . . . and sections 32 to 34 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56).

(2) An order under this section may, in particular, provide for fees to be payable—

(a) in respect of a merger notice; or

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The events that may be specified in an order under this section by virtue of subsection (2)(c) include, in particular—

(a) the decision by the CMA in relation to a possible reference under section 22 , 33, 68B or 68C that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(b) the decision by the Secretary of State in relation to a possible reference under section 45 that it is or may be the case that a relevant merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation;

(i) it is or may be the case that a special merger situation has been created or (as the case may be) that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a special merger situation; and

(ii) one or more than one consideration mentioned in the special intervention notice is relevant to a consideration of the special merger situation concerned; and

(d) the decision by the CMA in relation to a possible reference under section 32 of the Act of 1991 that it is or may be the case that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises or that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) of that section.

(4) An order under this section may, in particular, contain provision—

(a) for ascertaining the persons by whom fees are payable;

(b) specifying whether any fee is payable to the Secretary of State or the CMA;

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . , the value of the turnover of the enterprises concerned;

(d) as to the time when any fee is to be paid; and

(e) for the repayment by the Secretary of State or the CMA of the whole or part of any fee in specified circumstances.

(5) For the purposes of subsection (4)(c)(ii) the turnover of an enterprise shall be determined in accordance with such provisions as may be specified in an order under this section.

(6) Provision made by virtue of subsection (5) may, in particular, include provision—

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

(b) as to the date or dates by reference to which an enterprise’s turnover is to be determined;

(c) restricting the turnover to be taken into consideration to turnover which has a connection of a particular description with the United Kingdom.

(7) An order under this section may, in particular, in connection with provisions of the kind mentioned in subsection (5) make provision enabling the Secretary of State or the CMA to determine matters of a description specified in the order (including any of the matters mentioned in paragraphs (a) to (c) of subsection (6)).

(8) In determining the amount of any fees to be prescribed by an order under this section, the Secretary of State may take into account all costs incurred by him and by the CMA in respect of the exercise by him, the CMA and OFCOM of their respective functions under or by virtue of this Part . . . and sections 32 to 34 of, and Schedule 4ZA to, the Act of 1991.

(9) Fees paid to the Secretary of State or the CMA under this section shall be paid into the Consolidated Fund.

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Primacy of Community law

122

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

123

(1) The Secretary of State may by order amend or replace the conditions which determine for the purposes of this Part whether a relevant merger situation has been created.

(2) The Secretary of State shall not exercise his power under subsection (1)—

(a) to amend or replace the conditions mentioned in paragraphs (a) and (b) of subsection (1) of section 23;

(b) to amend or replace the condition mentioned in paragraph (a) of subsection (2) of that section.

(3) In exercising his power under subsection (1) to amend or replace the condition mentioned in paragraph (b) of subsection (2) of section 23 or any condition which for the time being applies instead of it, the Secretary of State shall, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength which results from the enterprises concerned having ceased to be distinct.

(3A) In exercising the power under subsection (1) to amend or replace the condition mentioned in subsection (4D) or (4E) of section 23 or any condition which for the time being applies instead of it, the Secretary of State must, in particular, have regard to the desirability of ensuring that any amended or new condition continues to operate by reference to the degree of commercial strength that at least one of the enterprises concerned would have had if the enterprises concerned had not ceased to be distinct enterprises.

(4) Before making an order under this section the Secretary of State shall consult the CMA.

(5) An order under this section may provide for the delegation of functions to the decision-making authority.

Other

Orders and regulations under Part 3

124

(1) Any power of the Secretary of State to make an order or regulations under this Part shall be exercisable by statutory instrument.

(2) Any power of the Secretary of State to make an order or regulations under this Part—

(a) may be exercised so as to make different provision for different cases or different purposes; and

(b) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate.

(3) The power of the Secretary of State under section 34, 59(6A) , 70G or 123 (including that power as extended by subsection (2) above) , or paragraph 15 of Schedule 6B, may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(4) The power of the Secretary of State under section 34ZC(6), 40(8), 41B(6), 44(11), 52(8) (including that enactment as applied by section 65(3)), 58(3), ... 73B(6)... or 102 as extended by subsection (2) above may be exercised by modifying any enactment comprised in or made under this Act, or any other enactment.

(5) ... An order made by the Secretary of State under section 28 (including that enactment as applied by section 42(5) and 59(5)), 34ZC(6), 40(8), 41B(6), 52(8) (including that enactment as applied by section 65(3)), 59(6A)(a), 70C, 73B(6) ..., 114(3)(b) or (4)(b) or 121 or Schedule 7 is subject to the negative procedure.

(5A) Regulations made under section 68A, 94AB(9) or 111(9) are subject to the negative procedure.

(6) An order made by the Secretary of State under section 34, 44(11), section 59(6A)(b), ... 102, 123 or 128(6) is subject to the affirmative procedure.

(6A) Regulations made under section 70G, 94AB(7) or 111(7A), or paragraph 15 of Schedule 6B, are subject to the affirmative procedure.

(6B) Any provision that may be made by order or regulations under this Part subject to the negative procedure may instead be made by order or regulations subject to the affirmative procedure.

(7) An order made by the Secretary of State under section 58(3) shall be laid before Parliament after being made and shall cease to have effect unless approved, within the period of 28 days beginning with the day on which it is made, by a resolution of each House of Parliament.

(8) In calculating the period of 28 days mentioned in subsection (7), no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9) If an order made by the Secretary of State ceases to have effect by virtue of subsection (7), any modification made by it of an enactment is repealed (and the previous enactment revived) but without prejudice to the validity of anything done in connection with that modification before the order ceased to have effect and without prejudice to the making of a new order.

(10) If, apart from this subsection, an order made by the Secretary of State under section 58(3) or 70G, or paragraph 15 of Schedule 6B would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it shall proceed in that House as if it were not such an instrument.

(11) Where orders or regulations under this Part are subject to “the affirmative procedure”, the orders or regulations may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

(12) Where orders or regulations under this Act are subject to “the negative procedure”, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.

Offences by bodies corporate

125

(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) a person purporting to act in such a capacity,

he as well as the body corporate commits the offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(3) Where an offence under this Part is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, or to be attributable to any neglect on the part of a partner, he as well as the partnership commits the offence and shall be liable to be proceeded against and punished accordingly.

(4) In subsection (3) “partner” includes a person purporting to act as a partner.

Service of documents

126

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