Prospective

Section 36

Schedule 1U.K.Procedure relating to commitments

Application of ScheduleU.K.

1This Schedule applies for the purposes of Chapters 3 and 4 in relation to—

(a)accepting a commitment,

(b)accepting a variation of a commitment (a “requested variation”), or

(c)releasing an undertaking from the requirement to comply with a commitment.

Procedure for accepting a commitment or requested variationU.K.

2(1)Before accepting a commitment or a requested variation the CMA must—

(a)publish a notice under this paragraph, and

(b)consider any representations made in accordance with the notice and not withdrawn.

(2)The notice must include—

(a)the commitment or requested variation that the CMA proposes to accept,

(b)the conduct requirement or, as the case may be, actual or suspected adverse effect on competition to which the commitment or variation relates,

(c)the CMA’s reasons for its proposed decision, and

(d)the period within which representations may be made in relation to the proposed commitment or requested variation.

3(1)Before accepting a modification of a commitment or requested variation, of which notice has been given under paragraph 2(1), the CMA must—

(a)publish a notice under this paragraph, and

(b)consider any representations made in accordance with the notice and not withdrawn.

(2)The notice must include—

(a)the proposed modifications,

(b)the reasons for them, and

(c)the period within which representations may be made in relation to them.

4The CMA must publish notice of its decision on whether to, and the form in which it will, accept a commitment or a requested variation as soon as reasonably practicable.

5The requirements of paragraphs 2 and 3 do not apply in relation to a proposed modification which the CMA does not consider material.

Procedure for releasing an undertaking from a commitmentU.K.

6(1)Before releasing an undertaking from a commitment the CMA must—

(a)publish a notice under this paragraph, and

(b)consider any representations made in accordance with the notice and not withdrawn.

(2)The notice must include—

(a)that the CMA proposes to release the undertaking from the commitment,

(b)the reasons for the CMA’s proposal, and

(c)the period within which representations may be made in relation to the proposal.

7The CMA must publish a notice of its decision on whether to release an undertaking from a commitment as soon as reasonably practicable.

Prospective

Section 58

Schedule 2U.K.Mergers: holding of interests and rights

Joint interestsU.K.

1If two or more persons each hold an interest or right jointly, each of them is treated as holding that interest or right.

Joint arrangementsU.K.

2(1)If interests or rights held by a person and interests or rights held by another person are the subject of a joint arrangement between those persons, each of them is treated as holding the combined interests or rights of both of them.

(2)A “joint arrangement” is an arrangement between the holders of interests or rights that they will exercise all or substantially all the rights conferred by their respective interests, or their respective rights, jointly in a way that is pre-determined by the arrangement.

Interests held by nomineesU.K.

3An interest held by a person as nominee for another is to be treated as held by the other (and not by the nominee).

Rights treated as held by person who controls their exerciseU.K.

4(1)Where a person controls a right, the right is to be treated as held by that person (and not by the person who in fact holds the right, unless that person also controls it).

(2)A person “controls” a right if, by virtue of any arrangement between that person and others, the right is exercisable only—

(a)by that person,

(b)in accordance with that person’s directions or instructions, or

(c)with that person’s consent or concurrence.

Rights exercisable only in certain circumstances etcU.K.

5(1)Rights that are exercisable by a person only in certain circumstances are to be treated as held by the person only—

(a)when the circumstances have arisen, and for so long as they continue to obtain, or

(b)when the circumstances are within the control of the person.

(2)But rights that are exercisable by an administrator or by creditors while an entity is in relevant insolvency proceedings are not to be regarded as held by the administrator or creditors even while the entity is in those proceedings.

(3)“Relevant insolvency proceedings” means—

(a)administration within the meaning of the Insolvency Act 1986,

(b)administration within the meaning of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), or

(c)proceedings under the insolvency law of another country or territory during which an entity’s assets and affairs are subject to the control or supervision of a third party or creditor.

(4)Rights that are normally exercisable but are temporarily incapable of exercise are not for that reason to be treated as not being held.

Rights attached to shares held by way of securityU.K.

6Rights attached to shares held by way of security provided by a person are to be treated as held by that person—

(a)where apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in accordance with that person’s instructions, and

(b)where the shares are held in connection with the granting of loans as part of normal business activities and apart from the right to exercise them for the purpose of preserving the value of the security, or of realising it, the rights are exercisable only in that person’s interests.

ArrangementsU.K.

7(1)In this Schedule “arrangement” includes—

(a)any scheme, agreement or understanding, whether or not it is legally enforceable, and

(b)any convention, custom or practice of any kind.

(2)But something does not count as an arrangement unless there is at least some degree of stability about it (whether by its nature or terms, the time it has been in existence or otherwise).

Prospective

Section 125

Schedule 3U.K.Power of Competition Appeal Tribunal to grant declaratory relief

1U.K.Chapter 4 of Part 1 of CA 1998 (appeals before the Competition Appeal Tribunal etc) is amended as follows.

2U.K.In the italic heading before section 47A, after “damage” insert “, or for declaratory relief”.

3U.K.In section 47A (proceedings before the Tribunal: claims for damages etc), after subsection (3) insert—

“(3A)This section also applies to a claim for a declaration or, in relation to Scotland, for a declarator which a person may make in respect of an infringement decision or an alleged infringement of the Chapter 1 prohibition or the Chapter 2 prohibition.”

4U.K.After section 47D insert—

“47DAProceedings under section 47A or collective proceedings: declaratory relief

(1)A declaration granted by the Tribunal in proceedings under section 47A or collective proceedings has the same effect as a declaration granted by the High Court.

(2)A declarator granted by the Tribunal in proceedings under section 47A or collective proceedings has the same effect as a declarator granted by the Court of Session.

(3)In deciding whether to grant a declaration in proceedings under section 47A or collective proceedings, the Tribunal must apply the principles that the High Court would apply in deciding whether to grant a declaration.

(4)In deciding whether to grant a declarator in proceedings under section 47A or collective proceedings, the Tribunal must apply the principles that the Court of Session would apply in deciding whether to grant a declarator.

(5)The Tribunal may grant a declaration or declarator in proceedings under section 47A or collective proceedings whether or not any other remedy is claimed.”

5U.K.In the italic heading before section 47F, after “damage” insert “, or for declaratory relief,”.

6(1)Section 47F (further provision about claims in respect of loss or damage before a court or the Tribunal) is amended as follows.U.K.

(2)In the heading, after “damage” insert “, or for declaratory relief,”.

(3)In the text, after “damage” insert “, or for declarations or declarators,”.

7(1)In section 49 (further appeals from the Tribunal), subsection (1A) is amended as follows.U.K.

(2)Omit the “or” at the end of paragraph (a).

(3)After paragraph (b) insert “, or

(c)as to the grant of a declaration or a declarator.”

8(1)Schedule 8A (further provision about claims in respect of loss or damage before a court or the Tribunal) is amended as follows.U.K.

(2)In the heading, after “damage” insert “, or for declaratory relief,”.

(3)In paragraph 2 (competition law etc), for sub-paragraph (2) substitute—

“(2)“Competition claim” means—

(a)a claim in respect of loss or damage arising from an infringement of competition law (whatever the legal basis of the claim) which is made by or on behalf of—

(i)the person who suffered the loss or damage, or

(ii)a person who has acquired that person’s right to make the claim (whether by operation of law or otherwise), or

(b)a claim for a declaration or a declarator in respect of an infringement of competition law.”

(4)In paragraph 9 (burden of proof where an overcharge is passed on to an indirect purchaser), for sub-paragraph (1) substitute—

“(1)Sub-paragraph (2) applies where there is an overcharge as a result of an infringement of competition law and—

(a)a competition claim within paragraph 2(2)(a) is made in respect of loss or damage which—

(i)arises, directly or indirectly, from the overcharge, and

(ii)was suffered by a person who acquired a product or service indirectly from the infringer (“the injured person”), or

(b)a competition claim within paragraph 2(2)(b) is made in respect of the overcharge.”

(5)In paragraph 10 (burden of proof where an underpayment is passed on to an indirect provider), for sub-paragraph (1) substitute—

“(1)Sub-paragraph (2) applies where there is an underpayment as a result of an infringement of competition law and—

(a)a competition claim within paragraph 2(2)(a) is made in respect of loss or damage which—

(i)arises, directly or indirectly, from the underpayment, and

(ii)was suffered by a person who provided a product or service indirectly to the infringer (“the injured person”), or

(b)a competition claim within paragraph 2(2)(b) is made in respect of the underpayment.”

(6)In paragraph 11 (burden of proof where an overcharge or underpayment is passed on by the claimant)—

(a)in sub-paragraph (1), in paragraph (b) omit “loss or damage which arises, directly or indirectly, from”;

(b)in sub-paragraph (3), for “the person who suffered the loss or damage” substitute “a person who suffered loss or damage arising directly or indirectly from the overcharge or underpayment”.

(7)In paragraph 17 (time limits for bringing competition proceedings), in sub-paragraph (2), in paragraph (b), for “the”, in the first place it occurs, substitute “any”.

(8)In paragraph 19 (beginning of limitation or prescriptive period), after sub-paragraph (6) insert—

“(6A)This paragraph applies in respect of a competition claim within paragraph 2(2)(b) as if—

(a)in sub-paragraph (2), paragraph (c) (but not the “, and” at the end of it) were omitted;

(b)in sub-paragraph (3), paragraph (b) (and the “and” before it) were omitted;

(c)sub-paragraph (4) were omitted.”

(9)In paragraph 21 (suspension during investigation by competition authority), in sub-paragraph (1) omit “in respect of loss or damage”.

(10)In paragraph 24 (suspension of prescriptive period during period of disability: Scotland)—

(a)in sub-paragraphs (1) and (2) for “injured person” substitute “relevant person”;

(b)for sub-paragraph (4) substitute—

“(4)In this paragraph, “relevant person” means—

(a)in relation to a competition claim within paragraph 2(2)(a), a person who suffered the loss or damages that is the subject of the claim;

(b)in relation to a competition claim within paragraph 2(2)(b), the pursuer.”

(11)In paragraph 42 (application of Schedule 8A), in sub-paragraph (1), for the words from “the claims and proceedings relate” to the end substitute “—

(a)in respect of competition claims within paragraph 2(2)(a), the claim and proceedings relate to loss or damage suffered on or after 8 March 2017 as a result of an infringement of competition law that takes place on or after that date;

(b)in respect of competition claims within paragraph 2(2)(b), the claim and proceedings relate to an infringement of competition law that takes place on or after 8 March 2017.”

(12)In paragraph 43 (application of Schedule 8A), in the words before paragraph (a), for “the relevant day” substitute “8 March 2017”.

(13)Omit paragraph 44 (definition of “relevant day”).

9U.K.In Schedule 4 to EA 2002 (Competition Appeal Tribunal: procedure), after paragraph 21A insert—

“Declarations and declarators

21BTribunal rules may make provision in relation to the grant of declarations or declarators (including interim declarations or interim declarators) in proceedings under section 47A or 47B of the 1998 Act.”

Prospective

Section 127

Schedule 4U.K.Relevant and special merger situations

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

2(1)Section 23 (relevant merger situations) is amended as follows.U.K.

(2)In subsection (1), in paragraph (b), for “£70 million” substitute “£100 million”.

(3)In subsection (2)—

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

(b)at the end insert “; and

(c)the value of the turnover in the United Kingdom of—

(i)the enterprise being taken over, or

(ii)any other enterprise concerned,

exceeds £10 million.”

(4)Before subsection (3) insert—

“(2B)For the purposes of subsection (2)(c)(ii), any turnover of any other enterprise concerned that is also turnover of the enterprise being taken over is to be ignored.”

(5)Before subsection (5) insert—

“(4C)For the purposes of this Part, a relevant merger situation has also been created if—

(a)two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24; and

(b)each of the conditions mentioned in subsections (4D) to (4F) is satisfied.

(4D)The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, in relation to the supply of goods or services of any description, at least 33 per cent of all the goods or (as the case may be) services of that description which are supplied in the United Kingdom, or in a substantial part of the United Kingdom, would be supplied—

(a)by the person or persons by whom one of the enterprises concerned (“E”) would be carried on, or

(b)to that person or those persons,

in connection with E or any other enterprise concerned with which E is under common ownership or common control.

(4E)The condition mentioned in this subsection is that the total value of the turnover in the United Kingdom of E exceeds £350 million.

(4F)The condition mentioned in this subsection is that, were it not for the enterprises concerned ceasing to be distinct enterprises, an enterprise within subsection (4G) would satisfy one or more of the following additional conditions—

(a)the enterprise would be carried on by a body of persons corporate or unincorporate formed or recognised under the law of any part of the United Kingdom;

(b)the activities, or part of the activities, of the enterprise would be carried on in the United Kingdom;

(c)the person, or persons, by whom the enterprise would be carried on supply goods or services to a person or persons in the United Kingdom in connection with the enterprise.

(4G)The following enterprises are within this subsection—

(a)any enterprise concerned other than—

(i)E, or

(ii)any other enterprise with which E is under common ownership or common control;

(b)any enterprise concerned that, as a result of the enterprises concerned ceasing to be distinct enterprises, a person or group of persons may be treated as having brought under their control by virtue of section 26(4).”

(6)In subsection (5), after “(4)” insert “, or of 33 per cent mentioned in subsection (4D),”.

(7)In subsection (6), for “and (4)” substitute “, (4), (4D) and (4F)(c)”.

3(1)Section 28 (turnover test) is amended as follows.U.K.

(2)In subsection (5)—

(a)in paragraph (a)—

(i)for “sum” substitute “sums”;

(ii)after “section 23(1)(b)” insert “, (2)(c) and (4E)”;

(b)in paragraph (b), for “sum is” substitute “sums are”.

(3)In subsection (6)—

(a)after “section 23(1)(b)” insert “, (2)(c) or (4E)”;

(b)for “the sum” substitute “any of the sums”.

4U.K.In Chapter 2 of Part 3 of EA 2002 (mergers: public interest cases), in section 58A (construction of consideration specified in section 58(2C)), in subsection (1), for “section 58 and this section” substitute “this Part”.

5U.K.Chapter 3 of Part 3 of EA 2002 (mergers: other special cases) is amended as follows.

6(1)Section 59 (intervention by Secretary of State in special public interest cases) is amended as follows.U.K.

(2)For subsections (3) and (3A) substitute—

“(3)For the purposes of this Part, a special merger situation has been created if—

(a)two or more enterprises have ceased to be distinct enterprises at a time or in circumstances falling within section 24;

(b)no relevant merger situation has been created; and

(c)immediately before the enterprises concerned ceased to be distinct, one or more of the conditions mentioned in subsections (3C) to (3F) were satisfied.”

(3)After subsection (3D) insert—

“(3E)The condition mentioned in this subsection is that a relevant merger situation would have been created if, in subsection (1) of section 23—

(a)the “and” at the end of paragraph (a) were omitted;

(b)for paragraph (b) there were substituted—

“(b)one of the enterprises concerned is a media enterprise or a newspaper enterprise; and”;

(c)after that paragraph there were inserted—

“(c)the value of the turnover in the United Kingdom of the enterprise being taken over exceeds £70 million.”

(3F)The condition mentioned in this subsection is that a relevant merger situation would have been created if, for section 23(2)(c), there were substituted—

“(c)one of the enterprises concerned is a media enterprise or a newspaper enterprise.””

(4)In subsection (5), after “deciding” insert “whether two or more enterprises have ceased to be distinct at a time or in circumstances falling within section 24,”

(5)In subsection (6A), for the words from “amend” to the end substitute “—

(a)substitute a new sum for the sum for the time being mentioned in subsection (3E)(c);

(b)amend the conditions mentioned in subsections (3C), (3D), (3E)(b) and (3F).”

7(1)Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows.U.K.

(2)In paragraph 2 (modifications of section 23), in paragraph (a), in the substituted text, for “£70 million” substitute “£100 million”.

(3)In paragraph 3 (modifications of section 28), for paragraphs (b) and (c) substitute—

“(b)in subsection (5)—

(i)in the words before paragraph (a), for “The CMA shall” there were substituted “The CMA and the Gas and Electricity Markets Authority must each”;

(ii)in paragraph (a), for “the sums for the time being mentioned in section 23(1)(b), (2)(c) and (4E)” there were substituted “the sum for the time being mentioned in section 23(1)(b)”;

(iii)in paragraph (b), for “sums are” there were substituted “sum is”;

(c)in subsection (6)—

(i)for “section 23(1)(b), (2)(c) and (4E)” there were substituted “paragraph 2(a) of Schedule 5A”;

(ii)for “sums” there were substituted “sum”.”

8U.K.Chapter 5 of Part 3 of EA 2002 (mergers: supplementary) is amended as follows.

9(1)Section 123 (power to alter share of supply test) is amended as follows.U.K.

(2)In the heading, for “share of supply test” substitute “conditions for a relevant merger situation”.

(3)In subsection (2), at the end insert—

“(c)to amend or replace the condition mentioned in paragraph (a) of subsection (4C) of that section.”

(4)After subsection (3) insert—

“(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.”

10U.K.In section 130 (index of defined expressions), in the appropriate place insert—

Prospective

Section 128

Schedule 5U.K.Mergers: fast-track references under sections 22 and 33 of EA 2002

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

2(1)Section 22 (duty to make references in relation to completed mergers) is amended as follows.U.K.

(2)After subsection (1) insert—

“(1A)The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(2), to accept a fast-track reference request.”

(3)In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

(4)In subsection (3), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

3(1)Section 33 (duty to make references in relation to anticipated mergers) is amended as follows.U.K.

(2)After subsection (1) insert—

“(1A)The CMA must make a reference to its chair for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 if the CMA has decided, under section 34ZF(3), to accept a fast-track reference request.”

(3)In subsection (2), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

(4)In subsection (3), in the words before paragraph (a), for “this section” substitute “subsection (1)”.

4(1)Section 34ZA (time-limits for decisions about references) is amended as follows.U.K.

(2)In subsection (1)—

(a)in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”;

(b)in paragraph (a), for “the section” substitute “the subsection”.

(3)After that subsection insert—

“(1A)In carrying out its function of making a reference under section 22(1A) or 33(1A), the CMA must, within the initial period, inform the persons carrying on the enterprises concerned by notice of the making of the reference.”

(4)In subsection (2), in the words before paragraph (a), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

5U.K.In section 34ZB (extension of time-limits), in subsection (1), for “mentioned in” substitute “for the purposes of”.

6U.K.In section 34ZC (sections 34ZA and 34ZB: supplementary), in subsection (1), for “period mentioned in” substitute “initial period for the purposes of”.

7U.K.After section 34ZC (sections 34ZA and 34ZB: supplementary) insert—

“34ZDFast-track reference requests

(1)Subsection (2) applies where the following conditions are met—

(a)arrangements or proposed arrangements might have resulted or might result in the creation of a relevant merger situation (the “arrangements concerned”),

(b)no reference has been made under section 22 or 33 in respect of the arrangements concerned, and

(c)the CMA has not informed the persons carrying on the enterprises concerned of a decision that the duty to make a reference under section 22(1) or 33(1) does not apply in respect of those arrangements.

(2)The persons carrying on the enterprises concerned may make a fast-track reference request to the CMA at any time before the end of the initial period (whether or not that period has begun).

(3)In this section and in sections 34ZE and 34ZF, “fast-track reference request” means a request that the CMA makes a reference under section 22(1A) or 33(1A) in relation to the arrangements concerned.

34ZEFast-track reference requests: procedure

(1)This section applies where a fast-track reference request is made and not withdrawn.

(2)Where the fast-track reference request is made before the beginning of the initial period, the CMA may, at any time before the beginning of that period, reject the request.

(3)Where the CMA has not rejected the fast-track reference request in accordance with subsection (2), the CMA must, within the decision period, decide whether to accept the request in accordance with section 34ZF or reject the request.

(4)Where the CMA accepts or rejects a fast-track reference request, the CMA must notify the persons carrying on the enterprises concerned that the request has been accepted or rejected.

(5)In this section—

• “decision period” means, in relation to the arrangements concerned—

  (a)

  in a case where the initial period has not begun, that period, or

  (b)

  in a case where the initial period has begun, the period beginning with the day on which the fast-track reference request is made and ending at the end of the initial period;

• “initial period” has the meaning given by section 34ZA(3).

34ZFAcceptance by the CMA of fast-track reference requests

(1)The CMA may accept a fast-track reference request only if the condition in subsection (2) or (3) is met.

(2)The condition in this subsection is that, in relation to the arrangements concerned—

(a)the CMA believes that it is or may be the case that a relevant merger situation has been created, and

(b)the CMA would not be prevented from making a reference under section 22(1) by reason of section 22(3).

(3)The condition in this subsection is that, in relation to the arrangements concerned—

(a)the CMA believes that it is or may be the case that, if carried into effect, the arrangements will result in the creation of a relevant merger situation, and

(b)the CMA would not be prevented from making a reference under section 33(1) by reason of section 33(3).

(4)In deciding whether to accept a fast-track reference request under subsection (2) or (3), the CMA must have regard, in particular, to—

(a)whether the arrangements concerned raise any consideration specified in section 58;

(b)whether a special intervention notice (see section 59(2)) is in force in relation to the arrangements.

(5)Where the CMA decides to accept a fast-track reference request the duties to make references under sections 22(1) and 33(1) do not apply, and accordingly the CMA may not make any reference under those provisions in respect of the arrangements concerned (but see the duties under sections 22(1A) and 33(1A)).”

8(1)Section 39 (time-limits for investigations and reports) is amended as follows.U.K.

(2)In subsection (3), after “section 38” insert “on a reference under section 22(1) or 33(1)”.

(3)After that subsection insert—

“(3A)The CMA may extend, by no more than 11 weeks, the period within which a report under section 38 on a reference under section 22(1A) or 33(1A) is to be prepared and published if it considers that there are special reasons why the report cannot be prepared and published within that period.”

(4)In subsection (7), after “(3)” insert “, (3A)”.

9(1)Section 40 (section 39: supplementary) is amended as follows.U.K.

(2)In subsection (4), after “section 39(3)” insert “or (3A)”.

(3)In subsection (5), before “or (4)” insert “, (3A)”.

10(1)In Chapter 3 of Part 3 of EA 2002 (mergers: other special cases), Schedule 5A (energy network mergers affecting comparative regulation: modifications of Chapter 1 of Part 3) is amended as follows.U.K.

(2)In paragraph 1 (general modifications), in sub-paragraph (2), for the words after “include” substitute “—

(a)a reference made under a subsection of that section;

(b)a reference treated as made under that section.”

(3)For paragraph 5 (time limits for decisions about references) substitute—

“5Section 34ZA (time-limits for decisions about references) has effect as if—

(a)in subsection (1)(a)—

(i)the reference to section 22(2) were to section 68B(2);

(ii)the reference to section 22(3) were to section 68B(3);

(iii)the reference to section 33(2) were to section 68C(2);

(iv)the reference to section 33(3) were to section 68C(3);

(b)section (1A) were omitted.

5AChapter 1 has effect as if sections 34ZD to 34ZF (fast-track reference requests) were omitted.”

(4)After paragraph 7 insert—

“Time-limits for investigations and reports

7ASection 39 (time-limits for investigations and reports) has effect as if subsection (3A) were omitted.”

11(1)In Chapter 4 of Part 3 of EA 2002 (mergers: enforcement), section 73 (undertakings in lieu of references under section 22 or 33) is amended as follows.U.K.

(2)In the heading, for “section 22, 33” substitute “section 22(1), 33(1)”.

(3)In subsection (1), for “section 22 or 33” substitute “section 22(1) or 33(1)”.

12U.K.Chapter 5 of Part 3 of EA 2002 (mergers: supplementary) is amended as follows.

13U.K.In section 104 (certain duties of relevant authorities to consult), in subsection (6), in the definition of “relevant decision”, in paragraph (a)—

(a)in sub-paragraph (i), for “section 22, 33” substitute “section 22(1), 33(1)”;

(b)in sub-paragraph (ii), for “such a reference” substitute “a reference under section 22, 33, 68B or 68C”.

14(1)Section 107 (further publicity requirements) is amended as follows.U.K.

(2)In subsection (1)—

(a)in paragraph (a), for “section 22, 33” substitute “section 22(1), 33(1)”;

(b)after paragraph (aa) insert—

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

(3)In subsection (6), after “in relation to” insert —

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

(b).

15U.K.In section 130 (interpretation), in the appropriate place insert—

Prospective

Section 137

Schedule 8U.K.Acceptance of undertakings at any stage of a market study or investigation

1U.K.Part 4 of EA 2002 (market studies and market investigations) is amended as follows.

2(1)Section 131B (market studies and the making of decisions to refer: time-limits) is amended as follows.U.K.

(2)In subsection (4), in paragraph (b), after “proposes to take” insert “, or has taken,”.

(3)In subsection (5), in paragraph (a), for “section 154 instead of” substitute “section 154A instead of, or in addition to,”.

3(1)Section 133A (functions to be exercised by CMA groups) is amended as follows.U.K.

(2)In subsection (1), after paragraph (b) insert—

“(ba)section 154A, so far as relating to undertakings in lieu of a report;”.

(3)In subsection (2), before paragraph (a) insert—

“(za)section 154A, so far as relating to undertakings in lieu of a report;”.

4U.K.In section 136 (investigations and reports on market investigation references), in subsection (2), after paragraph (a) insert—

“(aa)any decision of the CMA under section 154A to accept an undertaking partially in lieu of a report;”.

5(1)Section 139 (public interest intervention by the Secretary of State) is amended as follows.U.K.

(2)In subsection (1A), in paragraph (a), for “under section 154” substitute “fully in lieu of a reference under section 154A”.

(3)In subsection (1B), in paragraph (a), for “under section 154” substitute “fully in lieu of a reference under section 154A”.

(4)In subsection (2), in paragraph (a), in sub-paragraph (i), for “undertaking under section 154 instead of making a reference under section 131” substitute “undertaking in lieu of a reference under section 154A”.

(5)In subsection (4C), for “154” substitute “154A”.

6(1)Section 140 (intervention notices under section 139(1)) is amended as follows.U.K.

(2)In subsection (5), in paragraph (za), for “under section 154” to the end substitute “fully in lieu of a reference under section 154A”.

(3)In subsection (6A), for “154” substitute “154A”.

7U.K.In section 150 (power of veto of Secretary of State), in subsection (A1) for “under section 154” substitute “in lieu of a reference under section 154A”.

8U.K.For section 154 (and the italic heading immediately before it) substitute—

“Undertakings in lieuU.K.

154AUndertakings fully or partially in lieu of references or reports

(1)This section applies where—

(a)no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference,

(b)a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or

(c)a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.

(2)The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)—

(a)any adverse effect on competition concerned, or

(b)any detrimental effect on customers so far as—

(i)it has resulted from the adverse effect on competition, or

(ii)it may be expected to result from the adverse effect on competition.

(3)An undertaking under this section is known as—

(a)an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b);

(b)an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).

(4)The CMA may accept—

(a)undertakings in lieu of a reference either—

(i)instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or

(ii)in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);

(b)undertakings in lieu of a report either—

(i)instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or

(ii)in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).

(5)In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

(a)the adverse effect on competition concerned, and

(b)any detrimental effects on customers so far as resulting from the adverse effect on competition.

(6)In accepting an undertaking under this section, the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.

(7)Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking).

(8)An undertaking under this section—

(a)comes into force when accepted;

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

(c)may be released by the CMA.

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

(10)This section is subject to sections 150 and 155.”

9(1)Section 155 (undertakings in lieu: procedural requirements) is amended as follows.U.K.

(2)In subsection (1), for “154” substitute “154A”.

(3)For subsection (3) substitute—

“(3A)The matters to be included in a notice under subsection (1) by virtue of subsection (2) include, in particular, the adverse effect on competition, and any detrimental effect on customers so far as resulting from the adverse effect on competition, which the CMA has identified.”

(4)In subsection (10), for “154” substitute “154A”.

10(1)Section 156 (effect of undertakings under section 154) is amended as follows.U.K.

(2)In the heading, for “under section 154” substitute “in lieu”;

(3)In subsection (A1)—

(a)in paragraph (a), for “154” substitute “154A”;

(b)in paragraph (b)—

(i)for “the” in the first place it occurs substitute “any”;

(ii)for “the same as the” substitute “a”.

(4)In subsection (1)—

(a)in paragraph (a), for “under section 154” substitute “in lieu of a reference under section 154A”;

(b)omit the “and” after paragraph (a);

(c)after paragraph (a) insert—

“(ab)any feature or combination of features to which the undertaking or group of undertakings relates is a feature or combination of features to which the reference would relate; and”.

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

(6)After subsection (3) insert—

“(4)Where the CMA has, under section 154A, accepted an undertaking, or group of undertakings, in lieu of a report the CMA is not required by virtue of section 134 to make the decisions referred to in subsections (1) and (1A) of that section in relation to a feature, or features, to which the undertaking, or group of undertakings, relate.

(5)Accordingly, a report under section 136 is not required, and the duty under section 138 does not arise, if the CMA accepts an undertaking fully in lieu of a report.

(6)Instead, where the CMA accepts an undertaking fully in lieu of a report the CMA must prepare and publish a report containing—

(a)the CMA’s decision to accept the undertaking,

(b)the reasons for the decision, and

(c)such information as the CMA considers appropriate for facilitating a proper understanding of the decision and its reasons for the decision.

(7)For provision equivalent to subsection (6) in the case where the CMA accepts an undertaking partially in lieu of a report, see section 136(2)(aa).”

11U.K.After section 156 insert—

“Interim undertakings and orders”.

12U.K.After section 158 insert—

“Final undertakings and orders”.

13(1)Section 162 (duty of CMA to monitor the carrying out of undertakings and orders: Part 4) is amended as follows.U.K.

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

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

14U.K.In section 169(6) (certain duties of relevant authorities to consult: Part 4), in paragraph (a)(ia) of the definition of “relevant decision”, for “under section 154” to the end substitute “in lieu of a reference under section 154A”.

15(1)Section 174C (section 174B: supplementary provision) is amended as follows.U.K.

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

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

16U.K.In section 183 (interpretation: Part 4), in subsection (3), in paragraph (a)—

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

(b)after that sub-paragraph insert—

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

17U.K.In Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (the CMA), in Part 2 (the CMA Board), in paragraph 29 (delegation), in sub-paragraph (2)(e), for “under section 154” substitute “in lieu of a reference under section 154A”.

Prospective

1U.K.Part 4 of EA 2002 (market studies and market investigations) is amended as follows.

Prospective

2(1)Section 133A (functions to be exercised by CMA groups) is amended as follows.U.K.

(2)In subsection (1)—

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

(b)after that paragraph insert—

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

(c)after paragraph (f) insert—

“(fa)section 161C;”.

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

“(ca)section 162B;”.

Prospective

3(1)Section 138A (time-limits for discharging duty under section 138) is amended as follows.U.K.

(2)Before subsection (1) insert—

“(A1)Subsection (A3) applies in relation to an adverse effect on competition in respect of which the CMA—

(a)has begun an implementation trial under section 161C, or

(b)considers that it is not reasonably practicable to discharge its duty under section 138(2) in accordance with subsection (1) as a result of such an implementation trial in respect of another adverse effect on competition.

(A2)Subsection (1) applies in relation to any other adverse effect on competition.

(A3)Where this subsection applies, the CMA must discharge its duty under section 138(2) before the day specified under section 161D(5)(b)(ii).”

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

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

Prospective

5U.K.After section 162A (inserted by section 139(4)) insert—

“162BPower to vary etc undertakings and orders: implementation trials

(1)This section applies in relation to implementation trial measures imposed in accordance with section 161C.

(2)The CMA must keep under review the effectiveness of the implementation trial measures.

(3)The CMA must, in particular, from time to time consider—

(a)whether an implementation trial measure has been or is being complied with;

(b)whether an undertaking accepted under section 161C is no longer appropriate and—

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

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

(c)whether an order made under section 161C is no longer appropriate and needs to be varied or revoked.

(4)The CMA must, within the implementation trial period, give the Secretary of State such advice as it considers appropriate in relation to—

(a)any possible variation or release by the Secretary of State of an undertaking accepted by the Secretary of State under section 161C;

(b)any possible new undertaking to be accepted by the Secretary of State under that section so as to supersede another undertaking given to the Secretary of State under that section;

(c)any possible variation or revocation by the Secretary of State of an order made by the Secretary of State under that section;

(d)any possible undertaking to be accepted by the Secretary of State under that section instead of an order made under that section, or any possible order to be made by the Secretary of State under that section instead of an undertaking accepted under that section.

(5)The relevant authority must, within the implementation trial period, take such action as it considers appropriate in relation to—

(a)any possible variation or release by the relevant authority of an undertaking accepted by it under section 161C;

(b)any possible new undertaking to be accepted by the relevant authority under that section so as to supersede another undertaking given to it under that section;

(c)any possible variation or revocation by the relevant authority of an order made by it under that section;

(d)any possible undertaking to be accepted by the relevant authority under that section instead of an order made under that section, or any possible order to be made by the relevant authority under that section instead of an undertaking accepted under that section.

(6)But the relevant authority may not do anything under this section that would result in—

(a)the implementation trial period being extended;

(b)an order or undertaking made under section 161C being out of compliance with any provision of that section.

(7)In this section “relevant authority” has the meaning given by section 161B(2).

(8)Subsections (3), (5) and (6) of section 138 apply to action taken by the CMA under this section as those subsections apply to action taken by the CMA under section 138(2).

(9)Subsections (3)(b), (5) and (6) of section 147 apply to action taken by the Secretary of State under this section in respect of a restricted PI reference as those subsections apply to action taken by the Secretary of State under section 147(2).

(10)Subsection (3) of section 147A applies to action taken by the Secretary of State under this section in respect of a full PI reference as that subsection applies to action taken by the Secretary of State under section 147A(2).”

Prospective

6U.K.In section 165 (procedural requirements for certain undertakings and orders: Part 4)—

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

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

Prospective

7(1)Section 167 (rights to enforce undertakings and orders under Part 4) is amended as follows.U.K.

(2)In subsection (1)—

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

(b)after that paragraph insert “;

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

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

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

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

Prospective

8(1)Section 167A (enforcement of enforcement undertakings and orders: imposition of penalties) (inserted by paragraph 18 of Schedule 11) is amended as follows.U.K.

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

(3)In subsection (1)—

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

(b)after that paragraph insert “;

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

Prospective

9(1)In section 167B (penalties under section 167A: amount) (inserted by paragraph 18 of Schedule 11), subsection (5)(b) is amended as follows.U.K.

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

(3)After that sub-paragraph insert “, or

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

Prospective

10(1)In section 169 (certain duties of relevant authorities to consult: Part 4), in subsection (6), paragraph (a) of the definition of “relevant decision” is amended as follows.U.K.

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

(3)after that sub-paragraph insert—

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

Prospective

11U.K.In section 172 (further publicity requirements: Part 4), in subsection (2), after paragraph (zb) insert—

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

Prospective

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

Prospective

2(1)In section 26 (investigations: powers to require documents and information), subsection (3) is amended as follows.U.K.

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

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

(4)For paragraph (b) substitute—

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

Prospective

3(1)In section 26A (investigations: power to ask questions), subsection (5) is amended as follows.U.K.

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

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

(4)For paragraph (b) substitute—

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

Prospective

4U.K.In section 27 (power to enter business premises without a warrant), in subsection (2), for paragraph (c) substitute—

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

Prospective

5(1)In section 29 (entry of premises under warrant: supplementary), subsection (1) is amended as follows.U.K.

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

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

(4)For paragraph (b) substitute—

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

Prospective

6(1)In section 40ZD (information relating to transferred EU anti-trust commitments and transferred EU anti-trust directions), subsection (3) is amended as follows.U.K.

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

(3)After that paragraph insert “, and

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

Prospective

7U.K.For the italic heading before section 40A substitute—

“Civil sanctions: failure to comply with investigative requirements”

Prospective

8U.K.Before section 40A (but after the italic heading substituted by paragraph 7) insert—

“40ZEEnforcement of requirements: imposition of penalties

(1)The CMA may impose a penalty on a person in accordance with section 40A where the CMA considers that—

(a)the person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 26, 26A, 27, 28, 28A or 40ZD;

(b)the person has, without reasonable excuse, obstructed an officer acting in the exercise of the officer’s powers under section 27 or under a warrant issued under section 28 or 28A;

(c)the person, having been required to produce a document under section 26, 27, 28 or 28A, has, without reasonable excuse—

(i)destroyed or otherwise disposed of, falsified or concealed the document, or

(ii)caused or permitted the document’s destruction, disposal, falsification or concealment;

(d)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to the CMA in connection with any function of the CMA under this Part;

(e)the person has, without reasonable excuse, provided information that was false or misleading in a material particular to another person knowing that the information was to be used for the purpose of providing information to the CMA in connection with any function of the CMA under this Part.

(2)But the CMA may not proceed against a person under this section in relation to an act or omission which constitutes an offence under any of sections 42 to 44 if the person has, by reason of that act or omission, been found guilty of that offence.

(3)In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 40B at the time when the act or omission concerned occurred.

(4)In this section—

(a)the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;

(b)the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(5)Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) or (1A) of that Act, with the following modifications—

(a)any reference in those provisions to the appropriate authority is to be read as a reference to the CMA only;

(b)section 114(5A) is to be read as if the words “In the case of a penalty imposed on a person by the CMA or OFCOM,” were omitted;

(c)section 114(12) is to be read as if, for paragraph (b), there were substituted—

“(b)“relevant guidance” means the statement of policy which was most recently published under section 40B of the 1998 Act at the time when the act or omission concerned occurred.””

Prospective

10(1)Section 40B (statement of policy on penalties) is amended as follows.U.K.

(2)In subsection (1)—

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

(b)for “40A” substitute “40ZE”.

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

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

(5)After subsection (5) insert—

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

(6)Omit subsection (6).

Prospective

11(1)Section 42 (offences) is amended as follows.U.K.

(2)For the heading substitute “Obstruction”.

(3)After subsection (7) insert—

“(8)A person is not guilty of an offence under subsection (5) or (7) by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).”

Prospective

12U.K.In section 43 (destroying or falsifying documents), after subsection (1) insert—

“(1A)A person is not guilty of an offence under subsection (1) by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).”

Prospective

13U.K.In section 44 (false or misleading information), after subsection (2) insert—

“(2A)A person is not guilty of an offence under this section by reason of any act or omission in relation to which the CMA has proceeded against the person under section 40ZE(1).”

Prospective

14U.K.In Part 3 of EA 2002 (mergers), Chapter 5 (supplementary: investigation powers) is amended as follows.

Prospective

15(1)Section 110 (enforcement of powers under section 109: general) is amended as follows.U.K.

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

(3)For subsection (1) substitute—

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

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

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

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

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

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

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

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

(a)the CMA;

(b)the Secretary of State;

(c)OFCOM.

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

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

(5)Omit subsections (3) to (8).

(6)For subsection (9) substitute—

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

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

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

Prospective

16(1)Section 110A (restriction on powers to impose penalties under section 110) is amended as follows.U.K.

(2)In subsection (1)—

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

(b)for “4” substitute “ten”.

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

Prospective

18(1)Section 112 (penalties: main procedural requirements) is amended as follows.U.K.

(2)Before subsection (1) insert—

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

(A2)A provisional penalty notice must—

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

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

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

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

(3)In subsection (1)—

(a)for “(3)” substitute “(1A)”;

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

(4)In subsection (2)—

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

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

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

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

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

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

(6)After subsection (3) insert—

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

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

Prospective

19(1)Section 113 (payment and interest by instalments) is amended as follows.U.K.

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

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

Prospective

20(1)Section 114 (appeals in relation to penalties) is amended as follows.U.K.

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

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

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

(5)After subsection (5) insert—

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

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

(7)In subsection (12)—

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

(b)after that paragraph insert—

“(b)“the relevant guidance” means—

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

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

Prospective

21(1)Section 115 (recovery of penalties) is amended as follows.U.K.

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

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

Prospective

22(1)Section 116 (statement of policy) is amended as follows.U.K.

(2)For subsection (1) substitute—

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

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

(b)the enforcement of notices under section 109.”

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

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

(5)After subsection (4) insert—

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

Prospective

23U.K.After section 116 insert—

“116AIntentional destruction etc of documents

(1)A person (“P”) commits an offence if the person intentionally alters, suppresses or destroys any document which P has been required to produce by a notice under section 109.

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

(3)A person who commits an offence under subsection (1) is liable—

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

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

(4)In this section—

(a)the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;

(b)the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.”

Prospective

24(1)Section 117 (false or misleading information) is amended as follows.U.K.

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

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

(4)After subsection (2) insert—

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

Prospective

25U.K.In section 120 (review of decisions under Part 3), in subsection (2), in paragraph (a), for “(3)” substitute “(1A)”.