Digital Markets, Competition and Consumers Act 2024

Part 3U.K.Investigations under Part 4 of EA 2002 (market studies and market investigations)

26U.K.In Part 4 of EA 2002 (market studies and market investigations), Chapter 4 (supplementary: investigation powers) is amended as follows.

27(1)Section 174A (enforcement of powers under section 174: 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 174D where the CMA considers that—

(a)the person has, without reasonable excuse, failed to comply with any requirement of a notice under section 174;

(b)the person has, without reasonable excuse, obstructed or delayed another person in the exercise of the other person’s powers under section 174(7);

(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 174.

(1A)The relevant authority may impose a penalty on a person in accordance with section 174D 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 174B to 174D, “the relevant authority” means—

(a)the CMA;

(b)the Secretary of State;

(c)the appropriate Minister (so far as the Minister is not the Secretary of State acting alone).

(1C)But the relevant 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 as applied by section 180 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 (7).

(6)In subsection (8)—

(a)for “(3)” substitute “(1A)”;

(b)for “failure concerned or (as the case may be) the obstruction or delay” substitute “act or omission”.

(7)After subsection (9) insert—

“(10)Sections 112 to 115 apply in relation to a penalty imposed under section 174A(1) or (1A) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—

(a)any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section;

(b)section 114(5A) is to be read as if the words “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 174E at the time when the act or omission concerned occurred.””

28(1)Section 174B (restriction on powers to impose penalties under section 174A) is amended as follows.U.K.

(2)In subsection (1)—

(a)for “174A(1) or (3)” substitute “174A(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”.

29(1)Section 174D (penalties) is amended as follows.U.K.

(2)In the heading, at the end insert “: amount”.

(3)In subsection (1)—

(a)for “(3)” substitute “(1A)”;

(b)for “the CMA” insert “the relevant authority”.

(4)In subsection (2), in the words before paragraph (a), for “174A(1)” substitute “174A(1)(a)”.

(5)In subsection (3), for “section 174A(3)” substitute “any of section 174A(1)(b), (c) or (1A)”.

(6)In subsection (4)—

(a)for the words before paragraph (a) substitute “A penalty imposed under section 174A(1) or (1A) on a person who does not own or control an enterprise must not—”;

(b)in paragraph (a), for “such amount as the Secretary of State may by order specify” substitute “£30,000”;

(c)in paragraph (b), for “such amount per day as the Secretary of State may so specify” substitute “£15,000 per day”;

(d)in paragraph (c) omit “as the Secretary of State may so specify”.

(7)After subsection (4) insert—

“(4A)A penalty imposed under section 174A(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.”

(8)Omit subsections (5) and (6).

(9)Before subsection (7) insert—

“(6A)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.”

(10)In subsection (7), in the words before paragraph (a), for “an order under subsection (4) or (5)” substitute “regulations under subsection (6A)”.

(11)In subsection (8), in paragraph (a)—

(a)for “notice under section 112” substitute “provisional penalty notice under section 112(A1)”;

(b)for “subsection (10)” substitute “section 174A(10)”.

(12)Omit subsection (10).

(13)After subsection (10) insert—

“(11)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.

(12)Regulations under subsection (11)(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.

(13)Regulations under subsection (11) may, in particular, make provision enabling the relevant authority to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (12)).”

30(1)Section 174E (statement of policy on penalties) 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 174A, and

(b)the enforcement of notices under section 174.”

(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.”

31U.K.In section 179 (review of decisions under Part 4), in subsection (2), in paragraph (a), for “(3)” substitute “(1A)”.

32(1)Section 180 (offences) is amended as follows.U.K.

(2)In subsection (1), after “Sections” insert “116A (intentional destruction etc of documents),”.

(3)For subsection (2) substitute—

“(1A)For the purposes of subsection (1), section 116A has effect as if—

(a)references to section 109 were references to section 174;

(b)the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).

(1B)For the purposes of subsection (1), section 117 has effect as if—

(a)references to “the appropriate authority” were to “the relevant authority” within the meaning of section 174A;

(b)the reference to section 110(1) or (1A) were a reference to section 174A(1) or (1A).”

33U.K.In section 183 (interpretation: Part 4), in subsection (1), at the appropriate place insert—

• ““enterprise” means the activities, or part of the activities, of a business;”.

34U.K.In section 184 (index of defined expressions: Part 4), at the appropriate place in the table insert—