Legislation – Digital Markets, Competition and Consumers Act 2024

There are currently no known outstanding effects for the Digital Markets, Competition and Consumers Act 2024, Cross Heading: Infringement notices and penalties.

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Part 3Enforcement of consumer protection law

Chapter 4Direct enforcement powers of CMA

Infringement notices and penalties

181Provisional infringement notice

(1)

This section applies where—

(a)

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

(b)

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

(2)

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

(a)

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

(b)

the respondent is an accessory to such a practice.

(3)

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

(4)

A provisional infringement notice must—

(a)

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

(b)

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

(c)

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

(d)

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

(5)

The respondent complies with this subsection by—

(a)

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

(b)

in the case of a respondent within subsection (2)(b), not consenting to or conniving in the infringing practice;

(c)

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

(d)

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

(6)

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

(7)

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

(8)

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

(a)

that the CMA is considering imposing a monetary penalty;

(b)

the proposed amount of the penalty;

(c)

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

182Final infringement notice

(1)

This section applies where—

(a)

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

(b)

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

(c)

after considering such representations (if any), the CMA is satisfied that—

(i)

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

(ii)

the respondent is an accessory to such a practice.

(2)

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

(3)

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

(4)

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

(a)

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

(b)

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

(5)

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

(6)

The amount of a monetary penalty imposed under subsection (4)(b) must be a fixed amount not exceeding £300,000 or, if higher, 10% of the total value of the turnover (if any) of the respondent.

(7)

A final infringement notice must—

(a)

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

(b)

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

(c)

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

(d)

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

(8)

A final infringement notice may require the respondent to publish—

(a)

the notice;

(b)

a corrective statement.

(9)

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

183Final infringement notice: directions to take enhanced consumer measures

(1)

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

(2)

For this purpose, in deciding whether to require the taking of enhanced consumer measures the CMA must in particular consider whether any proposed enhanced consumer measures are proportionate having regard to—

(a)

the likely benefit of the measures to consumers,

(b)

the costs likely to be incurred by the respondent, and

(c)

the likely cost to consumers of obtaining the benefit of the measures.

(3)

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

(a)

the cost of the measures, and

(b)

the reasonable administrative costs associated with taking the measures.

(4)

Where the respondent is required by a final infringement notice to take enhanced consumer measures, the notice may include requirements for the respondent to provide information or documents to the CMA in order that the CMA may determine if the respondent is taking those measures.

(5)

Subsection (6) applies if—

(a)

a final infringement notice requires the taking of enhanced consumer measures offering compensation, and

(b)

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

(6)

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