|
| |
|
| |
(1) | A penalty imposed under section 174A(1) or (3) shall be of such |
| |
amount as the CMA considers appropriate. |
| |
(2) | In the case of a penalty imposed under section 174A(1), the amount |
| |
| 5 |
| |
(b) | an amount calculated by reference to a daily rate; or |
| |
(c) | a combination of a fixed amount and an amount calculated |
| |
by reference to a daily rate. |
| |
(3) | In the case of a penalty imposed under section 174A(3), the amount |
| 10 |
| |
(4) | A penalty imposed under section 174A(1) shall not— |
| |
(a) | in the case of a fixed amount, exceed such amount as the |
| |
Secretary of State may by order specify; |
| |
(b) | in the case of an amount calculated by reference to a daily |
| 15 |
rate, exceed such amount per day as the Secretary of State |
| |
| |
(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 as the Secretary of State may so specify. |
| 20 |
(5) | A penalty imposed under section 174A(3) shall not exceed such |
| |
amount as the Secretary of State may by order specify. |
| |
(6) | An order under subsection (4) or (5) shall not specify— |
| |
(a) | in the case of a fixed amount, an amount exceeding £30,000; |
| |
(b) | in the case of an amount calculated by reference to a daily |
| 25 |
rate, an amount per day exceeding £15,000; and |
| |
(c) | in the case of a fixed amount and an amount calculated by |
| |
reference to a daily rate, a fixed amount exceeding £30,000 |
| |
and an amount per day exceeding £15,000. |
| |
(7) | Before making an order under subsection (4) or (5), the Secretary of |
| 30 |
| |
| |
(b) | such other persons as the Secretary of State considers |
| |
| |
(8) | In imposing a penalty by reference to a daily rate— |
| 35 |
(a) | no account is to be taken of any days before the service on the |
| |
person concerned of notice of the penalty under section 112 |
| |
(as applied by subsection (10)); and |
| |
(b) | unless the CMA determines an earlier date (whether before |
| |
or after the penalty is imposed), the amount payable ceases to |
| 40 |
accumulate at the beginning of the earliest of the days |
| |
mentioned in subsection (9). |
| |
| |
(a) | the day on which the requirement of the notice concerned |
| |
under section 174 is satisfied; |
| 45 |
(b) | the day which is the relevant day in the case in question for |
| |
the purposes of section 174B. |
| |
|
| |
|
| |
|
(10) | Sections 112 to 115 apply in relation to a penalty imposed under |
| |
section 174A(1) or (3) as they apply in relation to a penalty imposed |
| |
under section 110(1) or (3). |
| |
174E | Statement of policy on penalties |
| |
(1) | The CMA shall prepare and publish a statement of policy in relation |
| 5 |
to the enforcement of notices given under section 174. |
| |
(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 174A(1) or (3). |
| |
(3) | The CMA may revise its statement of policy and, where it does so, it |
| 10 |
shall publish the revised statement. |
| |
(4) | The CMA shall consult such persons as it considers appropriate |
| |
when preparing or revising its statement of policy.” |
| |
Investigation powers: miscellaneous consequential amendments |
| |
2 | Part 4 of the 2002 Act (market investigations) is amended as follows. |
| 15 |
3 | Omit section 175 (enforcement of powers under section 174: offences). |
| |
4 | Omit section 176 (investigation powers of the Commission). |
| |
5 | In section 179 (review of decisions under Part 4), in subsection (2)(a), for |
| |
“section 110(1) or (3) as applied by section 176” substitute “section 174A(1) |
| |
| 20 |
6 (1) | Section 181 (orders under Part 4) is amended as follows. |
| |
(2) | In subsection (4), for the words from “or 161,” to “section 176” substitute “, |
| |
161, 174D(4) or (5), or under section 114(3)(b) or (4)(b) as applied by section |
| |
| |
| 25 |
(a) | omit “111(4) or (6) or”, and |
| |
(b) | for “176” substitute “174D”. |
| |
| |
| |
| |
Market studies and decisions whether to make a reference under section 131 |
| 30 |
1 | Before section 131 of the 2002 Act (power to make market investigation |
| |
| |
| |
130A | Duty to publish market study notice |
| |
(1) | Where the CMA is proposing to carry out its functions under section |
| 35 |
5 in relation to a matter for the purposes mentioned in subsection (2), |
| |
|
| |
|
| |
|
the CMA must publish a notice under this section (referred to in this |
| |
Part as a “market study notice”). |
| |
| |
(a) | to consider the extent to which a matter in relation to the |
| |
acquisition or supply of goods or services of one or more than |
| 5 |
one description in the United Kingdom has or may have |
| |
effects adverse to the interests of consumers; and |
| |
(b) | to assess the extent to which steps can and should be taken to |
| |
remedy, mitigate or prevent any such adverse effects. |
| |
(3) | A market study notice shall, in particular, specify— |
| 10 |
(a) | the matter in relation to which the CMA is proposing to carry |
| |
out its functions under section 5; |
| |
(b) | the period during which representations may be made to the |
| |
CMA in relation to the matter; and |
| |
(c) | the dates by which the CMA is required to comply with the |
| 15 |
requirements imposed on it by sections 131A and 131B.” |
| |
2 | After section 131 of that Act insert— |
| |
“131A | Decisions about references under section 131: consultation |
| |
(1) | This section applies to a case where the CMA has published a market |
| |
| 20 |
(a) | the CMA is proposing to make a reference under section 131 |
| |
in relation to the matter specified in the notice; or |
| |
(b) | a representation has been made to the CMA within the period |
| |
specified in the notice under section 130A(3)(b) to the effect |
| |
that such a reference should be made but the CMA is |
| 25 |
proposing not to make such a reference. |
| |
| |
(a) | publish notice of the proposal concerned; and |
| |
(b) | consult the relevant persons about the proposal, in such |
| |
manner as it considers practicable, before deciding whether |
| 30 |
| |
(3) | The CMA may, for the purposes of subsection (1), ignore any |
| |
representation which it considers to be frivolous or vexatious. |
| |
(4) | For the purposes of subsection (2), a person is a “relevant person” if |
| |
the CMA considers that its decision whether to make a reference is |
| 35 |
likely to have a substantial impact on the person’s interests. |
| |
(5) | In consulting a person for the purposes of this section, the CMA |
| |
shall, so far as practicable, give its reasons for the proposal. |
| |
(6) | In considering what is practicable for the purposes of this section, the |
| |
CMA shall, in particular, have regard to— |
| 40 |
(a) | the restrictions imposed by the time-table for making the |
| |
decision (see section 131B); and |
| |
(b) | any need to keep what is proposed, or the reasons for it, |
| |
| |
|
| |
|
| |
|
131B | Market studies and the making of decisions to refer: time-limits |
| |
(1) | Where the CMA has published a market study notice in a case to |
| |
which section 131A applies, the CMA shall, within the period of 6 |
| |
months beginning with the date on which it publishes the notice— |
| |
(a) | publish the notice under section 131A(2)(a); and |
| 5 |
(b) | begin the process of consultation under section 131A(2)(b) |
| |
(but the CMA need not complete the process within that |
| |
| |
(2) | Subsection (3) applies where— |
| |
(a) | the CMA has published a market study notice; |
| 10 |
(b) | no representation has been made to the CMA within the |
| |
period specified in the notice under section 130A(3)(b) to the |
| |
effect that a reference under section 131 should be made in |
| |
relation to the matter specified in the notice; and |
| |
(c) | the CMA has decided not to make such a reference. |
| 15 |
(3) | The CMA shall, within the period of 6 months beginning with the |
| |
date on which it publishes the market study notice, publish notice of |
| |
the decision not to make a reference. |
| |
(4) | Where the CMA has published a market study notice it shall, within |
| |
the period of 12 months beginning with the date on which it |
| 20 |
publishes the notice, prepare and publish a report (referred to in this |
| |
Part as a “market study report”) which sets out— |
| |
(a) | the findings of the CMA in relation to the matter specified in |
| |
| |
(b) | the action (if any) which the CMA proposes to take in relation |
| 25 |
| |
(5) | In a case to which section 131A applies, the market study report |
| |
shall, in particular, contain— |
| |
(a) | the decision of the CMA to make a reference under section |
| |
131 in relation to the matter specified in the market study |
| 30 |
notice, the decision to accept an undertaking under section |
| |
154 instead of making such a reference or (as the case may be) |
| |
the decision otherwise not to make such a reference; |
| |
(b) | the CMA’s reasons for the decision; and |
| |
(c) | such information as the CMA considers appropriate for |
| 35 |
facilitating a proper understanding of its reasons for the |
| |
| |
(6) | Where a market study report contains a decision of the CMA to make |
| |
a reference under section 131 in relation to a matter, the CMA shall, |
| |
at the same time as it publishes the report, make the reference. |
| 40 |
(7) | This section is subject to section 140A (duty of Secretary of State to |
| |
refer in public interest intervention cases). |
| |
131C | Time-limits under section 131B: supplementary |
| |
(1) | The Secretary of State may by order amend section 131B so as to alter |
| |
one or more of the following periods— |
| 45 |
|
| |
|
| |
|
(a) | the period of 6 months mentioned in subsection (1) or (3) or |
| |
any period for the time being mentioned in either of those |
| |
subsections in substitution for that period; |
| |
(b) | the period of 12 months mentioned in subsection (4) or any |
| |
period for the time being there mentioned in substitution for |
| 5 |
| |
(2) | But no alteration may be made by virtue of subsection (1) which |
| |
| |
(a) | the period for the time being mentioned in subsection (1) or |
| |
(3) exceeding 6 months; or |
| 10 |
(b) | the period for the time being mentioned in subsection (4) |
| |
| |
(3) | Before making an order under this section the Secretary of State shall |
| |
consult the CMA and such other persons as the Secretary of State |
| |
| 15 |
Market investigations and reports |
| |
3 (1) | Section 137 of the 2002 Act (time-limits for market investigations and |
| |
reports) is amended as follows. |
| |
(2) | In subsection (1), for “two years” substitute “18 months”. |
| |
(3) | After subsection (2) insert— |
| 20 |
“(2A) | The CMA may extend, by no more than 6 months, the period within |
| |
which its report under section 136 is to be prepared and published if |
| |
it considers that there are special reasons for doing so. |
| |
(2B) | An extension under subsection (2A) shall come into force when |
| |
published under section 172. |
| 25 |
(2C) | No more than one extension is possible under subsection (2A).” |
| |
(4) | For subsection (3) substitute— |
| |
“(3) | The Secretary of State may by order amend this section so as to alter |
| |
one or more of the following periods— |
| |
(a) | the period of 18 months mentioned in subsection (1) or any |
| 30 |
period for the time being there mentioned in substitution for |
| |
| |
(b) | the period of 6 months mentioned in subsection (2A) or any |
| |
period for the time being there mentioned in substitution for |
| |
| 35 |
(5) | For subsection (4) substitute— |
| |
“(4) | But no alteration shall be made by virtue of subsection (3) which |
| |
| |
(a) | the period for the time being mentioned in subsection (1) |
| |
| 40 |
(b) | the period for the time being mentioned in subsection (2A) |
| |
| |
|
| |
|
| |
|
| |
4 | In section 138 of the 2002 Act (duty to remedy adverse effects), in subsection |
| |
(2), after “shall,” insert “within the period permitted by section 138A,”. |
| |
5 | After section 138 of that Act insert— |
| |
“138A | Time-limits for discharging duty under section 138 |
| 5 |
(1) | The CMA shall discharge its duty under section 138(2) within the |
| |
period of 6 months beginning with the date on which it publishes the |
| |
report concerned under section 136. |
| |
(2) | The CMA may extend, by no more than 4 months, the period within |
| |
which its duty under section 138(2) is required to be discharged if it |
| 10 |
considers that there are special reasons for doing so. |
| |
(3) | The CMA may extend the period within which its duty under section |
| |
138(2) is required to be discharged if it considers that— |
| |
(a) | a person has failed (whether with or without reasonable |
| |
excuse) to comply with any requirement of a notice under |
| 15 |
section 174 which was given in relation to the reference; and |
| |
(b) | the failure is preventing the CMA from properly discharging |
| |
its duty under section 138(2). |
| |
(4) | An extension under subsection (2) or (3) shall come into force when |
| |
published under section 172. |
| 20 |
(5) | An extension under subsection (3) continues in force until— |
| |
(a) | the person concerned provides the information or documents |
| |
to the satisfaction of the CMA or (as the case may be) appears |
| |
as a witness in accordance with the requirements of the CMA; |
| |
| 25 |
(b) | the CMA publishes its decision to cancel the extension. |
| |
138B | Section 138A: supplementary |
| |
(1) | A period extended under section 138A(2) may also be extended |
| |
under section 138A(3), and a period extended under section 138A(3) |
| |
may also be extended under section 138A(2). |
| 30 |
(2) | No more than one extension is possible under section 138A(2). |
| |
(3) | Where a period is extended or further extended under section |
| |
138A(2) or (3), the period as extended or (as the case may be) further |
| |
extended shall, subject to subsections (4) and (5), be calculated by |
| |
taking the period being extended and adding to it the period of the |
| 35 |
extension (whether or not those periods overlap in time). |
| |
(4) | Subsection (5) applies where— |
| |
(a) | the period within which the CMA shall discharge its duty |
| |
under section 138(2) is further extended; |
| |
(b) | the further extension and at least one previous extension is |
| 40 |
made under section 138A(3); and |
| |
(c) | the same days or fractions of days are included in or comprise |
| |
the further extension and are included in or comprise at least |
| |
one such previous extension. |
| |
|
| |
|
| |
|
(5) | In calculating the period of the further extension, any days or |
| |
fractions of days of the kind mentioned in subsection (4)(c) shall be |
| |
| |
(6) | The Secretary of State may by order amend section 138A so as to alter |
| |
one or more of the following periods— |
| 5 |
(a) | the period of 6 months mentioned in subsection (1) or any |
| |
period for the time being there mentioned in substitution for |
| |
| |
(b) | the period of 4 months mentioned in subsection (2) or any |
| |
period for the time being there mentioned in substitution for |
| 10 |
| |
(7) | But no alteration shall be made by virtue of subsection (6) which |
| |
| |
(a) | the period for the time being mentioned in section 138A(1) |
| |
| 15 |
(b) | the period for the time being mentioned in section 138A(2) |
| |
| |
(8) | Before making an order under subsection (6) the Secretary of State |
| |
shall consult the CMA and such other persons as the Secretary of |
| |
State considers appropriate.” |
| 20 |
Time-limits: public interest intervention cases |
| |
6 (1) | Section 144 of the 2002 Act (time-limits for investigations and reports in |
| |
public interest intervention cases) is amended as follows. |
| |
(2) | In subsection (1), for “two years” substitute “18 months”. |
| |
(3) | After subsection (1A) (inserted by Schedule 10) insert— |
| 25 |
“(1B) | The CMA may extend, by no more than 6 months, the period within |
| |
which its report under section 142 is to be prepared and action is to |
| |
be taken in relation to it under section 143(1) or (3) or (as the case may |
| |
be 143A(2) or (3) if it considers that there are special reasons for |
| |
| 30 |
(1C) | An extension under subsection (1B) shall come into force when |
| |
published under section 172. |
| |
(1D) | No more than one extension is possible under subsection (1B).” |
| |
| |
(a) | after “amend” insert “— |
| 35 |
| |
(b) | for “two years” substitute “18 months”, and |
| |
| |
(b) | subsection (1B) so as to alter the period of 6 months |
| |
mentioned in that subsection or any period for the |
| 40 |
time being mentioned in that subsection in |
| |
substitution for that period.” |
| |
| |
(a) | after “results in” insert “— |
| |
| 45 |
|
| |
|