Consumer Rights Bill (HL Bill 52)

(3) In subsection (2), for “In such a case the CMA” substitute “Any CPC
enforcer”.

(4) In subsection (5)—

(a) in the opening words, for “sections 215 and 217 or 218 (as the case
5may be)” substitute “sections 215, 217 or 218 (as the case may be) and
219A, 219B and 219C”,

(b) for paragraph (c) substitute—

“(c) section 217(9), (10), (10B) and (11) must be ignored, and
section 217(10C) and (10D) must be ignored to the extent that
10they relate to an undertaking under subsection (9);”,

(c) after paragraph (d) insert—

“(e) sections 219A, 219B and 219C must be ignored to the extent
that they relate to an undertaking under section 217(9) or
219.”

10 15In section 229 (advice and information), after subsection (1) insert—

“(1A) As soon as is reasonably practicable after the commencement of
Schedule 5 to the Consumer Rights Act 2014 (investigatory powers
etc.) the CMA must prepare and publish advice and information
with a view to—

(a) 20explaining the provisions of that Schedule, so far as they
relate to investigatory powers exercised for the purposes set
out in paragraphs 13(2) and (3) and 19 of that Schedule, to
persons who are likely to be affected by them, and

(b) indicating how the CMA expects such provisions to operate.”

Section 80

25SCHEDULE 8 Private actions in competition law

Part 1 Competition Act 1998

1 The Competition Act 1998 is amended in accordance with this Part.

2 30For the heading of Chapter 4 of Part 1, substitute “Appeals, proceedings
before the Tribunal and settlements relating to infringements of competition
law”.

3 For the cross-heading preceding section 46, substitute “Appeals and
proceedings before the Tribunal”.

4 (1) 35For section 47A substitute—

“47A Proceedings before the Tribunal: claims for damages etc.

(1) A person may make a claim to which this section applies in
proceedings before the Tribunal, subject to the provisions of this Act
and Tribunal rules.

(2) 40This section applies to a claim of a kind specified in subsection (3)
which a person who has suffered loss or damage may make in civil

proceedings brought in any part of the United Kingdom in respect
of an infringement decision or an alleged infringement of—

(a) the Chapter I prohibition,

(b) the Chapter II prohibition,

(c) 5the prohibition in Article 101(1), or

(d) the prohibition in Article 102.

(3) The claims are—

(a) a claim for damages;

(b) any other claim for a sum of money;

(c) 10in proceedings in England and Wales or Northern Ireland, a
claim for an injunction.

(4) For the purpose of identifying claims which may be made in civil
proceedings, any limitation rules or rules relating to prescription that
would apply in such proceedings are to be disregarded.

(5) 15The right to make a claim in proceedings under this section does not
affect the right to bring any other proceedings in respect of the claim.

(6) In this Part (except in section 49C) “infringement decision” means—

(a) a decision of the CMA that the Chapter I prohibition, the
Chapter II prohibition, the prohibition in Article 101(1) or the
20prohibition in Article 102 has been infringed,

(b) a decision of the Tribunal on an appeal from a decision of the
CMA that the Chapter I prohibition, the Chapter II
prohibition, the prohibition in Article 101(1) or the
prohibition in Article 102 has been infringed, or

(c) 25a decision of the Commission that the prohibition in Article
101(1) or the prohibition in Article 102 has been infringed.”

(2) Section 47A of the Competition Act 1998 (as substituted by sub-paragraph
(1)) applies to claims arising before the commencement of this paragraph as
it applies to claims arising after that time.

5 (1) 30For section 47B substitute—

“47B Collective proceedings before the Tribunal

(1) Subject to the provisions of this Act and Tribunal rules, proceedings
may be brought before the Tribunal combining two or more claims
to which section 47A applies (“collective proceedings”).

(2) 35Collective proceedings must be commenced by a person who
proposes to be the representative in those proceedings.

(3) The following points apply in relation to claims in collective
proceedings—

(a) it is not a requirement that all of the claims should be against
40all of the defendants to the proceedings,

(b) the proceedings may combine claims which have been made
in proceedings under section 47A and claims which have not,
and

(c) a claim which has been made in proceedings under section
4547A may be continued in collective proceedings only with the
consent of the person who made that claim.

(4) Collective proceedings may be continued only if the Tribunal makes
a collective proceedings order.

(5) The Tribunal may make a collective proceedings order only—

(a) if it considers that the person who brought the proceedings is
5a person who, if the order were made, the Tribunal could
authorise to act as the representative in those proceedings in
accordance with subsection (8), and

(b) in respect of claims which are eligible for inclusion in
collective proceedings.

(6) 10Claims are eligible for inclusion in collective proceedings only if the
Tribunal considers that they raise the same, similar or related issues
of fact or law and are suitable to be brought in collective proceedings.

(7) A collective proceedings order must include the following matters—

(a) authorisation of the person who brought the proceedings to
15act as the representative in those proceedings,

(b) description of a class of persons whose claims are eligible for
inclusion in the proceedings, and

(c) specification of the proceedings as opt-in collective
proceedings or opt-out collective proceedings (see
20subsections (10) and (11)).

(8) The Tribunal may authorise a person to act as the representative in
collective proceedings—

(a) whether or not that person is a person falling within the class
of persons described in the collective proceedings order for
25those proceedings (a “class member”), but

(b) only if the Tribunal considers that it is just and reasonable for
that person to act as a representative in those proceedings.

(9) The Tribunal may vary or revoke a collective proceedings order at
any time.

(10) 30“Opt-in collective proceedings” are collective proceedings which are
brought on behalf of each class member who opts in by notifying the
representative, in a manner and by a time specified, that the claim
should be included in the collective proceedings.

(11) “Opt-out collective proceedings” are collective proceedings which
35are brought on behalf of each class member except—

(a) any class member who opts out by notifying the
representative, in a manner and by a time specified, that the
claim should not be included in the collective proceedings,
and

(b) 40any class member who—

(i) is not domiciled in the United Kingdom at a time
specified, and

(ii) does not, in a manner and by a time specified, opt in
by notifying the representative that the claim should
45be included in the collective proceedings.

(12) Where the Tribunal gives a judgment or makes an order in collective
proceedings, the judgment or order is binding on all represented
persons, except as otherwise specified.

(13) The right to make a claim in collective proceedings does not affect the
right to bring any other proceedings in respect of the claim.

(14) In this section and in section 47C, “specified” means specified in a
direction made by the Tribunal.”

(2) 5Section 47B of the Competition Act 1998 (as substituted by sub-paragraph
(1)) applies to claims arising before the commencement of this paragraph as
it applies to claims arising after that time.

6 After section 47B (as substituted by paragraph 5) insert—

“47C Collective proceedings: damages and costs

(1) 10The Tribunal may not award exemplary damages in collective
proceedings.

(2) The Tribunal may make an award of damages in collective
proceedings without undertaking an assessment of the amount of
damages recoverable in respect of the claim of each represented
15person.

(3) Where the Tribunal makes an award of damages in opt-out collective
proceedings, the Tribunal must make an order providing for the
damages to be paid on behalf of the represented persons to—

(a) the representative, or

(b) 20such person other than a represented person as the Tribunal
thinks fit.

(4) Where the Tribunal makes an award of damages in opt-in collective
proceedings, the Tribunal may make an order as described in
subsection (3).

(5) 25Subject to subsection (6), where the Tribunal makes an award of
damages in opt-out collective proceedings, any damages not claimed
by the represented persons within a specified period must be paid to
the charity for the time being prescribed by order made by the Lord
Chancellor under section 194(8) of the Legal Services Act 2007.

(6) 30In a case within subsection (5) the Tribunal may order that all or part
of any damages not claimed by the represented persons within a
specified period is instead to be paid to the representative in respect
of all or part of the costs or expenses incurred by the representative
in connection with the proceedings.

(7) 35The Secretary of State may by order amend subsection (5) so as to
substitute a different charity for the one for the time being specified
in that subsection.

(8) A damages-based agreement is unenforceable if it relates to opt-out
collective proceedings.

(9) 40In this section—

(a) “charity” means a body, or the trustees of a trust, established
for charitable purposes only;

(b) “damages” (except in the term “exemplary damages”)
includes any sum of money which may be awarded by the
45Tribunal in collective proceedings (other than costs or
expenses);

(c) “damages-based agreement” has the meaning given in
section 58AA(3) of the Courts and Legal Services Act 1990.”

7 After section 47C (inserted by paragraph 6) insert—

“47D Proceedings under section 47A or collective proceedings: injunctions
5etc.

(1) An injunction granted by the Tribunal in proceedings under section
47A or in collective proceedings—

(a) has the same effect as an injunction granted by the High
Court, and

(b) 10is enforceable as if it were an injunction granted by the High
Court.

(2) In deciding whether to grant an injunction in proceedings under
section 47A or in collective proceedings, the Tribunal must—

(a) in proceedings in England and Wales, apply the principles
15which the High Court would apply in deciding whether to
grant an injunction under section 37(1) of the Senior Courts
Act 1981, and

(b) in proceedings in Northern Ireland, apply the principles that
the High Court would apply in deciding whether to grant an
20injunction.

(3) Subsection (2) is subject to Tribunal rules which make provision of
the kind mentioned in paragraph 15A(3) of Schedule 4 to the
Enterprise Act 2002 (undertakings as to damages in relation to claims
subject to the fast-track procedure).”

8 (1) 25After section 47D (inserted by paragraph 7) insert—

“47E Limitation or prescriptive periods for proceedings under section 47A
and collective proceedings

(1) Subsection (2) applies in respect of a claim to which section 47A
applies, for the purposes of determining the limitation or
30prescriptive period which would apply in respect of the claim if it
were to be made in—

(a) proceedings under section 47A, or

(b) collective proceedings at the commencement of those
proceedings.

(2) 35Where this subsection applies—

(a) in the case of proceedings in England and Wales, the
Limitation Act 1980 applies as if the claim were an action in a
court of law;

(b) in the case of proceedings in Scotland, the Prescription and
40Limitation (Scotland) Act 1973 applies as if the claim related
to an obligation to which section 6 of that Act applies;

(c) in the case of proceedings in Northern Ireland, the Limitation
(Northern Ireland) Order 1989 applies as if the claim were an
action in a court established by law.

(3) 45Where a claim is made in collective proceedings at the
commencement of those proceedings (“the section 47B claim”),
subsections (4) to (6) apply for the purpose of determining the

limitation or prescriptive period which would apply in respect of the
claim if it were subsequently to be made in proceedings under
section 47A.

(4) The running of the limitation or prescriptive period in respect of the
5claim is suspended from the date on which the collective
proceedings are commenced.

(5) Following suspension under subsection (4), the running of the
limitation or prescriptive period in respect of the claim resumes on
the date on which any of the following occurs—

(a) 10the Tribunal declines to make a collective proceedings order
in respect of the collective proceedings;

(b) the Tribunal makes a collective proceedings order in respect
of the collective proceedings, but the order does not provide
that the section 47B claim is eligible for inclusion in the
15proceedings;

(c) the Tribunal rejects the section 47B claim;

(d) in the case of opt-in collective proceedings, the period within
which a person may choose to have the section 47B claim
included in the proceedings expires without the person
20having done so;

(e) in the case of opt-out collective proceedings—

(i) a person domiciled in the United Kingdom chooses
(within the period in which such a choice may be
made) to have the section 47B claim excluded from
25the collective proceedings, or

(ii) the period within which a person not domiciled in the
United Kingdom may choose to have the section 47B
claim included in the collective proceedings expires
without the person having done so;

(f) 30the section 47B claim is withdrawn;

(g) the Tribunal revokes the collective proceedings order in
respect of the collective proceedings;

(h) the Tribunal varies the collective proceedings order in such a
way that the section 47B claim is no longer included in the
35collective proceedings;

(i) the section 47B claim is settled with or without the Tribunal’s
approval;

(j) the section 47B claim is dismissed, discontinued or otherwise
disposed of without an adjudication on the merits.

(6) 40Where the running of the limitation or prescriptive period in respect
of the claim resumes under subsection (5) but the period would
otherwise expire before the end of the period of six months
beginning with the date of that resumption, the period is treated as
expiring at the end of that six month period.

(7) 45This section has effect subject to any provision in Tribunal rules
which defers the date on which the limitation or prescriptive period
begins in relation to claims in proceedings under section 47A or in
collective proceedings.”

(2) Section 47E of the Competition Act 1998 does not apply in relation to claims
50arising before the commencement of this paragraph.

9 (1) Section 49 (further appeals) is amended in accordance with this paragraph.

(2) In subsection (1)—

(a) at the end of paragraph (a) insert “and”, and

(b) omit paragraph (b) and the “and” at the end of that paragraph.

(3) 5After subsection (1) insert—

“(1A) An appeal lies to the appropriate court on a point of law arising from
a decision of the Tribunal in proceedings under section 47A or in
collective proceedings—

(a) as to the award of damages or other sum (other than a
10decision on costs or expenses), or

(b) as to the grant of an injunction.

(1B) An appeal lies to the appropriate court from a decision of the
Tribunal in proceedings under section 47A or in collective
proceedings as to the amount of an award of damages or other sum
15(other than the amount of costs or expenses).

(1C) An appeal under subsection (1A) arising from a decision in respect
of a stand-alone claim may include consideration of a point of law
arising from a finding of the Tribunal as to an infringement of a
prohibition listed in section 47A(2).

(1D) 20In subsection (1C) “a stand-alone claim” is a claim—

(a) in respect of an alleged infringement of a prohibition listed in
section 47A(2), and

(b) made in proceedings under section 47A or included in
collective proceedings.”

(4) 25In subsection (2)(a), at the beginning insert “except as provided by
subsection (2A),”.

(5) After subsection (2) insert—

“(2A) An appeal from a decision of the Tribunal in respect of a claim
included in collective proceedings may be brought only by the
30representative in those proceedings or by a defendant to that claim.”

10 (1) After section 49 insert—

“Settlements relating to infringements of competition law

49A Collective settlements: where a collective proceedings order has been
made

(1) 35The Tribunal may, in accordance with this section and Tribunal
rules, make an order approving the settlement of claims in collective
proceedings (a “collective settlement”) where—

(a) a collective proceedings order has been made in respect of the
claims, and

(b) 40the Tribunal has specified that the proceedings are opt-out
collective proceedings.

(2) An application for approval of a proposed collective settlement must
be made to the Tribunal by the representative and the defendant in
the collective proceedings.

(3) The representative and the defendant must provide agreed details of
the claims to be settled by the proposed collective settlement and the
proposed terms of that settlement.

(4) Where there is more than one defendant in the collective
5proceedings, “defendant” in subsections (2) and (3) means such of
the defendants as wish to be bound by the proposed collective
settlement.

(5) The Tribunal may make an order approving a proposed collective
settlement only if satisfied that its terms are just and reasonable.

(6) 10On the date on which the Tribunal approves a collective settlement—

(a) if the period within which persons may opt out of or (in the
case of persons not domiciled in the United Kingdom) opt in
to the collective proceedings has expired, subsections (8) and
(10) apply so as to determine the persons bound by the
15settlement;

(b) if that period has not yet expired, subsections (9) and (10)
apply so as to determine the persons bound by the
settlement.

(7) If the period within which persons may opt out of the collective
20proceedings expires on a different date from the period within which
persons not domiciled in the United Kingdom may opt in to the
collective proceedings, the references in subsection (6) to the expiry
of a period are to the expiry of whichever of those periods expires
later.

(8) 25Where this subsection applies, a collective settlement approved by
the Tribunal is binding on all persons falling within the class of
persons described in the collective proceedings order who—

(a) were domiciled in the United Kingdom at the time specified
for the purposes of determining domicile in relation to the
30collective proceedings (see section 47B(11)(b)(i)) and did not
opt out of those proceedings, or

(b) opted in to the collective proceedings.

(9) Where this subsection applies, a collective settlement approved by
the Tribunal is binding on all persons falling within the class of
35persons described in the collective proceedings order.

(10) But a collective settlement is not binding on a person who—

(a) opts out by notifying the representative, in a manner and by
a time specified, that the claim should not be included in the
collective settlement, or

(b) 40is not domiciled in the United Kingdom at a time specified,
and does not, in a manner and by a time specified, opt in by
notifying the representative that the claim should be
included in the collective settlement.

(11) This section does not affect a person’s right to offer to settle opt-in
45collective proceedings.

(12) In this section and in section 49B, “specified” means specified in a
direction made by the Tribunal.”

(2) Section 49A of the Competition Act 1998 applies to claims arising before the
commencement of this paragraph as it applies to claims arising after that
time.

11 (1) After section 49A (inserted by paragraph 10) insert—

“49B 5Collective settlements: where a collective proceedings order has not
been made

(1) The Tribunal may, in accordance with this section and Tribunal
rules, make an order approving the settlement of claims (a “collective
settlement”) where—

(a) 10a collective proceedings order has not been made in respect
of the claims, but

(b) if collective proceedings were brought, the claims could be
made at the commencement of the proceedings (disregarding
any limitation or prescriptive period applicable to a claim in
15collective proceedings).

(2) An application for approval of a proposed collective settlement must
be made to the Tribunal by—

(a) a person who proposes to be the settlement representative in
relation to the collective settlement, and

(b) 20the person who, if collective proceedings were brought in
respect of the claims, would be a defendant in those
proceedings (or, where more than one person would be a
defendant in those proceedings, such of those persons as
wish to be bound by the proposed collective settlement).

(3) 25The persons applying to the Tribunal under subsection (2) must
provide agreed details of the claims to be settled by the proposed
collective settlement and the proposed terms of that settlement.

(4) The Tribunal may make an order approving a proposed collective
settlement (see subsection (8)) only if it first makes a collective
30settlement order.

(5) The Tribunal may make a collective settlement order only—

(a) if it considers that the person described in subsection (2)(a) is
a person who, if the order were made, the Tribunal could
authorise to act as the settlement representative in relation to
35the collective settlement in accordance with subsection (7),
and

(b) in respect of claims which, if collective proceedings were
brought, would be eligible for inclusion in the proceedings
(see section 47B(6)).

(6)
40A collective settlement order must include the following matters—

(a) authorisation of the person described in subsection (2)(a) to
act as the settlement representative in relation to the
collective settlement, and

(b) description of a class of persons whose claims fall within
45subsection (5)(b).

(7) The Tribunal may authorise a person to act as the settlement
representative in relation to a collective settlement—

(a) whether or not that person is a person falling within the class
of persons described in the collective settlement order for that
settlement, but

(b) only if the Tribunal considers that it is just and reasonable for
5that person to act as the settlement representative in relation
to that settlement.

(8) Where the Tribunal has made a collective settlement order, it may
make an order approving a proposed collective settlement only if
satisfied that its terms are just and reasonable.

(9) 10A collective settlement approved by the Tribunal is binding on all
persons falling within the class of persons described in the collective
settlement order.

(10) But a collective settlement is not binding on a person who—

(a) opts out by notifying the settlement representative, in a
15manner and by a time specified, that the claim should not be
included in the collective settlement, or

(b) is not domiciled in the United Kingdom at a time specified,
and does not, in a manner and by a time specified, opt in by
notifying the settlement representative that the claim should
20be included in the collective settlement.

(11) In this section, “settlement representative” means a person who is
authorised by a collective settlement order to act in relation to a
collective settlement.”

(2) Section 49B of the Competition Act 1998 applies to claims arising before the
25commencement of this paragraph as it applies to claims arising after that
time.

12 After section 49B (inserted by paragraph 11) insert—

“49C Approval of redress schemes by the CMA

(1) A person may apply to the CMA for approval of a redress scheme.

(2) 30The CMA may consider an application before the infringement
decision to which the redress scheme relates has been made, but may
approve the scheme only—

(a) after that decision has been made, or

(b) in the case of a decision of the CMA, at the same time as that
35decision is made.

(3) In deciding whether to approve a redress scheme, the CMA may take
into account the amount or value of compensation offered under the
scheme.

(4) An approved scheme may not be varied by the CMA or the
40compensating party.

(5) The Secretary of State may make regulations relating to the approval
of redress schemes, and the regulations may in particular—

(a) make provision as to the procedure governing an application
for approval of a redress scheme, including the information
45to be provided with the application;