Part I Competition

Chapter III Investigation and Enforcement

F1Civil sanctions: breaches of commitments, directions and interim measures

35BPenalties under section 35A: amount

(1)

A penalty under section 35A(1) is to be such amount as the CMA considers appropriate.

(2)

The amount must be—

(a)

a fixed amount,

(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)

A penalty imposed under section 35A(1) on a person who is not an undertaking must not—

(a)

in the case of a fixed amount, exceed £30,000;

(b)

in the case of an amount calculated by reference to a daily rate, exceed £15,000 per day;

(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.

(4)

A penalty imposed under section 35A(1) on a person who is an undertaking must not—

(a)

in the case of a fixed amount, exceed 5% of the total value of the turnover of the undertaking;

(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 of the undertaking;

(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.

(5)

In imposing a penalty by reference to a daily rate—

(a)

no account is to be taken of any days before the service on the person concerned of the provisional penalty notice under section 112(A1) of the Enterprise Act 2002 (as applied by subsection (6)), and

(b)

unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the day on which the person adheres to the commitments or complies with the direction (as the case may be) referred to in section 35A(1).

(6)

Sections 112 to 115 of the Enterprise Act 2002 apply in relation to a penalty imposed under section 35A(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 35C at the time when the act or omission concerned occurred.”

(7)

The Secretary of State may by regulations amend subsection (3)(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.

(8)

Before making regulations under subsection (7) the Secretary of State must consult—

(a)

the CMA, and

(b)

such other persons as the Secretary of State considers appropriate.

(9)

The Secretary of State may by regulations make provision for determining the turnover and daily turnover of an undertaking for the purposes of subsection (4).

(10)

Regulations under subsection (9) may, in particular, make provision as to—

(a)

the amounts which are, or which are not, to be treated as comprising an undertaking’s turnover or daily turnover;

(b)

the date, or dates, by reference to which an undertaking’s turnover, or daily turnover, is to be determined.

(11)

Regulations under subsection (9) may, in particular, make provision enabling the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (10)).