Part 4

Market Studies and Market Investigations
Chapter 1

Market Studies and market investigation references

Determination of references

Duty to remedy adverse effects
138
1
Subsection (2) applies where a report of the CMA has been prepared and published under section 136 within the period permitted by section 137 and contains the decision that there is one or more than one adverse effect on competition.
2
The CMA shall, within the period permitted by section 138A, in relation to each adverse effect on competition, take such action under section 159 or 161 as it considers to be reasonable and practicable—
a
to remedy, mitigate or prevent the adverse effect on competition concerned; and
b
to remedy, mitigate or prevent any detrimental effects on customers so far as they have resulted from, or may be expected to result from, the adverse effect on competition.
3
The decisions of the CMA under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 134(4) unless there has been a material change of circumstances since the preparation of the report or the CMA otherwise has a special reason for deciding differently.
4
In making a decision under subsection (2), the CMA shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned and any detrimental effects on customers so far as resulting from the adverse effect on competition.
5
In making a decision under subsection (2), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned.
6
The CMA shall take no action under subsection (2) to remedy, mitigate or prevent any detrimental effect on customers so far as it may be expected to result from the adverse effect on competition concerned if—
a
no detrimental effect on customers has resulted from the adverse effect on competition; and
b
the adverse effect on competition is not being remedied, mitigated or prevented.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1988 c. 41, Sch. 7 para. 20(5)-(8) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, Sch. 11 para. 11(3); S.I. 2003/1397, art. 2(1), Sch. (with art. 8)
Pt. 4 (ss. 131-184) modified (20.6.2003) by S.I. 1996/275 (N.I. 2), art. 23(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 22(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1993 c. 43, s. 67(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 21(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by S.I. 1992/231 (N.I. 1), art. 46(2A)(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 20(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1991 c. 56, s. 31(4) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(3)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1991 c. 56, s. 31(2A) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1984 c. 12, s. 50(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 16(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (20.6.2003) by 1989 c. 29, s. 43(2B) (as substituted by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 18(2)); S.I. 2003/1397, art. 2(1), Sch.
Pt. 4 (ss. 131-184) modified (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 370(3), 411(2)(3) (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(2)
Pt. 4 (ss. 131-184) modified (N.I.) (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2)(3), 29(4) (with arts. 8(9), 121, 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)
Pt. 4 modified (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 73(3), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)
Pt. 4 functions made exercisable concurrently (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 60(2), 110(1) (with s. 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)
Pt. 4 modified in part (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 60(3), 110(1) (with ss. 60(4), 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)
Pt. 4 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 57; S.I. 2014/416, art. 2(1)(c) (with Sch.)
Pt. 4 certain functions made exercisable concurrently (1.4.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 59(1)-(5), 148(5); S.I. 2014/823, art.
Pt. 4 modified by 1986 c. 44, s. 36A (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(d) (with art. 3))
Pt. 4 modified by 1989 c. 29, s. 43(2B) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 65(4)(d) (with art. 3))
Pt. 4 modified by 1991 c. 56, s. 31(4) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 84(5)(d) (with art. 3))
Pt. 4 modified by 1993 c. 43, s. 67(4)(d) (as amended (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 105(4)(d) (with art. 3))
Pt. 4 modified by 2000 c. 38, s. 86(4A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 154(6) (with art. 3))
Pt. 4 modified by 2012 c. 7, s. 73(3)(b) (as substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 189(4)(c) (with art. 3))
Pt. 4 modified by 2012 c. 19, s. 60(3A) (as inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 197(5) (with art. 3))
Words in Pt. 4 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 8; S.I. 2014/416, art. 2(1)(d) (with Sch.)
Words in Pt. 4 Ch. 1 heading inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 9; S.I. 2014/416, art. 2(1)(d) (with Sch.)
Word in s. 138(1)-(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (2013 c. 24), s. 26(3), Sch. 5 para. 171 (with s. 28); S.I. 2014/416, art. 2(1)(d) Sch.
Words in s. 138(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 12 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)
Words in s. 138(5) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 9 para. 4; S.I. 2014/416, art. 2(1)(d) (with Sch.)
Pt. 4: certain functions made exercisable concurrently (26.12.2023) by Energy Act 2023 (c. 52), ss. 36(1)-(3), 334(3)(a) (with s. 38)