Part 4Market Studies and Market Investigations

Chapter 3Enforcement

F1Undertakings in lieu

154AUndertakings fully or partially in lieu of references or reports

(1)

This section applies where—

(a)

no market study notice has been published under section 130A but the CMA considers that it has the power to make a market investigation reference under section 131 and (subject to taking action under this section) intends to make such a reference,

(b)

a market study notice has been published under section 130A but no market investigation reference has been made under section 131, or

(c)

a market investigation reference has been made under section 131 or 132 but no report under section 136 has been published.

(2)

The CMA may accept, from such persons as it considers appropriate, undertakings to take such action as it considers appropriate for the purposes of remedying, mitigating or preventing (to any extent)—

(a)

any adverse effect on competition concerned, or

(b)

any detrimental effect on customers so far as—

(i)

it has resulted from the adverse effect on competition, or

(ii)

it may be expected to result from the adverse effect on competition.

(3)

An undertaking under this section is known as—

(a)

an “undertaking in lieu of a reference” where it is accepted in circumstances where this section applies by virtue of subsection (1)(a) or (b);

(b)

an “undertaking in lieu of a report” where it is accepted in circumstances where this section applies by virtue of subsection (1)(c).

(4)

The CMA may accept—

(a)

undertakings in lieu of a reference either—

(i)

instead of making a reference under section 131 (in which case the undertakings are known as “undertakings fully in lieu of a reference”), or

(ii)

in addition to making a reference under that section (in which case the undertakings are known as “undertakings partially in lieu of a reference”);

(b)

undertakings in lieu of a report either—

(i)

instead of publishing a report under section 136 (in which case the undertakings are known as “undertakings fully in lieu of a report”), or

(ii)

in addition to publishing a report under that section (in which case the undertakings are known as “undertakings partially in lieu of a report”).

(5)

In accepting undertakings fully in lieu of a reference or undertakings fully in lieu of a report, the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to—

(a)

the adverse effect on competition concerned, and

(b)

any detrimental effects on customers so far as resulting from the adverse effect on competition.

(6)

In accepting an undertaking under this section, 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.

(7)

Where no detrimental effect on customers has yet resulted from an adverse effect on competition, the CMA may not accept an undertaking under this section to remedy, mitigate or prevent a detrimental effect on customers so far as it may be expected to result from that adverse effect on competition unless the adverse effect on competition is also being remedied, mitigated or prevented (whether or not by the same undertaking).

(8)

An undertaking under this section—

(a)

comes into force when accepted;

(b)

may be varied or superseded by another undertaking;

(c)

may be released by the CMA.

(9)

The CMA must, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

(10)

This section is subject to sections 150 and 155.