Part 4Market Studies and Market Investigations

Chapter 3Enforcement

Supplementary

F1167BPenalties under section 167A: amount

(1)

A penalty under section 167A(1) is to be such amount as the relevant authority 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 167A(1) on a person who does not own or control an enterprise 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 167A(1) on any other person must not—

(a)

in the case of a fixed amount, exceed 5% of the total value of the turnover (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;

(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 (both in and outside the United Kingdom) of the enterprises owned or controlled by the person on whom it is imposed;

(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) (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 complies with

F2(i)

the enforcement undertaking or enforcement order F3, or

(ii)

the undertaking accepted, or order made, under section 161C.

(6)

Sections 112 to 115 apply in relation to a penalty imposed under section 167A(1) as they apply in relation to a penalty imposed under section 110(1) or (1A), with the following modifications—

(a)

any reference in those provisions to the appropriate authority is to be read as a reference to the relevant authority within the meaning of this section (see section 167A(2));

(b)

section 114(5A) is to be read as if the words “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 167C 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, for the purposes of this section—

(a)

when an enterprise is to be treated as being controlled by a person;

(b)

the turnover and daily turnover (both in and outside the United Kingdom) of an enterprise.

(10)

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

(a)

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

(b)

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

(11)

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