Part 3

Mergers
Chapter 4

Enforcement

Other

Penalties under section 94AA: amount
94AB
1
A penalty under
section 94AA
(1)
is to be such amount as the appropriate 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 94AA
(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 94AA
(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 the enforcement undertaking or enforcement order.
6
Sections 112 to 115 apply in relation to a penalty imposed under
section 94AA
(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 appropriate authority within the meaning of this section (see
section 94AA
(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 94B 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 appropriate 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)
).
Pt. 3 (ss. 22-130) modified (20.6.2003) by 1998 c. 41, Sch. 7 para. 20(3) (as substituted by Enterprise Act 2002 (c. 40), ss. 185, 279, {Sch. 11 para. 11(2)-(4)(8)}; S.I. 2003/1397, art. 2(1), Sch. (with art. 8)
Pt. 3 excluded in part (29.9.2008) by The Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008 (S.I. 2008/2546), arts. 1(2), 40
Pt. 3 modified (1.7.2012) by Health and Social Care Act 2012 (c. 7), ss. 79, 306(4); S.I. 2012/1319, art. 2(3)
Ss. 94A, 94B inserted (25.4.2013 for specified purposes, 1.4.2014 in so far as not already in force) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 31(1), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
Pt. 3 modified (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 4 para. 56; S.I. 2014/416, art. 2(1)(c) (with Sch.)
Pt. 3 modified (31.12.2020) by The Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), reg. 1(1), Sch. 4 paras. 28-33; 2020 c. 1, Sch. 5 para. 1(1)
Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56A(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(2)(f), 36(2))
Pt. 3 excluded (28.6.2022) by 1992 c. 13, s. 56E(9B) (as inserted (E.W.) by Skills and Post-16 Education Act 2022 (c. 21), ss. 23(3)(f), 36(2))
Pt. 3 modified (1.7.2022) by 2006 c. 41, s. 72A (as inserted by Health and Care Act 2022 (c. 31), ss. 83(1), 186(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30))
Pt. 3 applied (with modifications) (29.12.2004) by Water Industry Act 1991 (c. 56), Sch. 4ZA paras. 1, 2 (as inserted by Enterprise Act 2002 (c. 40), ss. 70(2), 279, Sch. 6); S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)
Pt. 3 (ss. 22-130) applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17M(4) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
Pt. 3 applied (1.10.2005) by Water Industry Act 1991 (c. 56), s. 17Q(9) (as inserted by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2); S.I. 2005/2714, art. 2(h) (with Sch. para. 5)
Pt. 3 applied in part (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), 23(4), 27(9); S.R. 2007/194, art. 2(2), Sch. 1 Pt. 2 (with Sch. 2)
Pt. 3 modified (E.W.) (29.12.2004) by The Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202), regs. 2-35 (as amended (1.4.2014) by S.I. 2014/549, art. 1(1), Sch. 1 para. 22 (with art. 3); (18.12.2015) by S.I. 2015/1936, regs. 1, 3-20; (6.12.2023) by S.I. 2023/1185, arts. 1(2), 9-27); and (23.8.2024) by S.I. 2024/840, regs. 1(1), 3-7; and (1.1.2025) by S.I. 2024/1234, regs. 1(1), 3-10 (with reg. 11))
Ss. 94AA, 94AB substituted for s. 94A (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 11 para. 11; S.I. 2024/1226, regs. 1(2), 2(1)(15) (with Sch. paras. 16(2)(3)(7), 20)