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Digital Markets, Competition and Consumers Act 2024

Contents

Territorial extent and application

  1. Section 338 sets out the territorial extent of the Digital Markets, Competition and Consumers Act, that is the jurisdictions which the Act forms part of the law of. The extent of an Act can be different from its application. Application is about where an Act produces a practical effect rather than where it forms part of the law. The Digital Markets, Competition and Consumers Act extends and applies to the whole of the United Kingdom. Repeals and amendments made by the Act have the same territorial extent as the legislation that they are repealing or amending.
  2. Consumer protection and its enforcement is a transferred matter in Northern Ireland and provisions in Parts 3, 4 and 5 are within the legislative competence of the Northern Ireland Assembly.
  3. The Act provides for varying degrees of extraterritorial application in different areas and in relation to the different powers and sanctions it contains. Extra-territorial application is necessary in order to fulfil the Act’s aim of protecting competition in markets within the UK, and UK consumers, and ensuring the regulators responsible for the enforcement of the relevant regimes have the powers they need to fulfil their functions. Details for particular parts of the Act are set out below:
    • In relation to Part 1 of the Act, section 2 gives the CMA the power to designate an undertaking as having Strategic Market Status in respect of a digital activity carried out by that undertaking. An undertaking will only be able to be so designated where the CMA considers that the digital activity is linked to the UK. Section 4 sets the criteria for assessing whether a digital activity is so linked to the UK.
    • Section 111(1) makes provision so that unless stated otherwise, Part 1 of the Act applies in relation to persons outside the United Kingdom. Section 111(2) to (6) make provision regarding the ability to give notices (which include notices requiring the provision of information to the CMA for the purposes of Part 1) under Part 1 to a person outside the UK. Section 97 sets out limits to the extra-territorial jurisdiction applied in section 111 in relation to offences.
    • In relation to Part 2 of the Act, section 119 makes provision which extends the extra-territorial reach of the prohibition against anti-competitive agreements etc., set out at section 2 of the Competition Act 1998 so that it applies to agreements etc. which are likely to have a substantial, immediate and foreseeable effect on trade within the UK, even if such agreements were implemented outside the UK.
    • Section 144 and Schedule 13 make provision which amends the Competition Act 1998 and Enterprise Act 2002 to set out the circumstances in which information notices may be given to persons outside the United Kingdom.
    • In relation to Part 3 of the Act, section 148 makes provision in relation to a relevant infringement, that is a commercial practice which harm the collective interests of consumers, meets the UK connection test, and meets the specified prohibition condition, and which are then in scope for the court-based enforcement regime and new CMA direct enforcement regime set out in Part 3.
    • Section 160 makes provision regarding the persons outside the UK in relation to whom a public designated enforcer can make an application to the court for online interface order and section 184 makes provision regarding the direct enforcement powers of the CMA to give an online interface notice to persons outside the UK.
    • In relation to Part 4 of the Act, in particular sections 148 to 150 (in Part 3) ensure that the prohibitions on unfair commercial practices set out in Chapter 1 of Part 4, the consumer savings protections in Chapter 3 of Part 4 and the consumer protections provided by the alternative dispute resolution provisions in Chapter 4 of Part 4, can be enforced under Part 3 in the case that traders outside the UK target consumers in the UK.
    • In addition, section 275 makes provision so that the new duties on traders and consumer rights in relation to subscription contracts set out in Chapter 2 of Part 4 applies to contracts that apply another law but which have a close connection with the UK.
    • Section 208 and Schedule 17 make provision which amends Schedule 5 to the Consumer Rights Act 2015, including to set out the circumstances in which information notices may be given to persons outside the United Kingdom.

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