Part 1Digital Markets

Chapter 3Conduct requirements

Final offer mechanism

39Collective submissions

(1)

Where the CMA considers that—

(a)

the conditions in section 38(2), (3) and (4) are met in relation to a single transaction between the designated undertaking and two or more third parties, and

(b)

the third parties are capable of acting jointly in relation to final offer payment terms relating to the transaction,

the CMA may exercise the power in section 38(1) to invite the third parties (the “joined third parties”) to make a single submission to the CMA of final offer payment terms that the joined third parties collectively regard as fair and reasonable for the transaction.

(2)

Where the CMA proceeds in reliance on subsection (1), sections 40 to 44 apply as if—

(a)

in section 40(8) references to “the third party” were to any one or more of the joined third parties;

(b)

all other references to “the third party” were to the joined third parties.

(3)

Where the CMA considers that—

(a)

the conditions in section 38(2), (3) and (4) are met in relation to two or more transactions between the designated undertaking and two or more third parties,

(b)

the same terms as to payment are capable of applying to the transactions, and

(c)

the third parties are capable of acting jointly in relation to final offer payment terms relating to the transactions,

the CMA may exercise the power in section 38(1) to invite the third parties (the “grouped third parties”) to make a single submission to the CMA of final offer payment terms that the grouped third parties collectively regard as fair and reasonable for the transactions (the “grouped transactions”).

(4)

Where the CMA proceeds in reliance on subsection (3), sections 40 to 44 apply as if—

(a)

in the following provisions, references to “the third party” were to any one or more of the grouped third parties—

(i)

section 40(8);

(ii)

section 41(2)(b);

(iii)

section 42(1)(b);

(iv)

section 43(2);

(b)

all other references to “the third party” were to the grouped third parties;

(c)

in section 43(1) and (2), the reference to “the transaction” were to any one or more of the grouped transactions;

(d)

all other references to “the transaction” were to the grouped transactions.