Part 1

Digital Markets
Chapter 3

Conduct requirements

Final offer mechanism

Final offer mechanism
40
1
The power conferred by section 38(1) is to be exercised by giving a notice (a “final offer initiation notice”) to the designated undertaking and the third party.
2
The final offer initiation notice must—
a
specify the designated undertaking, the third party and the digital activity in respect of which the power is being exercised;
b
describe the breach of the enforcement order in relation to which the second condition in section 38 is met;
c
summarise the transaction;
d
specify a date (the “submission date”) on or before which final offer payment terms are to be submitted to the CMA;
e
state the period by the end of which the CMA must make any final offer order (see section 41(3));
f
state the circumstances in which that period may be extended (see section 104).
3
As soon as reasonably practicable after giving a final offer initiation notice, the CMA must publish a statement which—
a
includes the information mentioned in subsection (2), and
b
if the CMA is considering taking any other action relating to any underlying cause of the breach of the enforcement order, includes a summary of, and explanation for considering, that action.
4
After giving a final offer initiation notice, the CMA may—
a
change its view of the transaction or the third party, provided that the new transaction or third party remains substantially the same as the previous transaction or third party,
b
revise any list of joined third parties or grouped third parties, or
c
change the submission date.
5
The powers conferred by subsection (4) are to be exercised by giving a revised version of the final offer initiation notice to the designated undertaking and the third party.
6
Where the power conferred by subsection (4)(b) is being exercised, the reference in subsection (5) to “the third party” includes each person that was a joined third party or a grouped third party prior to the exercise of the power or that is to be a joined third party or a grouped third party after the exercise of the power.
7
As soon as reasonably practicable after giving a revised version of a final offer initiation notice, the CMA must publish a statement summarising the contents of the revised notice.
8
To facilitate the submission of final offer payment terms, the CMA may (among other things)—
a
use an information notice to require that the designated undertaking or the third party give information to the CMA (see section 69);
b
share information between the designated undertaking and the third party in accordance with section 241 of EA 2002 (statutory functions);
c
specify the form or manner in which final offer payment terms must be submitted.
S. 40 not in force at Royal Assent, see s. 339(1)
S. 40 in force at 1.1.2025 by S.I. 2024/1226, regs. 1(2), 2(1)(2)