Section 40A Penalties: amountF1 F18

United Kingdom

(F21A)

A penalty imposed under section 40ZE(1) is to be of such amount as the CMA considers appropriate.

(2)

F3A penalty imposed under section 40ZE(1)(a) may 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.

(F42A)

A penalty imposed under any of section 40ZE(1)(b) to (e) must be a fixed amount.

(3)

F5A penalty imposed under section 40ZE(1) on a person who is not an undertaking must not—

(a)

in the case of a fixed amount, exceed F6£30,000;

(b)

in the case of an amount calculated by reference to a daily rate, exceed F7£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 F8....

(F93A)

A penalty imposed under section 40ZE(1) on a person who is an undertaking must not—

(a)

in the case of a fixed amount, exceed 1% of the turnover of the undertaking;

(b)

in the case of an amount calculated by reference to a daily rate, for each day exceed 5% of the daily turnover of the undertaking;

(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.

F10(4)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)

In imposing a penalty by reference to a daily rate—

(a)

no account is to be taken of any days before the service of the F11provisional penalty notice under section 112(A1) of the Enterprise Act 2002 (as applied by F12section 40ZE(5)) on the person concerned, 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 earliest of the days mentioned in subsection (7).

(7)

The days are—

(a)

the day on which the requirement concerned is satisfied;

(b)

the day on which the CMA makes a decision (within the meaning given by section 31(2)) or terminates the investigation in question without making such a decision;

(c)

if the Secretary of State has made an order under section 31F(1)(b) imposing a time-limit on the making of such a decision, the latest day on which such a decision may be made as a result of the investigation in question;

(F13d)

in a case where the requirement was imposed in connection with the provision by the CMA of assistance to an overseas regulator (see Chapter 2 of Part 5 of the Digital Markets, Competition and Consumers Act 2024), the day on which the overseas regulator no longer requires that assistance.

(F147A)

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 F15regulations under subsection (7A), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.

F16(9)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(F1710)

The Secretary of State may by regulations make provision for determining the turnover and daily turnover of an undertaking for the purposes of this section.

(11)

Regulations under subsection (10) may, in particular, make provision as to—

(a)

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

(b)

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

(12)

Regulations under subsection (10) may, in particular, make provision enabling the CMA to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (11)).

Annotations

Textual amendments

F1: Ss. 40A, 40B and cross-heading 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. 40(2), 103(1)(i)(3); S.I. 2014/416, art. 2(1)(b) (with Sch.)
F2: S. 40A(1A) substituted for s. 40A(1) (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. 10 para. 9(3); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F3: Words in s. 40A(2) substituted (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. 10 para. 9(4); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F4: S. 40A(2A) inserted (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. 10 para. 9(5); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F5: Words in s. 40A(3) substituted (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. 10 para. 9(6)(a); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F6: Sum in S. 40A(3)(a) substituted (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. 10 para. 9(6)(b); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F7: Sum in S. 40A(3)(b) substituted (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. 10 para. 9(6)(c); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F8: Words in s. 40A(3)(c) omitted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 10 para. 9(6)(d); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F9: S. 40A(3A) inserted (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. 10 para. 9(7); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F10: S. 40A(4)(5) omitted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 10 para. 9(8); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F11: Words in s. 40A(6)(a) substituted (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. 10 para. 9(9)(a); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F12: Words in s. 40A(6)(a) substituted (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. 10 para. 9(9)(b); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F13: S. 40A(7)(d) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 28 para. 11; S.I. 2024/1226, regs. 1(2), 2(1)(20)
F14: S. 40A(7A) inserted (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. 10 para. 9(10); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F15: Words in s. 40A(8) substituted (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. 10 para. 9(11); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F16: S. 40A(9) omitted (24.5.2024 for specified purposes, 1.1.2025 in so far as not already in force) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(2)(c), Sch. 10 para. 9(12); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F17: S. 40A(10)-(12) inserted (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. 10 para. 9(13); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)
F18: Word in s. 40A heading substituted (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. 10 para. 9(2); S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(3), 20)

Notes on the whole Act

Textual amendments

F1: Words in long title substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), Sch. 1 para. 1

Notes on Part I

Modifications

C1

Pt. 1: certain functions made exercisable concurrently (26.11.1998 for certain purposes and prosp. otherwise) by 1984 c. 12, s. 50(3) (as substituted by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 2(6) (with s. 73); S.I. 1998/2750, art. 2)

C2

Pt. 1 (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, ss. 86(1)(3), 89 (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1

C3

Pt. 1 (except ss. 38(1)-(6), 51, 52(6) and (8) and 54) amended (1.2.2001) by 2000 c. 38, s. 86(4)(b)(5) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1

Pt. 1 (except ss. 38(1)-(6), 51) amended (1.2.2001) by 2000 c. 38, s. 86(7)(b) (with ss. 105(2)(d)(5), 106); S.I. 2001/57, art. 3(1), Sch. 2 Pt. 1

C4

Pt. 1 modified (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), ss. 371(3), 411(2) (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2) (with art. 11)

C5

Pt. 1 certain functions made exercisable concurrently by 1998 c. 41, s. 67(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 6(2)(a))

C6

Pt. 1 certain functions made exercisable concurrently by 1991 c. 56, s. 31(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 4(2)(a))

C7

Pt. 1 certain functions made exercisable concurrently by S.I. 1992/231 (N.I. 1) art. 46(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 5(2)(a))

C8

Pt. 1 certain functions made exercisable concurrently by 1986 c. 44, s. 36A(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(a))

C9

Pt. 1 restricted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), regs. 1(a), 9(2)

C10

Pt. 1 certain functions made exercisable concurrently by 1989 c. 29, s. 43(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(a))

C11

Pt. 1 certain functions made exercisable concurrently by S.I. 1996/275 (N.I. 2), art. 23(3) (as substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 9(2)(a))

C12

Pt. 1 certain functions made exercisable concurrently (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(3) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)

C13

Pt. 1 modified (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336), arts. 1(2), 29(5) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)

C14

Pt. 1 modified (1.4.2013) by Health and Social Care Act 2012 (c. 7), ss. 72(3), 306(4); S.I. 2013/160, art. 2(2) (with arts. 7-9)

C15

Pt. 1 functions made exercisable concurrently (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 62(1)-(3), 110(1) (with s. 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)

C16

Pt. 1 modified in part (6.4.2013) by Civil Aviation Act 2012 (c. 19), ss. 62(4), 110(1) (with ss. 62(5), 77(1)-(3), Sch. 10 paras. 12, 17); S.I. 2013/589, art. 2(1)-(3)

C17

Pt. 1 certain functions made exercisable concurrently by 2000 c. 8, s. 234J (as inserted (1.11.2014 for specified purposes, 1.4.2015 so far as not already in force) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 8 para. 3; S.I. 2014/2458, arts. 2(b)(aa)(i), 3(b)(v))

C18

Pt. 1 certain functions made exercisable concurrently (1.11.2014 for specified purposes, 1.4.2015 so far as not already in force) by Financial Services (Banking Reform) Act 2013 (c. 33), ss. 61(2), 148(5); S.I. 2014/2458, arts. 2(a)(i), 3(b)(ii)

C19

Pt. 1: certain functions made exercisable concurrently (26.12.2023) by Energy Act 2023 (c. 52), ss. 37, 334(3)(a) (with s. 38)

C20

Pt. 1: certain functions made exercisable concurrently (E.W.S.) (27.1.2026 for specified purposes) by The Heat Networks (Market Framework) (Great Britain) Regulations 2025 (S.I. 2025/269), regs. 1(4)(5), 46(2)(a)

C21

Pt. 1 modified (27.1.2026 for specified purposes) (E.W.S.) by The Heat Networks (Market Framework) (Great Britain) Regulations 2025 (S.I. 2025/269), regs. 1(4)(5), 46(3)(a)

Notes on Chapter III

Modifications

C1: Pt. 1 Ch. 3 applied in part (31.10.2023) by The Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023 (S.I. 2023/80), arts. 1(3), 22

Notes on Civil sanctions: failure to comply with investigative requirements

Textual amendments

F2: S. 40A cross-heading substituted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 10 para. 7; S.I. 2024/1226, regs. 1(2), 2(1)(14)

Section 40A Penalties: amountF1F18

Annotations

Textual amendments

Notes on the whole Act

Textual amendments

Notes on Part I

Modifications

Notes on Chapter III

Modifications

Notes on Civil sanctions: failure to comply with investigative requirements

Textual amendments

Section 40A Penalties: amountF1 F18