OpenLegislation

Section 40ZE Enforcement of requirements: imposition of penaltiesF1F2

(1)

The CMA may impose a penalty on a person in accordance with section 40A where the CMA considers that—

(a)

the person has, without reasonable excuse, failed to comply with a requirement imposed on the person F3by section 25B or under section 26, 26A, 27, 28, 28A or 40ZD;

(b)

the person has, without reasonable excuse, obstructed an officer acting in the exercise of the officer’s powers under section 27 or under a warrant issued under section 28 or 28A;

(c)

the person, having been required to produce a document under section 26, 27, 28 or 28A, has, without reasonable excuse—

(i)

destroyed or otherwise disposed of, falsified or concealed the document, or

(ii)

caused or permitted the document’s destruction, disposal, falsification or concealment;

(d)

the person has, without reasonable excuse, provided information that was false or misleading in a material particular to the CMA in connection with any function of the CMA under this Part;

(e)

the person has, without reasonable excuse, provided information that was false or misleading in a material particular to another person knowing that the information was to be used for the purpose of providing information to the CMA in connection with any function of the CMA under this Part.

(2)

But the CMA may not proceed against a person under this section in relation to an act or omission which constitutes an offence under any of sections 42 to 44 if the person has, by reason of that act or omission, been found guilty of that offence.

(3)

In deciding whether and, if so, how to proceed under subsection (1) the CMA must have regard to the statement of policy which was most recently published under section 40B at the time when the act or omission concerned occurred.

(4)

In this section—

(a)

the reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form;

(b)

the reference to concealing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(5)

Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) or (1A) of that Act, with the following modifications—

(a)

any reference in those provisions to the appropriate authority is to be read as a reference to the CMA only;

(b)

section 114(5A) is to be read as if the words “In the case of a penalty imposed on a person by the CMA 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 40B of the 1998 Act at the time when the act or omission concerned occurred.”

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. 40ZE inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 10 para. 8; S.I. 2024/1226, regs. 1(2), 2(1)(14) (with Sch. paras. 13(1)(2), 20)

F3

Words in s. 40ZE(1)(a) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), ss. 121(3), 339(1); S.I. 2024/1226, regs. 1(2), 2(1)(2)

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)