The Competition and Markets Authority (“CMA”) has extended the deadline to respond to its consultation on draft guidance and rules for the exercise of the new direct enforcement powers granted to it under the Digital Markets, Competition and Consumers Act 2024 (“DMCCA”).

As we have discussed elsewhere, the DMCCA grants the CMA new powers to investigate and take enforcement action directly to address, among other things, infringements of certain consumer protection laws, breaches of undertakings given to the CMA, and breaches of CMA direct enforcement directions. Under the Act, the CMA is required to prepare and publish guidance about its general approach to the carrying out of its direct consumer enforcement functions, and the consultation sets out such guidance in draft form. Following responses from consultees, it will be finalised before being sent to the Secretary of State for approval, and then kept under review. The same is true of draft procedural rules which are also included in the consultation.

The draft guidance comprises some 127 pages, separated by chapters which cover in detail subjects including:

1. How parties can expect investigations of alleged consumer law infringements to proceed under the direct consumer enforcement regime. This includes setting out the process that the CMA will follow, from its initial investigation and ‘pre-launch’ intelligence gathering, through to the possible issuing of a provisional infringement notice, and reaching a final decision;
2. The CMA’s approach to using its powers to obtain information by written notice to investigate alleged substantive infringements. The draft guidance explains that information notices will specify the purpose for which the information is required, the deadline for, and manner of, compliance, and the form in which the information must be provided;
3. The CMA’s approach to, and process for, accepting undertakings or agreeing settlements with parties to resolve its investigations of alleged substantive infringements. The draft guidance sets out that the CMA will have a broad discretion in determining which cases are suitable for undertakings (and whether to accept them), and equally will have discretion whether to settle, taking into account factors such as “the likely procedural efficiencies and resource savings that can be achieved”;
4. How the CMA may approach its selection of remedies for substantive infringements, including the imposition of directions and Enhanced Consumer Measures;
5. How the CMA may approach the enforcement of compliance with undertakings, directions, and information gathering requirements. The draft guidance also sets out the factors that will be relevant to the recovery of outstanding penalties and court enforcement of directions; and
6. The CMA’s statement of policy in relation to the exercise of its powers to impose monetary penalties, explaining that the starting point will be that the CMA will determine “the seriousness of the infringement, and the relevant infringement category, by reference to the harm caused by the infringement, or the risk of harm from the infringement, and the culpability of the party”.

The deadline for responding to the Consultation has been extended to 18 September. To read more, click here.