CMA powers of investigation of anti-competitive behaviour: OFT404
Describes the CMA's various powers to investigate suspected anti-competitive behaviour.
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We are consulting on a revised CMA8 guidance which proposes to incorporate material from, and to subsequently withdraw, OFT404.
This guidance was originally published by the Office of Fair Trading (OFT) and has been adopted by the CMA Board. The original text has been retained unamended, therefore it does not reflect or take account of developments in case law, legislation or practice since its original publication.
Please also note:
- all references to issues of legal assessment and procedure in investigations under the Competition Act 1998 (CA98) must be read in the light of Competition Act 1998: Guidance on the CMA’s investigation procedures in Competition Act 1998 cases (CMA8); in the case of conflict, CMA8 prevails
- references to ‘OFT Rules’, ‘Rules of Procedure’ or equivalent should be read as referring to The Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014 SI 2014/458 (the CA98 Rules) but note that in the case of any conflict between the Article numbers or content of the CA98 Rules and the previous OFT Rules, the CA98 Rules prevail
- references to the OFT or the Competition Commission (CC) (except where referring to specific past OFT or CC practice or case law) should be read as referring to the CMA
- references to the substantive powers of investigation or assessment of the approach to applying legal powers (for example, the approach to publishing notices of investigation, interim measures or penalties for non-cooperation with an investigation under the CA98), should be read in light of CMA8
- references to dishonesty in respect of the cartel offence are only relevant for cartels entered into prior to 1 April 2014. The Enterprise and Regulatory Reform Act 2013 (ERRA13) removes dishonesty as an element of the cartel offence for agreements entered into on or after 1 April 2014 or which relate to arrangements made or to be made on or after that date. The ERRA13 also introduces statutory exclusions and defences to the offence. Please refer to Cartel Offence Prosecution Guidance (CMA9) for further information.
- references to articles of the EC Treaty should be read as referring to the equivalent articles of the Treaty on the Functioning of the European Union
- certain OFT or CC departments, teams or individual roles may not be replicated in the CMA, or may have been renamed; the CMA’s structure is set out in our organisation chart
- do not use any contact details quoted; please go to the home page for details on how to contact the CMA
The fines that could be imposed on summary conviction for certain criminal offences referred to in this document were, at that time, subject to specific caps of £5,000 or above. With effect from 12 March 2015, these caps have been removed and those specific offences are now punishable by a fine of any amount. For more information see the Ministry of Justice news story.