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Annex 1 - Template set of draft Terms of Reference for Sub-Committees of the DMBC (to be used for those Sub-Committees established to deal with digital enforcement matters/decisions)

Published 25 July 2024

Purpose

1 . The purpose of the [X] Sub-Committee (“the Sub-Committee”) is to take decisions as delegated by the Digital Markets Board Committee (“DMBC”) on certain non-reserved digital markets functions under the Enterprise and Regulatory Reform Act 2013 (“ERRA13”), Schedule 4, Part 2, paragraph 29 (2A) as inserted by the Digital Markets, Competition and Consumers Act 2024 (the “Act”). Any such delegated decision making is limited to taking (i) enforcement decisions in relation to Schedule 4, Part 2, paragraph 29 (2A)(e), (f), (g), (l) and (m) of ERRA13, (ii) breach decisions, and (iii) decisions regarding the imposition of a Final Offer Order.

Status

2 . The Sub-Committee is established by the DMBC and is authorised to take decisions in accordance with its purpose and its terms of reference.  It remains accountable to the DMBC in the performance of its functions and reports on its activities to the DMBC (and any other CMA Committee/CMA Board as required) in accordance with paragraphs 12 and 16.

Scope of the Sub-Committee’s work

3 . The Sub-Committee is authorised to undertake work, consider and make decisions in respect of certain digital markets functions referred to under the ERRA13, Schedule 4, Part 2, paragraph 29(2A) relating to the CMA’s digital markets functions, as delegated to it by the DMBC. Any such delegated decision making is limited to taking (i) enforcement decisions in relation to Schedule 4, Part 2, paragraph 29 (2A) (e), (f), (g), (l) and (m) of ERRA13, (ii) breach decisions^{[footnote 1]}, and (iii) decisions relating to the imposition of a Final Offer Order. The Sub-Committee’s delegated decision making does not extend to those digital markets functions (or any other functions) which are reserved to the CMA Board to make a decision.^{[footnote 2]}

Membership

4 . The Sub-Committee shall comprise of at least three members of the DMBC:

• (i) at least 2 members of the Sub-Committee must be members of the Board who are not members of the CMA’s staff, or (ii) the CMA Chair and at least one member of the Board who is not a member of the CMA’s staff
• at least half of the members must be (i) members of the Board who are not members of the CMA’s staff, or (ii) members of the CMA panel

5 . The Sub-Committee will include at least one staff member of the DMBC.

6 . The DMBC will appoint members to the Sub-Committee. When appointing members the DMBC will also appoint a Chair who must be non-CMA staff.

7 . The Chief Economic Adviser or Deputy Chief Economic Adviser and General Counsel or Deputy General Counsel will attend meetings in an advisory capacity. The Chief Data Technology and Insight Officer will also attend.

8 . A quorum for the Sub-Committee shall be three members including one staff member. Any quorum must still meet the membership requirements set out at paragraph 4.

9 . In the event that a member of the Sub-Committee is unable to attend, they may, with the agreement of the DMBC Chair, appoint an authorised representative. The authorised representative must be another member of the DMBC.

Meetings

10 . Meetings shall take place as and when required. Attendance at meetings can be in person or remotely.

11 . The Sub-Committee may invite any employee of the CMA or any other person to attend all or part of a meeting.  A member of DMBC may attend at any time without invitation.

12 . All meetings of the Sub-Committee must be minuted, and a copy of the minutes should be circulated to DMBC.

Decision-making

13 . The Sub-Committee is authorised to take decisions in relation to the matters set out in paragraph 3 above.

14 . All persons appointed as members of the Sub-Committee (or their authorised representatives) have voting rights, both in Sub-Committee meetings and for any Sub-Committee decisions made offline. All Sub-Committee members (or their authorised representatives) will seek to make decisions by consensus. Where decisions are made by the Sub-Committee, they shall be made by ordinary resolution. In the case of equal votes the Sub-Committee Chair shall have a second or casting vote. Only the persons appointed to the Sub-Committee (or their authorised representatives) may vote.

15 . More urgent matters can be considered offline (such as conducted via email, telephone, or an online platform), but decisions may only proceed if the quorum is met. Offline decisions will be coordinated by the Executive Office.

Reporting

16 . The Sub-Committee shall report to the DMBC on its activities as necessary. The information provided to the DMBC should enable it to maintain sufficient oversight of the Sub-Committee’s activities and progress and to account to the CMA Board for the Sub-Committee’s activities.

Conflicts of Interest

17 . Members of Sub-Committee will:

• have regard to the CMA’s policy on conflicts of interest
• review before each meeting whether there are any interests which may conflict with their duties as members of the Sub-Committee or where a potential new conflict may need declaring before a meeting and, if so, disclose them to the supporting Sub-Committee staff and, where appropriate, the CMA Compliance Officer
• be asked by the Chair of the Sub-Committee at each meeting to confirm they have carried out such a review and made such disclosure
• not participate in any activity of the Sub-Committee in relation to which they believe they have a conflict or possible conflict of interest without the consent of the Compliance Officer, who will consult with the General Counsel as appropriate

Dissolving a Sub-Committee

18 . The DMBC may direct that the Sub-Committee is dissolved at any time that it considers appropriate. This direction must be agreed by DMBC and reflected in the relevant meeting minutes.

Version Control

19 . These terms of reference were last updated on 19 June 2024. They will be reviewed within one year of operation and thereafter at the DMBC’s discretion.  Any significant changes to these terms of reference must be approved by the DMBC.

1. By way of example, breach decisions relating to whether a firm has breached a competition requirement (ie CR, PCI order, IEO, EO, FOM order, commitments or merger reporting obligation). ↩

2. Certain digital functions are reserved to the CMA Board as per the ERRA13, Schedule 4, Part 2, paragraph 29(2)(g) to (i).  Other matters are reserved to the CMA Board pursuant to (i) ERRA13, Schedule 4, Part 2, paragraph 29(2) and (ii) the CMA’s Matters reserved for Board involvement document. ↩