Section 38 — The relevant maximum

(1) For the purposes of section 36 the relevant maximum, in relation to a person, is the greater of—

(a) £10 million, and

(b) 4% of the person’s qualifying worldwide revenue for the person’s most recent complete accounting period.

(2) Where the Secretary of State is deciding the amount of the penalty to be imposed on a person at a time when the person’s first accounting period has not yet ended, the reference in subsection (1)(b) to the person’s qualifying worldwide revenue for the person’s most recent complete accounting period is a reference to the amount that the Secretary of State estimates is likely to be the person’s qualifying worldwide revenue for that period.

(3) For the purposes of this section, the amount of a person’s qualifying worldwide revenue for an accounting period is, in the event of a disagreement between the person and the Secretary of State, the amount determined by the Secretary of State.

(4) In the case of an accounting period that is not a period of 12 months, the amount of the person’s qualifying worldwide revenue (or estimated qualifying worldwide revenue) for the period is to be adjusted as follows—

(a) if the accounting period is less than 12 months, the amount is to be proportionately increased;

(b) if the accounting period is more than 12 months, the amount is to be proportionately reduced.

(5) If the person does not have an accounting period, the relevant maximum is £10 million.

(6) The Secretary of State may by regulations provide that, where the person is a member of one or more groups, the relevant maximum is to be calculated by reference to a specified percentage of the total qualifying worldwide revenue of those groups, or of members of those groups that are of a specified description, for a specified period.

(7) The Secretary of State may by regulations make provision about how the qualifying worldwide revenue of a person or persons for a period is to be determined for the purposes of this section.

(8) Regulations under this section are subject to the affirmative resolution procedure.

(9) In this section— “accounting period”, in relation to a person, means a period in respect of which accounts are prepared in relation to that person or, where that person is an individual, in relation to that person’s relevant business; “group” means a parent undertaking and its subsidiary undertakings; “parent undertaking” and “subsidiary undertaking” have the same meaning as they have for the purposes of the Companies Act 2006 (see section 1162 of, and Schedule 7 to, that Act); “relevant business” means— (a) in the case of a relevant person, the business of being a manufacturer, importer or distributor (as the case may be) of relevant connectable products; (b) in the case of a person who is an authorised representative, the business of acting as an authorised representative or as part of which the person is an authorised representative.