Section 38 — Power to adopt final offer mechanism

(1) Where the CMA considers that the following three conditions are met in relation to a transaction between a designated undertaking and a third party, the CMA may—

(a) require the undertaking, and

(b) invite the third party,

to submit to the CMA terms as to payment (“final offer payment terms”) which the undertaking or, as the case may be, the third party regards as fair and reasonable for the transaction.

(2) The first condition is that the transaction is a transaction in which the designated undertaking would—

(a) provide goods or services to the third party, or

(b) acquire goods or services from, or use goods or services of, the third party.

(3) The second condition is that, by failing to agree fair and reasonable terms as to payment for the transaction, the designated undertaking has breached an enforcement order, other than an interim enforcement order, made in relation to a breach of a conduct requirement of the type permitted by section 20(2)(a) (requirement to trade on fair and reasonable terms).

(4) The third condition is that the CMA could not satisfactorily address the breach within a reasonable time frame by exercising any of its other digital markets functions.

(5) In subsection (1), “transaction” means—

(a) a future transaction, or

(b) the future performance of an ongoing transaction,

whether in accordance with a contract or otherwise.

(6) In sections 39 to 44— “the designated undertaking” means the undertaking mentioned in subsection (1); “the transaction” means the transaction mentioned in subsection (1); “the third party” means the third party mentioned in subsection (1).