The Competition and Markets Authority's Consultation on Direct Consumer Enforcement Guidance and Rules- Which? response

Which? welcomes the opportunity to comment on this consultation and is very supportive of the new powers of the CMA to enforce consumer law and this guidance and rules on how the new regime will operate. 

The option of a direct consumer enforcement regime for the CMA has been a longstanding Which? ask, and we believe this is a major step forward for consumer protection as the previous inadequacies of the CMA’s powers (and those of other regulators) have been evident and well recognised for quite some time. It is crucial that robust civil penalties are in place as part of this regime to further protect consumers. For example, it took nearly six years, and the threat of legal action, for Viagogo, a well-known secondary ticket selling company, to finally change its practices and follow CMA guidance on the information it gives consumers. In contrast, in other countries where these powers were available, like in Canada, secondary ticketing sites Ticketmaster and Stubhub faced immediate fines for not complying with a previous warning. Which? believe that this will provide an effective deterrent against non-compliance with consumer law and will enable the CMA to intervene more effectively where there are breaches including the ability to fine businesses that do not comply with information requests or undertakings. We are broadly supportive of the CMA’s guidance and consider that it sets out a clear and fair process for how the CMA will use these new powers appropriately, including how it will determine penalties - and in line with its duty of expedition under the Digital Markets, Competition and Consumers Act 2024 (DMCC Act). This obliges the CMA to have regard to the need to make a decision or take action as soon as reasonably practicable. We have made some minor suggestions for where we think additional clarity could be provided. 

Where appropriate we would suggest that relevant third parties such as ourselves with a sufficient interest in ensuring effective enforcement should be enabled to contribute to the process. For Which?, although we are a private designated enforcer in our own right, we have considerably more limited enforcement powers under the new DMCC Act than other (non-CMA) regulators. In particular, we do not have access to enhanced consumer measures options, or to apply to a court for monetary penalties or online interface orders. For this reason, the option of formal involvement in CMA processes where relevant would be welcome.