Part 1: Digital Markets Final offer mechanism Section 45: Duty to keep final offer orders under review
This section requires that the CMA keep final offer orders, and compliance with them, under review.
Flowchart of the FOM process
A designated undertaking is instructed, as part of its conduct requirements, to offer fair and reasonable payment terms to a third party. (Sections 19 and 20)
The CMA has reason to believe the conduct requirement has been breached, and carries out an investigation, lasting a maximum of six months. (Section 26)
The CMA finds a breach. It makes an enforcement order to bring the undertaking’s conduct in line with the requirement. (Section 31)
The CMA finds that the undertaking has breached the enforcement order, and is still not complying with the original conduct requirement. (Section 38(1))
The CMA considers whether using it could not satisfactorily address the breach within a reasonable time frame by exercising any of its other digital markets functions (Section 38(2)-(4))
Where appropriate, the CMA will also consider whether multiple third parties could be invited to make a collective submission of payment terms. (Section 39)
The CMA refers parties to the mechanism through a notice (a FOM initiation notice). (Section 40(1))
The CMA must state what other actions, if any, it is considering taking to address any underlying factor or combination of factors which contributed to the breach. (Section 40(3)(b))
The CMA facilitates evidence gathering and sharing between the two parties. (Section 40(4))
Both parties then prepare their ‘final offer payment terms’. The exact amount of time parties will have to prepare their offers will be set by the CMA. (Section 40). The CMA must make an order on or before the last day of the "final offer period" of six months. (Section 41(3)).
The CMA must state which party’s final offer payment terms are to be included in the transaction, unless there has been a material change in circumstances. (Section 41)
The CMA issues a final offer order to give effect to its decision. (Section 42(1))
The CMA publishes a statement explaining, amongst other details, why the winning bid was successful. (Section 42(3))
Parties will be able to appeal the outcome under judicial review principles, with the Competition Appeal Tribunal (CAT) reviewing the decision to adopt one of the offers. (Section 102)
	The various timelines set out in this flowchart are subject to the CMA’s power to extend deadlines under the circumstances in Section 103.