Part 2: Competition Chapter 3: Markets New section 161B – Implementation trials: purpose and interpretation
New section 161B Enterprise Act 2002 introduces new sections 161C to 161E and makes interpretative provision for the purpose of those sections.
	New section 161B(2) defines "relevant authority" as the CMA or the Secretary of State. The CMA has responsibility for making decisions regarding remedies in relation to cases which have not involved a full or restricted reference. In the case of the latter, decision making powers regarding remedies lie with the Secretary of State.
	New section 161B(3) makes interpretative provision which applies in relation to Part 4. It further includes a power for the Secretary of State to specify in regulations matters in relation to which remedial action will be "qualifying remedial action" and so in scope of the power to conduct an implementation trial. This power is subject to the draft affirmative procedure, see section 145 and paragraph 3(8) in Schedule 14 to the Act.
	New section 161B(4) provides that the last day on which an implementation trial measure may have effect is the earlier of either the day specified in the final implementation trial notice as the last day on which any undertaking or order made under the new powers is to have effect, or the day on which a decision is made regarding the final remedy package under the relevant power concerned. There is no limit on how long an implementation trial may last, as each trial will need to be designed according to the needs of the particular market. However, the CMA (or Secretary of State, as the case may be) will be required to set out in the final implementation trial notice how long the specific trial measures are to last for, and will be required to make a decision regarding the final remedy package within that period.
	New section 161B(5) provides that where the CMA makes a decision under section 138A(3) to extend the period within which it must make a decision regarding the final remedy package, as a result of a person failing to comply with a requirement of an information notice under section 174, where such failure prevents the CMA properly discharging its duty under section 138(2), then the last day on which an implementation trial measure is to have effect is the last day of that period as so extended. This ensures that in the event the CMA has not been provided with information it needs to evaluate the effectiveness of remedies to enable it to make a decision regarding the final remedy package, it will not be forced to make a decision without this as a result of the time restriction that would otherwise apply.
	New section 161C – Power to conduct implementation trials.
	New section 161C(1) gives the CMA the power to begin an implementation trial where it is under a duty to take remedial action in accordance with section 138(2), (which may be either because it has identified an adverse effect on competition in a report prepared and published under section 136 within the required time period following the making of a market investigation reference, or because it is required to take action under the new section 162A(5)), and it has not taken, but is minded to take qualifying remedial action, that is action which relates to the provision of information to consumers, whether directly or through an intermediary, or any other matter which may be specified in regulations made by the Secretary of State. Consumer is defined in section 183 Enterprise Act 2002 for the purposes of Part 4.
	New section 161C(2) gives the Secretary of State the power to begin an implementation trial where (i) the Secretary of State has the power to take action under section 159 or section 161 by virtue of section 147(2) or section 147A(2), (ii) and they have not taken, but are minded to take qualifying remedial action.
	New section 161C(3) provides that the powers of both the CMA and Secretary of State to undertake implementation trials are subject to the requirements in new section 161D Enterprise Act 2002 concerning the publication of notices.
	New section 161C(4) provides that an implementation trial is begun by the CMA, or the Secretary of State, as the case may be, by the acceptance of an undertaking or making of an order under section 161C for the purposes of assessing, during the implementation trial period, the likely effectiveness of the qualifying remedial action.
	New sections 161C(5) and (6) make provision so that where the CMA or Secretary of State begin an implementation trial, they also have a power to accept undertakings or make orders which they consider would be likely to contribute to, or otherwise be of use for remedying, mitigating or preventing an adverse effect on competition, or detrimental effect on customers resulting from it, or which may be expected to result from it, identified in the report concerned, during the implementation trial period. This allows the relevant authority flexibility to design implementation trials according to the needs of the market and to impose a provisional remedy in relation to one section of the market, while other remedies are trialled with other cohorts. It further means that where adverse effects are linked such that it is not reasonably practicable to determine a final remedy package while the implementation trial is ongoing, a provisional remedy may be put in place in relation to a related adverse effect on competition pending the outcome of the trial.