Commentary Complaints Sections 71 to 79 and Schedule 5: Enforcement and appeals
242.Sections 71 to 75 include provision for the enforcement of decisions made by the Payment Systems Regulator. The Payment Systems Regulator has the power to require a participant in a regulated payment system to pay a penalty in respect of a compliance failure (as defined in section 71) and can publish details of compliance failures and penalties it imposes. Before imposing a penalty or publishing details of a compliance failure, the Payment Systems Regulator must issue a warning notice to the person concerned, provide at least 21 days for representations to be made, consider any representations received and give notice in writing stating whether or not it intends to impose the sanction (section 74). The Payment Systems Regulator can apply to the court to issue injunctions to prevent the occurrence or continuation of a compliance failure or to order a participant who has committed a compliance failure to take steps to remedy it (section 75).
243.Sections 76 to 79 and Schedule 5 make provision about appeals against decisions of the Payment Systems Regulator. Section 76 provides that certain decisions are classed as “CAT-appealable decisions” and have to be appealed to the CAT along with appeals concerning penalties. Other decisions qualify as “CMA-appealable decisions” and have to be appealed to the CMA. Appeals to the CMA are only possible where the CMA has granted permission. Section 77 and 78 make provision about the procedure for appeals to the CAT, and Section 79 and Schedule 5 make provision about the procedure for appeals to the CMA, including the power of the CMA to suspend the decision in question pending the outcome of the appeal, and the CMA’s powers to obtain information relevant to the determination of the appeal. Appeals of CAT-appealable decisions are heard to a judicial review standard. Appeals against a CMA-appealable decision can result, if the CMA decided to quash whole or part of a decision, in the CMA substituting its own decision for that of the Payment Systems Regulator.