Part 3: Enforcement of consumer protection law Chapter 6: Investigatory Powers Schedule 17: Investigatory powers Appeals against final enforcement notice
Paragraph 16D provides for appeals from final enforcement notices given by the CMA under paragraph 16C.
	Appealable decisions: an appeal under this paragraph can be brought against the requirement to pay a monetary penalty for failure to comply with an information notice, or directions aimed at achieving compliance with an information notice, or both (paragraph 16D, subparagraph (1)).
	Persons able to bring appeals (paragraph 16D, subparagraph (1)): Any recipient of the final enforcement notice has the right to bring an appeal against the notice.
	Grounds for appeal are set out in paragraph 16D, subparagraph (2) in relation to appeals against the imposition of a monetary penalty and paragraph 16D, subparagraph (3) in relation to appeals against CMA directions given through a final enforcement notice. These provide for a right of appeal on the merits. The appeal court will be able to:
inquire into the correctness of the CMA’s findings of fact and into the correctness of the CMA’s analysis of, and conclusions drawn from, those facts,
inquire into the correctness of the CMA’s interpretation of the law,
inquire into the correctness of the discretion exercised by the CMA.
	The final ground of appeal, in paragraph 16D, subparagraph (2)(d) and subparagraph (3) (d) reflects in particular the Government’s intention that the appeal court will have discretion to hear fresh evidence on appeal. There could therefore arise circumstances where the appeal court finds that on the evidence before it, the CMA arrived at a reasonable conclusion but on the basis of the new evidence before the court, the CMA’s conclusions were nonetheless wrong. See also the explanatory note for section 202.
	Appropriate appeal courts (paragraph 16D, subparagraph (8))
The High Court in England and Wales or Northern Ireland, or
The Outer House of the Court of Session in Scotland.
	Powers of appeal court (paragraph 16D, subparagraph (4)). The appeal court will be able to confirm, vary or set aside the CMA’s notice, or any part of it, as well as
Impose, revoke or vary the amount of any penalty,
Give such directions, or take such other steps, as the CMA could have given or taken,
Make any other decision which the CMA could itself have made,
Confirm the CMA’s decision and dismiss the appeal, including if the court concludes that the decision was the right one but for different reasons than those given by the CMA.
	The Government’s policy intent is that a court conducting an appeal on the merits under this section should interfere only if it concludes that the decision is wrong in a material respect (reflecting the observation of the Court of Appeal in T-Mobile v Ofcom [2008] EWCA Civ 1373, as approved by the Court of Appeal in CMA v Flynn Pharma, [2020] EWCA Civ 339, at paragraphs 143 to 147).
	Timing to bring an appeal: (paragraph 16D, subparagraphs (5) and (6)):
Within 28 days of the CMA giving a final enforcement notice to a person
The appeal court may extend the period for bringing an appeal, for example, to further the overriding objective set out in rule 1.1 of the Civil Procedure Rules for England and Wales.
	Effect of appeals (paragraph 16D, subparagraph (7)): The requirement to pay a civil monetary penalty will be suspended until the appeal is determined. Otherwise, the making of an appeal will not automatically suspend the effect of any directions to which the appeal relates.