Part 1: Digital Markets Final offer mechanism Section 39: Collective submissions
This section sets out the situations in which two or more third parties may make a single submission of payment terms that they collectively regard as fair and reasonable during the Final Offer Mechanism (FOM) process. This is known as a collective submission. The provisions set out in this section do not preclude parties from engaging in collective bargaining at other stages in the enforcement process, within the confines of existing competition law.
	Subsection (1) clarifies that, where a designated undertaking is involved in a single transaction involving two or more third parties, the CMA has discretion to invite – but not compel – the third parties in question to submit a single final offer of payment terms as a collective. For multiple parties to be able to submit a single bid, the usual conditions required for FOM (see section 38) apply, and the CMA must consider that the third parties are able to act jointly when submitting a final offer of payment terms. The CMA is not required to share the reasons behind their decision to allow a collective submission in the final offer initiation notice but may choose to do so.
	Subsection (3) allows the CMA to invite two or more third parties to make collective submissions in situations where there are multiple transactions. The third parties can be invited to make a collective submission in relation to the transactions provided that the CMA considers the parties can act jointly and that the same terms as to payment could be applied to all the transactions in question. The ‘same terms as to payment’ does not necessarily mean the same price applies for all the transactions; it also encompasses scenarios where, for example, a common formula for determining a price could apply to all the transactions. For example, a transaction entered into with one third party could be grouped with a different transaction entered into with another third party, or with multiple third parties.
	Subsection (4) clarifies the situations in which the provisions in sections 39-44 apply to all the third parties/transactions subject to FOM, and when they could also apply to a smaller subset of them. This provides in particular for the possibility that some decisions taken by the CMA during the FOM process may not affect all members of a grouped third party.
For example, the effect of subsection (4) is that section 43(3) requires the CMA to give notice to all the grouped third parties if it decides not to issue a final offer order, while section 40(4) provides that, for the purposes of information gathering, the CMA has discretion to require any one or more of the grouped third parties to provide information.