Part 2: Competition Chapter 3: Markets New section 161D – Implementation trials: notices
New section 161D of the Enterprise Act 2002 makes provision regarding the procedural steps which the relevant authority is required to follow before it may begin an implementation trial.
	New section 161D(1) requires that the relevant authority must publish both a provisional implementation trial notice, and a final implementation trial notice.
	New section 161D(2) specifies the matters that must be included in the provisional implementation trial notice. The relevant authority must set out details of each implementation measure, that is undertaking and order, it is minded to accept or impose, and the relevant adverse effect each is intended to address must be specified. The relevant authority must state any other facts that they consider justify the imposition of the measure, and set out how it intends to assess the effects of the measure, and the last day on which it intends for the measure to have effect. It must further invite the making of representations by the persons on which it is minded to impose measures, and specify how, and by when, such representations must be made. New subsection (3) specifies that at least 15 days after the date on which the provisional implementation trial notice is published must be allowed for the making of representations.
	New subsection 161D(4) makes provision requiring the relevant authority to take into account any representations received in response to the provisional implementation trial notice, and where they consider it appropriate to begin an implementation trial, to publish a final implementation trial notice.
	New section 161D(5) specifies the matters which must be set out in the final implementation trial notice. This must include the implementation trial measures the relevant authority intends to impose, and in relation to each such measure, how they intend to assess the effect of the measure, and the last day on which the measure is to have effect. Since trials are to be undertaken in circumstances where it is not clear what the most effective approach to the remedy is, there is no statutory time limit set in relation to the trial period itself. To ensure that a trial cannot continue indefinitely, the final implementation trial notice must specify the last day on which each implementation trial measure is to have effect. This specified day acts as a long stop on the implementation trial, and is the date by which the final action under section 138(2) by the CMA must be taken. The period specified will therefore take account of both the time needed to allow the remedy to take effect, its effectiveness to be assessed, and to allow any consultation to take place about the final measure to be imposed taking into account the conclusions of the trial.