The purpose of the Competition Act
The Competition Act prohibits:
- Certain agreements or concerted practices which may affect trade within the United Kingdom and have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom (Section 2 of the Competition Act, often referred to as ‘the Chapter I prohibition’);
- The abuse of a dominant position in a market if it may affect trade within the United Kingdom (Section 18 of the Competition Act often referred to as ‘the Chapter II prohibition’).
These provisions may be enforced by the CMA which may give directions for bringing the infringement to an end and impose penalties of up to 10 per cent of the turnover of the undertaking involved. Similar powers are exercisable by the regulators in the telecommunications, electricity, gas, water, railways, air traffic services, healthcare services and financial services (including payment systems) sectors ("the sectoral regulators").
The Chapter I and Chapter II prohibitions are the United Kingdom domestic law equivalent of Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU"):
- Article 101 prohibits agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition within the Internal Market and which may affect trade between Member States;
- Article 102 prohibits the abuse by one or more undertakings of a dominant position in the Internal Market or in a substantial part of it insofar as it may affect trade between Member States.
Following the entry into force of Council Regulation 1/2003/EC and the amendment of the Competition Act (by the Competition Act and other enactments (Amendment) Regulations 2004), the CMA and the sectoral regulators may use their powers of investigation and enforcement under the Competition Act in relation to the enforcement of Articles 101 and 102 TFEU.
The right of appeal under the Competition Act
Who may appeal to the Tribunal under the Competition Act?
Under sections 46 and 47 of the Competition Act an appeal to the Tribunal may be made by:
- Any party to an agreement in respect of which the CMA (or sectoral regulator) has made a decision
- Any person in respect of whose conduct the CMA (or sectoral regulator) has made a decision
- Any third party who the Tribunal considers has a sufficient interest (or is representative of persons having such an interest) in a decision made by the CMA (or sectoral regulator).
Under Sections 46 and 47 of the Competition Act, certain decisions taken by the CMA (or sectoral regulator) may be appealed to the Tribunal. The Tribunal may confirm, set aside, or vary the relevant decision, or remit the matter to the original decision maker, or make any other decision that the original decision maker could have made.
Which decisions may be appealed under the Competition Act?
Sections 46(3) and 47(1) of the Competition Act contain lists of decisions taken by the CMA (or sectoral regulator) which may be subject to an appeal to the Tribunal. These include any decision as to:
- Whether the Chapter I prohibition has been infringed;
- Whether the prohibition in Article 101 of the TFEU has been infringed;
- Whether the Chapter II prohibition has been infringed;
- Whether the prohibition in Article 102 of the TFEU has been infringed;
- The acceptance, release, non-release or variation of commitments under section 31A of the Competition Act;
- The imposition of any penalty under section 36 of the Competition Act or as to the amount of any such penalty.
Appeals may also be made in respect of:
- Directions given by the CMA (or sectoral regulator) under sections 32 and 33 of the Competition Act in order to bring an infringement of the Chapter I or Chapter II prohibitions to an end;
- Interim measures ordered by the CMA (or sectoral regulator) under section 35 of the Competition Act or a refusal by the CMA (or sectoral regulator) to grant interim measures;
- The cancellation of a block or parallel exemption; and
- The withdrawal of the benefit of an EU block exemption regulation pursuant to Article 29(2) of Council Regulation 1/2003.
Finally, under section 49D(3) of the Competition Act, a person required by the CMA to pay an amount of the CMA’s costs relating to that person’s application for approval of a redress scheme under section 49C of the Competition Act may appeal to the Tribunal against the amount.
The Secretary of State has power to add to the list of decisions that may be appealed.
The Tribunal's powers in respect of appeals under the Competition Act
The Tribunal has wide powers to determine most appeals under the Competition Act on their merits and may:
- Confirm or set aside all or part of the decision;
- Remit the matter to the CMA (or the sectoral regulator);
- Impose, revoke or vary the amount of any penalty;
- Give such directions, or take such other steps as the CMA (or sectoral regulator) could have given or taken, or
- Make any other decision which the CMA (or sectoral regulator) could have made.
If the Tribunal confirms the decision which is the subject of the appeal it may nevertheless set aside any finding of fact on which the decision was based.
In respect of appeals concerning the acceptance, release, non-release or variation of commitments, the Tribunal must determine such appeals in accordance with judicial review principles and may:
- Dismiss the appeal or quash the whole or part of the decision to which it relates; and
- Where it quashes the whole or part of that decision, remit the matter back to the CMA (or the sectoral regulator) with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
Except in the case of an appeal against the imposition or the amount, of a penalty, the making of an appeal to the Tribunal does not suspend the effect of the decision to which the appeal relates, unless the Tribunal orders otherwise.
Claims for damages or other monetary claims and applications for injunctions under the Competition Act
Claims for damages
A claim for damages or any other sum of money may be made in the Tribunal pursuant to section 47A of the Competition Act.
The claim must be in respect of:
- (i) An infringement of the Chapter I and/or Chapter II prohibitions (sections 2 and 18 of the Competition Act) or Articles 101 and/or 102 TFEU established by a decision of a UK competition authority, the Tribunal itself, or the European Commission; and/or
- (ii) An alleged infringement of the above provisions.
A claim made in respect of (i) above is sometimes referred to as a “follow-on” claim since it follows on from a prior infringement decision made by a competition authority. A claim made in respect of (ii) above, since it is not made in the wake of a competition authority’s infringement decision, is sometimes referred to as a “stand-alone” claim. An action may combine both follow-on and stand-alone claims and these sorts of claim are sometimes referred to as “hybrid” claims.
Generally, if the claim for damages or a sum of money (whether follow-on or stand-alone) could be made in civil proceedings in any part of the United Kingdom then it can be made in proceedings before the Tribunal.
Under section 47B of the Competition Act, collective actions for damages (including both follow-on and stand-alone claims) may be brought in the Tribunal on an "opt-in" or "opt-out" basis.
Collective proceedings must be commenced by a person seeking the authorisation of the Tribunal to act as the representative of the claimants. Claims are eligible for inclusion in collective proceedings only if the Tribunal considers that they raise the same, similar or related issues and are suitable to be brought in collective proceedings.
The Tribunal is also able to approve the settlement of claims in collective proceedings: see sections 49A and 49B of the Competition Act.
Pursuant to section 47D of the Competition Act, the Tribunal has power to grant an injunction on both an interim or final basis. An injunction granted by the Tribunal has the same effect as an injunction granted by the High Court and is enforceable as if it were an injunction granted by the High Court.
It should be noted however that an application for an injunction can be made in the Tribunal only if it could be made in proceedings in England and Wales or Northern Ireland. The Tribunal does not have jurisdiction to grant an injunction in relation to Scotland, and such an application has to be made to the Scottish Courts.
The purpose of the Enterprise Act: mergers and market investigations
The Enterprise Act 2002 (“the Enterprise Act”) contains the statutory framework relating to competition investigations of mergers and economic markets in the United Kingdom by the CMA.
Initial (or “Phase 1”) investigations of mergers are carried out by the CMA. If the CMA believes that there is a realistic prospect that a merger has resulted or may be expected to result in a substantial lessening of competition within any market in the United Kingdom or a part of it, the CMA must undertake a more detailed (“Phase 2) investigation to establish whether its initial view of the merger’s effect on competition is borne out.
Once the CMA has carried out its detailed investigation, it produces a report on the merger. If the CMA determines that the merger has resulted or may be expected to result in a substantial lessening of competition its report must set out what action, if any, it proposes to take with a view to preventing the substantial lessening of competition or to remedy or mitigate the situation. In certain circumstances, the Secretary of State may intervene and take decisions in relation to a merger on public interest grounds.
Market investigations are in-depth investigations by the CMA of particular economic markets and whether there is prevention, restriction or distortion of competition occurring in those markets. They may be initiated by the CMA itself, or a market may be referred by one of the sectoral regulators (or in some circumstances a Minister) to the CMA for investigation.
The CMA’s website should be consulted for more detailed information on merger and market investigations.
The right to apply to the Tribunal for a review of merger and market investigation decisions
Any person aggrieved by a decision of the CMA or the Secretary of State in connection with a merger situation or market investigation may make an application to the Tribunal for a review under section 120 (mergers) or section 179 (market investigations) of the Enterprise Act. A “decision” includes a failure to take a decision permitted or required by the Enterprise Act.
In determining an application for a review the Tribunal must apply the same principles as would be applied by a court on an application for judicial review: section 120(4) (mergers) and section 179(4) (market investigations).
The Tribunal may dismiss the application or quash the whole or part of the decision to which it relates and, where it quashes the whole or part of that decision, refer the matter back to the original decision maker with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.
Where the CMA imposes a penalty for failure to comply with a notice issued by it requiring the production of documents or information or the attendance of witnesses in a merger or market investigation under the Enterprise Act, the person on whom the penalty is imposed may appeal to the Tribunal against the imposition of the penalty, the amount of a penalty or the date by which the penalty is required to be paid: section 114 (mergers) and section 176(1)(f) (market investigations).
The European Common Electronic Communications Framework
The European Common Electronic Communications Framework (“the Framework”) is made of a package of 5 Directives (unofficially consolidated versions) and 2 Regulations:
- The Framework Directive is based on the Framework Directive 2002/21/EC and the Better Regulation Directive 2009/140/EC;
- The Access Directive is based on the Access Directive 2002/19/EC and the Better Regulation Directive 2009/140/EC;
- The Authorisation Directive is based on the Authorisation Directive 2002/20/EC and the Better Regulation Directive 2009/140/EC;
- The Universal Service Directive is based on the Universal Service Directive 2002/22/EC and the Citizens' Rights Directive 2009/136/EC;
- The Directive on Privacy and Electronic Communications is based on the Directive on Privacy and Electronic Communications 2002/58/EC, the Amending Directive 2006/24/EC and the Citizens' Rights Directive 2009/136/EC;
- The Regulation on Body of European Regulators for Electronic Communications (BEREC); and
- The Regulation on roaming on public mobile communications networks.
A significant number of the obligations imposed by the Framework on the United Kingdom are implemented by the provisions of the Communications Act 2003 (the Communications Act).
Part 2 of the Communications Act confers power on OFCOM to regulate electronic communications networks and services by the setting, modification or revocation of general or specific conditions in respect of the provision of such networks or services in accordance with section 45 of that Act. Part 2 of the Communications Act also confers power on OFCOM relating to the use of the radio spectrum.
Section 192 of the Communications Act allows any person affected by a decision made by OFCOM under Part 2 of the Communications Act to appeal to the Tribunal in respect of that decision. Section 192 also includes a right of appeal in respect of decisions made by OFCOM under the Wireless Telegraphy Act 2006 governing the use of the radio spectrum.
Section 192 also applies to certain decisions made by the Secretary of State under the following provisions of the Communications Act:
- Section 5 (directions in respect of networks and spectrum);
- Section 109 (restrictions and conditions subject to which the electronic communications code applies);
- Section 132 (suspension or restriction of a communication provider’s entitlement); and
- Section 124P (orders appointing a manager of the internet domain registry).
Appeals may be brought by a Channel 3 licence holder against a decision made by OFCOM pursuant to sections 290 to 294 and Schedule 11 of the Communications Act concerning the competition aspects of networking arrangements.
Pursuant to section 317 of the Communications Act, appeals may also be made against decisions of OFCOM taken using powers under the Broadcasting Act 1990 for a competition purpose.
Decisions that may not be appealed to the Tribunal are specified in Schedule 8 to the Communications Act and are principally either decisions that do not have an immediate effect on a person, but are of a legislative or quasi legislative nature that require a further act or decision to be given effect, or decisions on matters which fall outside the scope of the European Communications Directives. They include decisions to institute bring or carry on any criminal or civil proceedings, or to carry out any preliminary steps towards instituting such proceedings.
For the purposes of Section 192 and Schedule 8 of the Communications Act in relation to appeals, references to a decision under an enactment include references to a failure to make a decision and to a failure to exercise a power or to perform a duty - although this is the case only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty (section 192(7)).
The Tribunal's powers under the Communications Act
The Tribunal must decide an appeal against a decision of OFCOM under the Communications Act by reference to the grounds of appeal set out in the notice of appeal, by applying the same principles as would be applied by a court on an application for judicial review (section 194A).
The Tribunal must decide an appeal against certain decisions of the Secretary of State under the Communications Act on the merits by reference to the grounds of appeal set out in the notice of appeal (section 195(2)).
The Tribunal’s decision must include a decision as to what (if any) is the appropriate action for the decision maker to take in relation to the subject-matter of the decision under appeal and the Tribunal shall remit the decision under appeal to the decision maker with such a direction as the Tribunal considers appropriate for giving effect to its decision (sections 194A(3)-(4) and 195(3)-(4)).
In the case of an appeal against a decision given effect to by a restriction or condition set by regulations under section 109 of the Communications Act, the Tribunal must take only such steps as it considers are not detrimental to good administration (section 195(7)).
Price control matters under the Communications Act
If an appeal raises a price control matter the Tribunal must, before reaching its decision, refer the matter to the CMA for determination: section 193 of the Communications Act (and Rule 116 of the Tribunal’s Rules of Procedure). Subject to the Tribunal’s direction, the CMA shall determine the specified price control matter within four months of receipt of the reference from the Tribunal.
In its final decision on the appeal, the Tribunal must follow the CMA’s determination concerning the specified price control matter unless the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the CMA would fall to be set aside on such an application: section 193(7) of the Communications Act.
Broadcasting Act Licences: Conditions relating to competition matters
OFCOM has power by virtue of section 316 of the Communications Act and the Broadcasting Acts (of 1990 and 1996) to impose or vary the conditions of a Broadcasting Act licence to ensure fair and effective competition.
Section 317(6) of the Communications Act provides that any person affected by a decision by OFCOM to exercise any of its Broadcasting Act powers for a competition purpose may appeal to the Tribunal against so much of that decision as relates to the exercise of that power for that purpose.
Appeals under The Mobile Roaming (European Communities) Regulations 2007 (S.I. 2007 No. 1933) (“the 2007 Regulations”)
The 2007 Regulations implement Articles 8 and 9 of Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile telephone networks within the Community and amending Directive 2002/21/EC (“the EU Mobile Roaming Regulation”) (OJ No. L171, 29.6.2007, p32) and designate OFCOM as the national regulatory authority for the purposes of the EU Mobile Roaming Regulation.
Regulation 14 of the 2007 Regulations provides that a person affected by a decision of OFCOM under the EU Mobile Roaming Regulation or the 2007 Regulations may appeal that decision to the Tribunal.
Regulation 15 of the 2007 Regulations provides that the Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.
Appeals under The Authorisation of Frequency Use for the Provision of Mobile Satellite Services (European Union) Regulations 2010 ("the 2010 Regulations")
The 2010 Regulations implement in the United Kingdom the European Parliament and Council Decision 626/2008/EC of 30 June 2008 (OJ No.L172, 2.7.2008, p.15-24) on the selection and authorisation of systems providing mobile satellite services and the Commission Decision 2009/449/EC of 13 May 2009 (OJ No.L149, 12.6.2009, p.65-68) on the selection of operators of pan-European systems providing mobile satellite services.
Regulations 10 to 12 of the 2010 Regulations provide that a person affected by a decision of OFCOM under these regulations, other than decisions taken by OFCOM under regulation 13, may appeal that decision to the Tribunal.
Appeals under The Communications (Access to Infrasctructure) Regulations 2016 ("the 2016 Regulations")
The 2016 Regulations implement certain of the requirements of Directive 2014/61/EU which sets out measures to reduce the cost of deploying high-speed electronic communications networks.
The 2016 Regulations allow network providers to request from infrastructure operators or rights holders: (i) information about physical infrastructure (regulation 4); (ii) the surveying of physical infrastructure (regulation 5); (iii) access to physical infrastructure (regulation 6); (iv) access to in-building physical infrastructure (regulation 7); (v) information about civil works (regulation 8); and (vi) the coordination of a network provider’s civil works with civil works funded from public funds (regulation 9). Regulations 12 and 13 stipulate that disputes may be referred to OFCOM for determination.
Where OFCOM has made a determination or has given a confirmation decision (see regulation 17), a party to a dispute may apply to the Tribunal for a review of that determination or decision. In determining the appeal, the Tribunal must apply the same principles as would be applied by a court on an application for judicial review. OFCOM must be a party to the proceedings and the Tribunal must either dismiss the appeal or quash, in whole or part, the determination or confirmation decision. Where the Tribunal quashes a determination, it must refer the matter back to OFCOM with a direction to reconsider and make a new determination that is consistent with the Tribunal’s ruling. Where the Tribunal quashes a confirmation decision (or any part of it), it must refer the matter back to OFCOM with a direction to reconsider the application of the contravention process (as set out in sections 138 to 139A of the Communications Act) to the matter in a manner consistent with the Tribunal’s ruling; or make such other direction about the confirmation decision as it considers appropriate (regulation 19).
Under Schedule 2A of the Electricity Act 1989 (inserted by section 44(4) of the Energy Act 2008) GEMA may, on application, make a property scheme in the context of tenders in relation to offshore electricity transmission licences so that property, rights and liabilities can be transferred from the existing owner to the successful bidder. Any person aggrieved by such a decision may apply to the Tribunal for a review: paragraph 23 of Schedule 2A to the 1989 Act.
Under Schedule 18 of the Energy Act 2004 GEMA may, on application, make a property arrangements scheme which provides for the transfer of property, rights or liabilities from an existing transmission licence holder to a new system operator. Any person aggrieved by such a decision may apply to the Tribunal for a review: paragraph 10 of Schedule 18 to the Energy Act 2004.
The Tribunal is able to hear appeals in relation to decisions taken by GEMA in respect of: (i) orders made to secure compliance with a licence condition pursuant to section 25 of the 1989 Act; and (ii) the imposition and amount of any penalty imposed by GEMA under section 27A of the 1989 Act: sections 20 and 21, of the Energy Act 2010.
Section 57 of the Postal Services Act 2011 (“the 2011 Act”) stipulates that where OFCOM takes a decision to: (i) impose or modify a regulatory condition; (ii) give, modify or withdraw a direction, consent or approval; (iii) impose a penalty, or give or modify a direction; (iv) give or modify a direction under section 89A or 116(2A) of the Postal Services Act 2000; or (v) give a direction under section 25(5) of the Consumers, Estate Agents and Redress Act 2007, a person affected by such a decision may appeal against it to the Tribunal.
In determining the appeal, the Tribunal must apply the same principles as would be applied by a court on an application for judicial review. The Tribunal must either dismiss the appeal, or quash the whole or part of the decision to which the appeal relates.
Under the regime introduced by the Civil Aviation Act 2012 (“the 2012 Act”), the Civil Aviation Authority (“CAA”) grants licences to operators of “dominant areas” located at “dominant airports” which enable those operators to levy charges for airport operation services. These licences may contain price control conditions. In order to determine whether an airport area is dominant within the meaning of the 2012 Act, the CAA conducts a market power test.
The Tribunal’s jurisdiction includes the hearing of appeals in respect of certain decisions of the CAA taken under the following provisions of the 2012 Act:
- Section 13 and Schedule 1 of the 2012 Act (determinations): market power determinations and operator determinations by the CAA.
- Section 47 and Schedule 3 of the 2012 Act (orders and penalties): where the CAA takes action to enforce licence conditions by making an enforcement order or imposing a penalty for contravention of a licence condition.
- Section 49 and Schedule 4 to the 2012 Act (licence revocations): where the CAA gives a notice revoking a licence, or a further notice withdrawing a licence revocation notice.
- Section 55 and Schedule 5 of the 2012 Act (penalties: information): where the CAA imposes a penalty for failure to provide information, or for provision of false or misleading information, under section 51 or section 52 of the 2012 Act.
- Section 90 and Schedule 13 of the 2012 Act (penalties): where the CAA imposes a penalty under section 86 or section 87 of the 2012 Act for failure to provide information requested, or for provision of false or misleading information, in relation to the CAA’s duty to publish information for the benefit of users of air transport services and environmental information.
The Tribunal’s powers in respect of appeals under the 2012 Act are set out in the relevant Schedules. In particular, the Tribunal may only allow an appeal to the extent that it is satisfied that the decision being challenged is based on an error of fact, was wrong in law, or an error was made in the exercise of discretion. The Tribunal may then confirm or set aside the decision and give the CAA such other directions as it considers appropriate. In the case of market power determinations and operator determinations, the Tribunal also has the power to direct the CAA to make a further determination and, if the CAA fails to do so, to make the determination itself. The Tribunal is required to have regard to the CAA’s duties under section 1 in any appeal under the 2012 Act.
The Financial Services (Banking Reform) Act 2013 (“the 2013 Act”) created a new statutory regulator for retail payments systems, the Payment Systems Regulator (“PSR”).
The Tribunal has jurisdiction to hear appeals against certain enforcement decisions of the PSR pursuant to section 77 of the 2013 Act. Other enforcement decisions are appealable to the CMA (subject to a permission requirement). In essence, an affected party will be able to challenge before the Tribunal any “CAT-appealable decisions” and decisions to impose a penalty in respect of a compliance failure:
- CAT-appealable decisions are defined by section 76(4) of the 2013 Act as a decision to: (i) give a direction under section 54; (ii) impose a requirement under section 55; or (iii) publish details under section 72(1). In such an appeal, the Tribunal must apply the same principles as would be applied by a court on an application for judicial review. The Tribunal must either dismiss the appeal or quash the whole or part of the decision to which it relates. Where the Tribunal quashes the whole or part of a decision, it may refer the matter back to the PSR.
- Section 76(5) of the 2013 Act provides that decisions to impose a penalty taken under section 73 can be appealed to the Tribunal in accordance with section 78. An appellant may challenge the imposition of the penalty, its amount or the date for payment. The Tribunal has the power to uphold the penalty, set it aside and/or vary the amount or the date for payment.
The 2009 Regulations implement Directive 2007/64/EC of the European Parliament and of the Council on payment systems in the internal market (OJ No.L319, 5.12.2007, p.1). Part 8 of the 2009 Regulations makes provision in relation to access to payment systems. Regulation 96 sets out the scope of the application of the Part and regulation 97 prohibits restrictive rules on access to payment systems. Regulations 98 to 109 confer functions on the CMA in relation to the supervision and enforcement of the prohibition in regulation 97.
Regulation 106 of the 2009 Regulations provides that a person affected by a decision of the CMA under regulation 104(1) or 105 may appeal to the Tribunal. In determining the appeal the Tribunal will apply the same principles as would be applied by a court on an application for judicial review.
The 2015 Regulations implement Regulation (EU) 2015/751 of the European Parliament and of the Council of 29th April 2015 on interchange fees for card-based payment transactions (“the interchange fee regulation”).
Pursuant to regulation 4 of the 2015 Regulations, the PSR may give a direction in writing to any regulated person (i.e. a person on whom an obligation, prohibition or restriction is imposed by any provision of the interchange fee regulation) for the purpose of: (i) obtaining information about compliance with an obligation, prohibition or restriction imposed by the interchange fee regulation or the application of any such obligation, prohibition or restriction to a person; (ii) remedying a failure to comply with an obligation, prohibition or restriction imposed by the interchange fee regulation; (iii) preventing a failure to comply, or continued non-compliance, with such an obligation; and (iv) providing redress for or compensation to a person who has suffered loss as a result of failure to comply with such an obligation, prohibition or restriction. A regulated person may appeal to the Tribunal against such a direction: see regulation 10 of the 2015 regulations.
A regulated person may also appeal against a decision of the PSR to publish details of a compliance failure: see regulations 5(a) and 10(1) of the 2015 Regulations. In determining the appeal, the Tribunal must apply the same principles as would be applied by a court on an application for judicial review. The Tribunal must either dismiss the appeal or quash the whole or part of the decision which the appeal relates. Where the Tribunal quashes the whole or part of a decision, it may refer the matter back to the PSR.
Additionally, pursuant to regulation 6 of the 2015 regulations, the PSR may require a regulated person to pay a penalty in respect of a compliance failure. A regulated person may appeal any PSR decision to issue a penalty to the Tribunal: see regulation 11 of the 2015 Regulations. The Tribunal may: (i) uphold the penalty; (ii) set aside the penalty; (iii) vary the amount of penalty; and (iv) vary any date by which the penalty is required to be paid.