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Competition (Amendment) Bill 2021 Update

AUTHORs: Kate McKenna co-author(s): Calum Warren, Neringa Juodkunaite Services: EU, Competition & Regulatory DATE: 07/10/2021

Following lengthy delays, the Competition (Amendment) Bill 2021 (the “Bill”) that will overhaul the Irish competition enforcement landscape is expected to be published in the coming weeks with possible enactment of the legislation by the end of 2021.  While the proposed legislation may be subject to further delays, the Bill remains within the priority legislation in the Autumn 2021 Legislation Programme and it seems there is political will to enact the legislation by the end of the year.  The Bill will introduce a number of significant new features for the Irish enforcement regime including the introduction of administrative fining powers for the Irish competition regulator, Competition and Consumer Protection Commission (“CCPC”), as well as provision for a fully-fledged leniency (ie, ‘whistle-blower’) programme.  The CCPC is already ramping up its resources and so once the legislation is in force, new CCPC investigations are expected from the get-go.

Background

The Bill seeks to implement Directive EU 2019/1 (the “ECN+ Directive”) and amend other existing legislation unrelated to the ECN+ Directive but increasing other powers of the CCPC.

The ECN+ Directive provides for a wide-ranging reform of competition law in the EU in order to harmonise the enforcement of EU competition law across the EU and bolster the enforcement powers of national competition authorities.  In particular, the ECN+ Directive seeks to ensure adequate provision at the Member State level for civil sanctions for breaches of competition law, investigative powers of national authorities and fully-fledged leniency programmes enabling businesses to come forward regarding potential competition law breaches whilst avoiding or minimising any sanctions imposed.

In addition to implementing the ECN+ Directive, the Bill intends to enhance other powers of the CCPC including the introduction of additional surveillance and electronic interception and recording powers. 

Matheson responded to the public consultation on certain aspects of the Bill earlier this year (see Matheson response to Public Consultation on Competition (Amendment) Bill 2021).

Overall, the Bill will overhaul the Irish competition enforcement landscape and is expected to lead to increased Irish enforcement activity, with the possibility of significant fines for companies in key sectors of focus, such as financial services, technology, and manufacturing.

Expected scope of new Irish enforcement regime under the Bill

The Bill has been subject to extensive pre-legislative scrutiny during the Committee meetings in February 2021 (“Committee Meetings”) and in the Oireachtas Committee Report of 23 June 2021 (“Oireachtas Report”) which partly account for the lengthy delays in its enactment.  

During the Committee Meetings which were also attended by senior CCPC officials (ie, Commissioners), a number of points were raised including the proposed Court-approval of CCPC fines to ensure constitutional compliance, the need for additional CCPC resources to embrace the new powers and the CCPC expectation around the utility of the proposed enhanced leniency or ‘whistle-blower’ programme as an investigative tool.  The proposed surveillance and electronic interception and recording powers of the CCPC received particular scrutiny, with the Committee concluding that the legislation should clarify the scope of the surveillance powers to ensure that the powers do not infringe on personal privacy.

The Oireachtas Report identified 17 key issues which it believes need to be considered in drafting the Bill and again emphasised the importance of providing the appropriate financial and other resourcing to fully implement the new powers and obligations assigned to the CCPC and ComReg.

Thus, while full details of the new CCPC enforcement regime are yet to be finalised, based on the details published to date and the proposals made during the pre-legislative stage, the key features of the new regime are expected to include:

  • Administrative fining powers for the CCPC with some level of Court oversight (similar to the current Central Bank and Data Protection Commission regimes);
  • A fully-fledged leniency programme for the CCPC enabling greater incentives for whistle-blowers and enhanced detection of potential competition breaches;
  • Some level of new CCPC surveillance and investigative powers; and
  • Significant new CCPC powers in respect of mergers, including powers to bring summary prosecutions in respect of ‘gun jumping’ offences, ‘hold-separate’ and ‘unwinding’ powers in respect of ‘below threshold’ transactions and powers to issue requirements for further information to third parties – Matheson will report on these additional merger powers separately once the Bill is published.

Once the new regime under the Bill comes into effect, an immediate increase in Irish enforcement activity is expected with the possibility of significant fines for companies in key sectors of interest including financial services, technology, and manufacturing, consistent with the CCPC’s enforcement history to date.

Expected timing of publication of Bill and enactment following passage through Houses of Oireachtas

Based on the latest updates, following publication of the Oireachtas Report, it is understood that drafting of the Bill is now nearing completion, with possible publication of the Bill in November but potentially later. 

Once published, the Bill will begin its passage through the two Houses of the Oireachtas, which could take somewhere between two weeks up to a couple of months.   However, the recent swift passage of the Companies (Corporate Enforcement Authority) Bill 2021 is indicative of the willingness to expedite the legislative process for priority legislation.  The Bill is also viewed as an important part of the State’s overall approach to combatting white-collar crime and, with that in mind, it seems there is the political will for the Bill to be enacted by the end of the year.