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Competition Compliance and Dawn Raids: Issues and Recommendations in Advance of the Brexit Deadline

AUTHORs: Helen Kelly, Kate McKenna Services: EU, Competition & Regulatory , Brexit DATE: 07/03/2019

The UK’s competition enforcer the CMA will no longer form part of the EU network of competition authorities (the ECN). 

This means that Ireland’s enforcer the CCPC will no longer have detailed knowledge of and be able to rely on CMA enforcement against particular competition concerns as a deterrent to the many ‘UK and Ireland’ businesses.  As a result, the CCPC may increase its own information gathering and competition law enforcement activities.

Our recommendation:

Companies in Ireland should refresh their competition law compliance policies and training programmes in order to ensure that their commercial agreements and practices are competition law compliant.

Dawn Raids:  Brexit may increase the number of dawn raids carried out in Ireland

EU authorities will no longer be able to conduct dawn raids independently in the UK.  To collect relevant material on suspected anti-competitive activity by UK companies which are active in the EU, EU authorities may seek to conduct dawn raids of Irish-based subsidiaries or affiliates of those businesses instead.  The February 2019 European Commission Dawn Raids of Scottish premises is a recent example of a subsidiary in an EU Member State being targeted in circumstances where the company headquarters is in is a third country.

Our recommendation: 

Companies in Ireland which are affiliated to UK businesses trading into the EU should refresh their Dawn Raid policies and training programmes in order to ensure Dawn Raid preparedness.

Information Sharing: There is a need for caution to avoid illegality in market discussions about Brexit

The uncertainty brought about by Brexit may increase the perceived need of Irish businesses to engage with competitors.  Any discussions with competitors including in the context of trade associations are liable to attract scrutiny from competition regulators.

Our recommendation:

Companies in Ireland must avoid any activity which may be perceived to amount to anti-competitive co-ordination with competitors, remembering the key points that (i) information sharing can breach competition law even where it is ‘one way’ or no actual co-ordination occurs, and (ii) recent case law shows that an isolated occurrence at a single meeting still constitutes a competition law offence.