Section 3 of the Competition Act 2002 (as amended) (the "2002 Act") provides that the Commission for Communications Regulation ("ComReg"), together with the CCPC, is a competent authority in respect of matters involving the provision of an Electronic Communications Network, Electronic Communication Services or associated facilities.
On 29 June 2022, the Competition (Amendment) Act 2022 (the “2022 Act”) was enacted by the Oireachtas. The 2022 Act implements Directive (EU) 2019/1 of the European Parliament and of the Council (also known as the ECN+ Directive) and amends the 2002 Act. The 2022 Act has not yet come into force.
As a competent authority under the 2022 Act, ComReg has the function of investigating possible breaches of the 2002 Act and Articles 101 and 102 of the Treaty of the Functioning of the European Union. On 28 August 2023 ComReg made the following policies and guidelines available pursuant to the 2002 Act, arising out of the 2022 Act:
- Guidelines on the determination of administrative financial sanctions and periodic penalty payments (the “ComReg Financial Penalty Guidelines”)
- ComReg Administrative Leniency Policy (the “ComReg ALP”)
- Access to the File Policy in respect of investigations by ComReg under the Competition Act 2002 (the “ComReg Access to the File Policy”)
The draft policies and guidelines published by ComReg are virtually identical to the finalised policies and guidelines the CCPC published on 1 August 2023 on the operation of its powers and responsibilities arising out of the 2022 Act.
Please see brief overview of the draft ComReg policies and guidelines set out below.
1. ComReg Financial Penalty Guidelines
The draft Financial Penalty Guidelines published by ComReg are drafted pursuant to Section 15AF(1)(b) of the 2002 Act. The purpose of the draft Financial Penalty Guidelines is to provide guidance to the adjudication officers and to promote transparency by setting out detailed guidance regarding the methodology for the determination financial sanction monetary amounts.
The Financial Penalty Guidelines outline:
- Two-step methodology to be used when deciding the administrative financial sanction to be imposed on an undertaking found to have infringed, or to be infringing, relevant competition law;
- Methodology and relevant factors for determination of the amount of administrative financial sanctions; and
- Methodology and relevant factors for calculating periodic penalty payments.
2. ComReg ALP
The draft ComReg ALP outlines ComReg’s policy in relation to applications for leniency from undertakings for disclosing their participation in cartels or retail price maintenance and outlines the requirements applicant undertakings must meet in order to qualify for leniency. Leniency, in the context of the ComReg ALP, refers to both immunity from administrative financial sanctions, as well as a reduction of any such administrative financial sanctions, which would otherwise have been imposed by ComReg.
The ComReg ALP provides that applications for leniency must be made to the CCPC who will then decide, along with ComReg, whether a particular cartel matter shall be allocated to the CCPC or ComReg. It is notable, however, that the ComReg ALP is separate and in addition to the CCPC’s Administrative Leniency Policy and the Cartel Immunity Programme, which outlines the joint policy of both the CCPC and the Director of Public Prosecutions in considering applications for immunity from prosecution for criminal cartel offences under the 2002 Act.
3. ComReg Access to the File Policy
The draft Access to the File Policy sets out the procedures adopted by ComReg for providing access to its file in the context of investigations carried out by ComReg under the 2002 Act. The file, in this context, consists of documents which have been obtained, produced and/or assembled by ComReg during an investigation and which have been relied upon by ComReg for the purposes of issuing a statement of objections / investigation report.
The Access to the File Policy sets out:
- Who is entitled access to the file;
- When access to the file is granted;
- Documents to which access may be granted; and
- Submission and treatment of confidential information.
The draft policies and guidelines published by ComReg provide transparency around how ComReg will exercise their new powers. As indicated above, the draft policies and guidelines published by ComReg are virtually identical to finalised policies and guidelines published by the CCPC on 1 August 2023.
Although ComReg stated that it is welcoming submissions up until 5.30pm on 11 September 2023, given that the draft documents are extremely similar to final CCPC documents it appears unlikely that the final ComReg versions will be much different.