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Matheson Responds to Public Consultation on Competition (Amendment) Bill 2022

AUTHORs: Kate McKenna, Calum Warren co-author(s): Laura McDonnell Services: EU, Competition & Regulatory DATE: 10/06/2022

Matheson has recently responded to a public consultation on certain aspects of the Competition (Amendment) Bill 2022 (the "Bill"). 

The CCPC has developed a series of policies on the proposed operation of the new powers and responsibilities it will receive when the Bill is enacted and has opened an on-going consultation process inviting submissions from Government Agencies, representative bodies, and other interested parties. 

The main purpose of the Bill is to implement what is widely known as the ECN+ Directive.  The policy documents within this public consultation that Matheson has responded to (which are now closed for comment), focused on the CCPC's enforcement powers in relation to both Irish laws on merger control and anti-competitive conduct, the new administrative leniency programme and administrative financial sanctions and periodic penalty payments.

More specifically, Matheson responded to the following public consultation policy documents:

1. An administrative leniency policy for cartels, which sets out the specific criteria under which the CCPC may grant leniency in exchange for the voluntary disclosure of information regarding cartel conduct, published on 14 February 2022.

2. A guidance note on the interaction between the Cartel Immunity Programme ("CIP") and the Administrative Leniency Policy ("ALP") for Cartels which sets out guidance on which programme to apply to and how (when applications are made) the CCPC will process such applications, which was published on 14 February 2022.

3. A guidance note on the CCPC’s choice of enforcement regime for breaches of competition law, which provides information on the high-level principles that the CCPC may consider when selecting an appropriate enforcement regime for suspected infringements of competition law in the State, published on 14 February 2022.

Matheson Response: We responded to the above public consultation policy documents, together in one consolidated submission, on 11 March 2022.  The CCPC intends to publish our response in the near future.  As a general point, Matheson welcomed the additional bolstering of the CCPC’s enforcement regime, to include a fully-fledged leniency programme that would award immunity to the ‘first’ applicant, whilst simultaneously having the capacity to award reduced administrative sanctions to subsequent undertakings that come forward to the CCPC with significant information. 

However, Matheson did have specific concerns in relation to:

(i) the potential "spill-over" of information provided by undertakings between separate ALP and CIP regimes, given that there will be one singular division tasked with investigating applications issued through both regimes;

(ii) the uncertainty on the impact of a leniency application for directors, officers and employees of an undertaking, given that the CCPC has confirmed that both the ALP and CIP regimes are distinct processes and securing leniency / immunity in one regime does not automatically mean that the undertaking is immune from prosecution / sanction with respect to the other regime; and

(iii) the uncertainty on the initiation of criminal proceedings post administrative enforcement proceedings, given the lack of clarity on the CCPC's remit.  Specifically, we note that it is unclear whether the possibility of pursuing an undertaking criminally is not an option once the CCPC initiates administrative enforcement proceedings, or whether is it possible that in the period of time between initiation of proceedings and the issuance of a decision by a CCPC case manager, that the CCPC has the capacity to transfer its potential route of enforcement to criminal proceedings.

4. Guidelines on the determination of administrative financial sanctions and periodic penalty payments, intended to provide undertakings and their legal advisors with further information on the basis for the calculation of administrative financial sanctions and periodic penalty payments under the Act, published on 4 April 2022.

Matheson Response: We responded to the above public consultation policy document on 6 May 2022.  The CCPC intends to publish our response in the near future.  As a general point, Matheson welcomed the additional bolstering of the CCPC’s enforcement regime, which will bring Ireland's competition enforcement regime in line with the rest of Europe, as well as other Irish regulators, many of whom have fining powers, including appropriate appeal mechanisms.

However, Matheson did have concerns in relation to the variance between the CCPC's guidelines and the UK Competition and Markets Authority (“CMA”) and European Commission ("EC") guidelines on financial sanctions and penalty payments.  In particular, the CCPC guidelines diverged from the CMA and EC approach in respect to "aggravating" and "mitigating" factors in relation to fines, for which the CCPC has not yet provided an explanation.  

Matheson is also in the process, as part of the on-going consultation process, of responding to a policy note on the updated access to the file procedures.  These are intended to provide undertakings and their legal advisors with further information on the CCPC’s policy and practice in relation to access to the file in the course of an investigation.

Full details on consultation process can be found here.