A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the Competition and Consumer Protection (Amendment) Bill 2018, the CCPC would be empowered instead to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.
Power to impose administrative penalties
The CCPC would issue a direction requiring an undertaking to pay a fine not exceeding €100 million or 10% of its turnover where the commission determines that the undertaking has engaged in:
•anti-competitive practices in breach of Section 4 of the Competition Act 2002; or
•an abuse of dominance in breach of Section 5 of the Competition Act.
High Court confirmation
A High Court judgment would be required before any CCPC direction could take effect and the undertaking concerned would have 30 days from the date of receipt of the CCPC direction to appeal its decision to the High Court.
The High Court may then confirm, revoke or replace the direction with another appropriate direction.
If no appeal is made within 30 days, the CCPC must apply to the High Court for confirmation of its direction to impose the relevant penalty.
The new bill sets out considerations for the CCPC and the High Court when determining penalties, including:
•the appropriateness and proportionality of the measure to the prohibited conduct;
•whether the penalty would sufficiently deter future similar conduct (if applicable);
•the seriousness of the prohibited conduct;
•the turnover of the undertaking in the financial year immediately preceding the prohibited conduct; and
•failure by the undertaking to cooperate with the CCPC's investigation.
The CCPC has been calling for civil enforcement powers for many years and there is no reason to believe that this particular proposal will gain any more traction than previous efforts, which have stalled in the absence of strong government support. However, this draft bill provides some insight into what the CCPC's powers could look like in future. In particular, placing fining criteria on a statutory footing and requiring the CCPC to seek judicial approval before imposing any fine would maintain greater judicial scrutiny over the commission's actions than is found in other European jurisdictions.
In 2017 the EU Commission proposed a new directive to harmonise the application of EU competition law across all EU member states. Commenting on what is known as the 'ECN+' proposal earlier this year, CCPC Chair Isolde Goggin said that it:
presents an opportunity to not only bring Ireland's competition enforcement regime in line with the rest of Europe, but also to bring the CCPC in line with other Irish regulators, many of whom have fining powers, including appropriate appeal mechanisms. Having the ability to impose financial penalties would enable us to deter, detect and investigate more 'white collar' breaches.
Now that the Council of Europe and Parliament have approved the ECN+ proposal, there will be more pressure on the Irish government to grant the CCPC administrative sanctions in common with other regulators in Ireland (eg, the Central Bank of Ireland) and competition authorities elsewhere in the European Union, as well as to make greater financial and human resources available to the CCPC. Once these changes are effected, companies operating in Ireland can expect the CCPC to seek to impose financial penalties more frequently where anti-competitive action is uncovered.
This article was first published by the International Law Office on 7 June 2018 and co-authored by EU Competition associates Ronan Scanlan and Simon Shinkwin.