Matheson Responds to Public Consultation on Competition (Amendment) Bill 2022 – Cartels, Monopolies
Matheson recently responded to a public consultation on certain aspects of the Competition (Amendment) Bill 2022 (the “Invoice“).
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 ongoing 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 papers under this public consultation to which Matheson responded (which are now closed for comment), focused on the enforcement powers of the CCPC in relation to both Irish merger control laws and anti-competitive behavior, the new administrative leniency program and penalties and penalties.
Specifically, Matheson responded to the following public consultation policy documents:
1. One 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 the conduct of the cartel, published on February 14, 2022.
2. One the guidance note on the interplay between the Cartel Immunity Program (“C.I.P.“) and the administrative leniency policy (“ALP“) for Cartels which sets out guidance on which program to apply to and how (when applications are made) the CCPC will process such applications, which was published on February 14, 2022.
3. One the guidance note on the CCPC’s Choice of Antitrust Violations Enforcement Regime, which provides information on high-level principles that the CCPC may consider when selecting an appropriate enforcement regime for antitrust violations. Alleged Antitrust Violations in the State, released February 14, 2022.
Matheson answer: We responded to the above public comment policy documents, together in a consolidated submission, on March 11, 2022. CCPC intends to publish our response in the near future. Generally speaking, Matheson welcomed the further strengthening of the CCPC’s enforcement regime, to include a full-fledged leniency program that would grant immunity to the “first” applicant, while simultaneously having the ability to grant reduced administrative sanctions to subsequent companies that come to transmit material information to the CPCC.
However, Matheson had specific concerns regarding:
(I) the potential “spillover” of information provided by companies between the separate ALP and CIP regimes, as there will be a single division responsible for investigating requests made through both regimes;
(ii) uncertainty about the impact of a leniency application for a company’s directors, officers and employees, given that the CCPC has confirmed that the ALP and CIP regimes are separate processes and that obtaining leniency leniency/immunity in one regime does not automatically mean that the company is immune from prosecution/sanctions vis-à-vis the other regime; and
(iii) uncertainty about the initiation of criminal proceedings after the administrative enforcement procedures, given the lack of clarity about the attributions of the CCPC. Specifically, we note that it is unclear whether the ability to pursue a criminal recognizance is not an option once the CPCC initiates administrative enforcement proceedings, Where whether it is possible that during the period between the initiation of proceedings and the issuance of a decision by a CPCC case manager, the CPCC will have the ability to transfer its potential route of execution to criminal proceedings.
4. Guidelines on the determination of administrative pecuniary penalties and periodic penalty payments, intended to provide companies and their legal advisers with additional information on the basis of the calculation of administrative pecuniary penalties and periodic penalty payments under the law, published on April 4, 2022.
Matheson answer: We responded to the above public comment policy document on May 6, 2022. CCPC intends to publish our response in the near future. Generally, Matheson welcomed the further strengthening 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 fine powers, including appropriate appeal mechanisms.
However, Matheson had concerns about the discrepancy between the CCPC guidelines and the UK Competition and Markets Authority (“CMA“) and European Commission (“THIS“) guidelines on financial penalties and penalties. In particular, the CCPC guidelines departed from the CMA and EC’s approach to “aggravating” and “mitigating” factors related to fines, for which the CCPC has not yet provided of explanation..
Matheson is also in the process, as part of the ongoing consultation process, of responding to a policy note on updating the procedures for accessing the file. These are intended to provide companies and their legal advisers with further information on the policy and practice of the CCPC regarding access to the file in the context of an investigation.
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