Ireland: Irish Competition And Consumer Protection Act Passed

On 17 July 2014, the Competition and Consumer Protection Act 2014 was passed by the Irish Parliament. The legislation was first published by the Irish Department of Jobs, Enterprise and Innovation ("DJEI") on 31 March 2014 (See VBB on Competition Law, Volume 2014, No. 4, available at www.vbb.com).

The main innovation introduced under the Act is the merger of the National Consumer Agency ("NCA") and the Competition Authority ("CA") to form the new Competition and Consumer Protection Commission ("CCPC"), although this new authority will only come into existence at a future date to be determined by the DJEI. This new body will be responsible for both the promotion of competition and the protection of consumers and follows a similar development in the UK (See VBB on Competition Law, Volume 2014, No. 3, available at www.vbb.com).

Another reform introduced by the legislation is the amendment of the merger control section of the Competition Act 2002, including the introduction of new merger notification thresholds and procedures.

Under the new Act, a merger will be notifiable to the CCPC if, in the most recent financial year, the aggregate turnover in the State of the relevant undertakings is not less than € 50,000,000, and the turnover in the State of each of two or more of the undertakings involved is not less than € 3,000,000.

The 2014 Act further brings Irish law into line with the European Merger Regulation, through the introduction of the possibility of filing merger notifications, where it can be demonstrated to the CCPC that a good-faith intention to conclude a merger exists.

Regarding the changes to the review periods, the new legislation extends the time periods granted to the CCPC to consider a notified transaction and grants new powers to 'stop the clock' during a Phase 2 investigation.

Under the new regime, the CCPC will have an initial Phase 1 period of 30 working days (up from the previous allowance of one month), taking into account suspensions for formal information requests, in which to decide whether to open a Phase 2 investigation.

After the initiation of a Phase 2 process, the CCPC will have 120 working days from the date of receipt of the notification to complete the investigation (the old regime allowed for a four-month investigation period). Should the CCPC issue a formal request for information within 30 working days of the receipt of notification, it will have 120 working days from the date on which the information requirement was complied with to complete the investigation.

The Act also introduces changes to the media merger regime in Ireland. This includes the redefinition of "media business" to include publication over the Internet and the supply of news and current affairs on an electronic communications network.

In addition, the legislation introduces a number of significant changes which will have a particular impact on cartel enforcement.

Through the amendment of the Criminal Justice Act 2011, hardcore cartel offences have been brought within the scope of criminal legislation. The new legislation will provide the CCPC with enhanced enforcement powers, particularly in the investigation of the offence of entering into an anti-competitive agreement as well as the offence of an abuse of dominant position.

It will now be a criminal offence for "any person" with information which he knows or believes to be of material assistance in relation to the prevention or commission of a hardcore cartel offence, or the investigation of such offences, to fail to disclose this information to the Police.

The Police have also been given the power to suspend and recommence the detention of persons suspected of the above offences, up to two times over a maximum period of four months from the date of the first detention. This will enable the Police to question a suspect over three separate occasions.

Finally, the Act allows for compelled disclosure of material which may be legally privileged, pending a decision of the High Court which will determine whether the material is, in fact, privileged. This new power of compulsion is subject to a requirement that the confidentiality of the information is maintained. This power is not limited to seizures made in the course of cartel investigations.

The legislation now awaits the signature of the Irish President before it can become law; which is expected to take place shortly. Following the signature of the President, the Act will be subject to commencement by the relevant Government Ministers. It is expected that this will occur in stages but the timeframe for commencement has not yet been finalised.

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