ARTICLE
18 March 2019

Competition Compliance And Dawn Raids: Issues And Recommendations In Advance Of The Brexit Deadline

M
Matheson

Contributor

Established in 1825 in Dublin, Ireland and with offices in Cork, London, New York, Palo Alto and San Francisco, more than 700 people work across Matheson’s six offices, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson services the legal needs of internationally focused companies and financial institutions doing business in and from Ireland. Our clients include over half of the world’s 50 largest banks, 6 of the world’s 10 largest asset managers, 7 of the top 10 global technology brands and we have advised the majority of the Fortune 100.
The UK's competition enforcer the CMA will no longer form part of the EU network of competition authorities (the ECN).
European Union Antitrust/Competition Law

Enforcement: Brexit may increase Irish competition law enforcement

The UK’s competition enforcer the CMA will no longer form part of the EU network of competition authorities (the ECN).  This means that Ireland’s enforcer the CCPC will no longer have detailed knowledge of and be able to rely on CMA enforcement against particular competition concerns as a deterrent to the many ‘UK and Ireland’ businesses.  As a result, the CCPC may increase its own information gathering and competition law enforcement activities.

Our recommendation:

Companies in Ireland should refresh their competition law compliance policies and training programmes in order to ensure that their commercial agreements and practices are competition law compliant.

Dawn Raids:  Brexit may increase the number of dawn raids carried out in Ireland

EU authorities will no longer be able to conduct dawn raids independently in the UK.  To collect relevant material on suspected anti-competitive activity by UK companies which are active in the EU, EU authorities may seek to conduct dawn raids of Irish-based subsidiaries or affiliates of those businesses instead.  The February 2019 European Commission Dawn Raids of Scottish premises is a recent example of a subsidiary in an EU Member State being targeted in circumstances where the company headquarters is in is a third country.

Our recommendation: 

Companies in Ireland which are affiliated to UK businesses trading into the EU should refresh their Dawn Raid policies and training programmes in order to ensure Dawn Raid preparedness.

Information Sharing: There is a need for caution to avoid illegality in market discussions about Brexit

The uncertainty brought about by Brexit may increase the perceived need of Irish businesses to engage with competitors.  Any discussions with competitors including in the context of trade associations are liable to attract scrutiny from competition regulators.

Our recommendation:

Companies in Ireland must avoid any activity which may be perceived to amount to anti-competitive co-ordination with competitors, remembering the key points that (i) information sharing can breach competition law even where it is ‘one way’ or no actual co-ordination occurs, and (ii) recent case law shows that an isolated occurrence at a single meeting still constitutes a competition law offence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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