The OFT has published a consultation on proposed changes to its
competition investigation procedures and on the revision of its
Competition Act 1998 (the CA 1998) procedural guidance to reflect
such proposals. The proposed procedural changes aim to:
increase the efficiency, speed, public accountability and
robustness of CA 1998 investigations and decision-making processes
whilst maintaining the rights of defence; and
enhance engagement with the parties to the investigation.
The published consultation proposes a new system of
decision-making. This aims to separate the decision makers from the
case investigation team. This involves:
the establishment of a Decisions Committee, which would consult
on all CA 1998 cases following the statement of objections. The
Decisions Committee would be appointed by the OFT Board of
Directors and its members would include OFT senior staff, including
the Chief Executive, executive members of the OFT Board, the Chief
Economist, the General Counsel and head of policy;
where a statement of objections has not been issued, or
following a statement of objections in relation to commitments and
early resolution or interim decisions, the Decisions Committee
would appoint a Case Decision Group. The Case Decision Group would
include at least one legally qualified member and one member of the
Decision Committee. Its responsibilities would include making
collective decisions and reviewing the statement of objections,
written representations and key pieces of evidence. The Decisions
Committee would first be consulted by the Case Decision Group
before collective decisions would be made; and
notification to the OFT Board of any key risks in cases.
Under the proposals, the OFT Board would delegate authority to
the Decisions Committee, which would in turn delegate authority to
the Case Decision Group.
The OFT procedures guidance (published in March 2011) would be
amended to reflect these proposals.
Additional proposals in the consultation include:
more interactive oral hearings, to provide greater opportunity
for dialogue between parties to an investigation and the
decision-makers on the case;
increasing transparency by publishing case notices and specific
administrative timetables on the OFT website;
increasing communication between the parties and the OFT
(e.g. through "state of play" meetings);
a new ability for parties to make representations on key
elements of draft penalty calculations ahead of the final decision
being taken; and
new internal checks and balances through scrutiny by lawyers
and economists who are not part of the investigation.
These proposals coincide with the government's recently
published BIS announcement on reform of the UK competition regime
(please see our recent
LawNow on this topic), under which the government decided to
establish a new competition regulator (the Competition and Markets
Responses to the CA 1998 procedures consultation are to be
submitted by 19 June 2012.
In addition to the above, the OFT has decided that the trial
period for the role of Procedural Adjudicator, which is currently
under an initial one year trial period, is to be extended for a
further year. The OFT has also decided to expand the scope of the
Procedural Adjudicator's responsibilities to include chairing
oral hearings in CA 1998 cases and, following an oral hearing, to
report any procedural issues brought to its attention to the Senior
Responsible Officer within the OFT.
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