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 Authority ("CMA")).
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.
For more information, please see here and here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 10/04/2012.