31 October 2015 marks the first birthday of the Competition and Consumer Protection Commission (“CCPC”) which was created under the Competition and Consumer Protection Act, 2014 (“2014 Act”). Over the past twelve months, the CCPC has overseen major changes to Irish competition law and practice. This update reviews ten developments in the CCPC’s work that impact on companies doing business in Ireland.
Mergers: a heavier regulatory burden
1. More mergers must be notified and to what benefit?
New lower thresholds under the 2014 Act – requiring Irish turnover of €50m in aggregate and €3m by each of two parties – have led to a large increase in the number of merger filings to the CCPC (over 80%).
This rise in notifications is largely because the lower thresholds now capture smaller deals. No significant competition concern was identified in these smaller transactions, which is troubling because increased regulatory costs are being placed on businesses and on the CCPC’s limited resources. This was always a risk because the new thresholds were not subject to prior public consultation or a Regulatory Impact Assessment.
The effect of the new thresholds in making small acquisitions by large players subject to review may enable the CCPC to ‘sharpen its axe’ in advance of major mergers involving the same large players. For example, in early 2015 the CCPC reviewed three acquisitions by Paddy Power of six or less local betting offices and in late 2015 the CCPC is now reviewing the Paddy Power / Betfair merger. Time will tell whether the CCPC will harness this possible regulatory advantage.
2. Merger review is taking longer
The 2014 Act increased the permissible time limit for the CCPC to examine a Phase I merger from one month to 30 working days. While the stated purpose of this change was to align Ireland with the EU approach of counting working days, its introduction has resulted in a considerable slow-down in the average Phase I timetable – from around 19 working days in 2013/14 to around 23 working days under the new regime.
Merger reviews have also been lengthened by the use of formal information requests by the CCPC, as described below.
3. Greater use of CCPC’s ‘stop the clock’ powers
The CCPC has used its power to ‘stop and re-start the clock’ on the statutory review period by requesting information from merger parties in four cases under the new regime: Liberty Global / TV3, Pat the Baker / Irish Pride, Topaz / Esso and Baxter / Fannin Compounding. The latter two cases also moved to Phase II.
Thus, some mergers are spending double the standard period in Phase I without the CCPC having articulated any competition concern. This practice may suit parties who hope to avoid the additional uncertainties that can accompany Phase II, but it also undermines legal certainty and transparency to the detriment of parties who reasonably expect to receive clearance in a standard Phase I / 30 working day period in circumstances where no competition concern has been identified by the CCPC.
4. More hurdles for ‘media mergers’
The 2014 Act introduced a new requirement to notify ‘media mergers’ separately to each of the CCPC and the Minister for Communications, Energy and Natural Resources (“Minister”). The Minister may, following a Phase I review, instruct the Broadcasting Authority of Ireland (“BAI”) to conduct a Phase II investigation. For the first time, the new rules also cover parties operating in the online media sector.
Legislation enacted following the 2014 Act provides that a media merger notification to the Minister can only be submitted following a CCPC clearance determination, meaning that a ‘media merger’ could be delayed for up to 60 working days (30+30) before receiving a Phase I clearance from both bodies. Parties involved in a media merger are also required to disclose more detailed information in a media merger notification form than in a standard merger notification form.
The Minister published the Media Merger Guidelines in May 2015, following a public consultation process. The additional delay and information burden for media mergers received criticism during the consultation process, and after only three cases it remains to be seen whether these criticisms will result in efficient decision making by the Minister. Unfortunately, the third media merger case subject to the new regime (Liberty Global / TV3) is not a good example of a timely review in that it spent 53 working days in an Extended Phase I review before being cleared by the CCPC and is now with the Minister for review. There also remains transparency concerns as the Minister has not yet enabled public web access to media merger clearance decisions.
Two mergers were cleared subject to divestment remedies in 2015. The last time that a divestment remedy was imposed in Ireland was in 2007 (Communicorp / SRH).
Firstly, Valeo Foods’ acquisition of Wardell Roberts and Robert Roberts received CCPC clearance at Phase II subject to the divestment of the 'YR' brown sauce brand in February 2015. The CCPC disagreed with the merging parties’ view that there was an overall market for cold sauces (including ketchup, brown, BBQ etc) and concluded that there was a narrow market for brown sauce only. A majority of Irish retailers and a consumer survey also supported the narrow-market view.
Secondly, the acquisition by Topaz of Esso Ireland was subject to the divestment of three fuel service stations in the Dublin area and a 50% interest in a fuel terminal at Dublin Port. Topaz acquired 103 Esso-supplied service stations (comprised of 38 CoCos and 65 DoDos). As a result, Topaz will now operate approx. 425 fuel service stations in Ireland, and will have a presence in many local markets. The divestment of Esso’s interest in the Dublin Port fuel terminal is considered by many in the industry as critical to maintain competition in the market for wholesale fuel supply in Ireland. Additionally, the case involved the first ever divestment in a local retail market in Ireland following CCPC geo-mapping and analysis of fuel volumes and road infrastructure.
6. The Recession might be over, but the CCPC has found a Failing Firm
The ‘failing firm’ defence has been successful for the first time in an Irish merger control review in the recent Phase II clearance of Baxter / Fannin Compounding.
The CCPC engaged Grant Thornton to conduct an independent examination of Fannin. Based on this evidence in particular, the CCPC determined that Fannin would exit the Irish market in the absence of the merger and that the conditions for the ‘failing firm’ defence in the CCPC Merger Guidelines were satisfied. It is generally more challenging to satisfy the ‘failing firm’ test in relation to a ‘failing division’ of a wider business, such as Fannin, because it can be difficult to identify the stand-alone financial position of a division that relies on central functions. This general principle is recognised in the CCPC Merger Guidelines. Therefore, the CCPC’s determination on this case will be of particular interest when published.
7. Property transactions now notifiable
At present, parties involved in the acquisition of hotel and property portfolios (including asset-only deals) account for over 30% of all CCPC notifications under the new regime. Clearly, such parties are adversely affected by the new thresholds, as these mergers would not generally have been subject to merger review before the 2014 Act.
The CCPC intends to publish guidance in December 2015 on the jurisdictional test it considers appropriate to decide if a property / asset acquisition is a notifiable event.
Enforcement of Behavioural Rules
8. Does the CCPC have more teeth than its predecessor?
Competition enforcement activity in Ireland has been low in recent years, so the CCPC has much to prove in this area. Already there are signs of a concerted effort by the CCPC to pursue more competition law investigations in 2015:
January 2015: The CCPC published a new policy of leniency and immunity from criminal prosecution. May 2015: The CCPC undertook dawn raids in the cement industry, including at premises of Irish Cement, a subsidiary of CRH plc and this CCPC investigation is on-going (see below).
May 2015: The CCPC wrote to the National Association of GPs warning that they may be in breach of competition law in response to a proposed collective boycott by GPs.
June 2014: The CCPC made an application for a High Court ruling on a claim by Irish Cement that certain records seized during a CCPC dawn raid are legally privileged and cannot be used in the CCPC’s investigations. This new power to apply to court could have significant consequences for business, including making public (through court records) the name of the companies subject to a dawn raid.
September 2015: The District Court granted bail to a former company director who has recently been criminally charged, alongside his former employer company, for bid-rigging in relation to a major flooring contract. As well as facing a jail sentence of up to ten years if convicted, the director is charged with directing the destruction of emails relevant to the competition investigation – a criminal offence that has not yet been prosecuted in the Irish Courts.
October 2015: The CCPC closed its investigation into Booking.com after obtaining an undertaking from it to cease enforcing price parity commitments with hotels. In effect, hotel operators are now free to offer room rates at prices lower than those offered on Booking.com.
In summary, following a number of years with few successful enforcement investigations, the pressure is on for the CCPC to prove its capability to prepare civil and criminal court cases and to secure impactful commitments from parties to competition law investigations.
9. Active consumer law enforcement
The CCPC has also been active in consumer law enforcement and, to date, has issued 10 compliance notices (nine addressed to telco operators with one addressed to an online retail store). Criminal liability arises from a failure to comply with these notices. All notices issued in 2015 related to alleged contraventions of the Consumer Protection Act or the Consumer Rights Directive, such as a consumer’s right to cancel a ‘distance contract’. By contrast, the notices issued in 2014 addressed traders who charged more for consumer goods than the price displayed. Time will tell whether this shift indicates that the CCPC will try to enforce a broader range of consumer law offences than its predecessor, the National Consumer Agency.
The CCPC has also published a study on consumer detriment in Ireland and has issued guidance to hotels and retailers of electrical appliances on complying with consumer rights law.
10. New frontiers: groceries regulation and the Antitrust Damages Directive
Later this year we expect that Groceries Regulations will come into force giving the CCPC new powers to oversee civil and criminal law enforcement of conduct by large retailers and suppliers in the groceries sector. The draft regulations, which were put out to consultation earlier this year, allow for the CCPC to ‘name and shame’ offenders and to initiate prosecutions seeking imposition of criminal sanctions, including fines of up to €100,000 and a prison sentence. This new regulatory regime is likely to present significant challenges for businesses striving to ensure compliance, as well as for the CCPC, as the legal concepts are new and untested.
Another upcoming development of note is that the EU Antitrust Damages Directive must be implemented in Ireland by the end of 2016. We expect that the CCPC will look to influence the Irish implementing legislation, including in particular the rules on plaintiffs accessing their files when seeking to bring a case against an alleged competition law infringer. As yet, there has been no CCPC or Government statement on the approach to be taken.