Regulatory bodies must apply the principle of equal treatment in all steps leading to the imposition of a penalty. What does this mean? It means that regulators must treat parties that are in a comparable position equally, unless a difference in treatment can be objectively justified. If a regulator does not apply this principle, it runs the risk that its decisions will be challenged. A recent English Court of Appeal decision1 illustrates this.

WHAT HAPPENED?

The case concerned an investigation by the UK Office of Fair Trading (OFT) into infringements of competition law, specifically the retail pricing of tobacco products.

The appellant companies signed early resolution agreements with the OFT admitting certain infringements of competition law and received reduced penalties. The OFT later issued a decision which made findings of infringement against them, as well as other companies, including a company called TMR. However, due to assurances given by the OFT to TMR before it signed its early resolution agreement, TMR's penalty was refunded. The appellants argued that this breached the principle of equal treatment and could not be objectively justified.

The English High Court found that the OFT was required to afford equal treatment to all who participated in the early resolution process and that it breached this principle by giving more favourable assurances to TMR. It stated that the appellants had a strong right to, and expectation of, equal treatment. It noted that the OFT had published a policy for settling competition law cases, which stated that "Fairness, transparency and consistency are integral to an effective settlements process." The Court said that as the OFT's policy documents emphasised the importance of respecting the principle of equal treatment, that principle should have been applied when imposing penalties.

WHAT DOES THE APPLICATION OF EQUAL TREATMENT INVOLVE?

The principle of equal treatment demands that parties who are in a similar position be treated in a similar manner, unless a difference in treatment can be objectively justified. This does not mean that parties in similar positions must be treated identically or that a public body is required to replicate exchanges with parties "word for word".

In Gallaher & Somerfield , the assurances given to TMR placed it in a far more favourable position than the appellant companies. The Court said the assurances were therefore a substantial and valuable benefit which fell within the scope of the equal treatment that the OFT was obliged to afford to all parties who negotiated early resolution agreements with it.

WHEN ARE PARTIES IN A RELEVANTLY COMPARABLE POSITION?

Where two or more parties are the subject of an investigation by the same regulatory body, they will generally be regarded as being in comparable positions. The parties cannot be treated differently solely on the basis that one of them seeks more favourable treatment, but the other does not.

WHEN IS LESS FAVOURABLE TREATMENT OBJECTIVELY JUSTIFIED?

There is little tolerance for less favourable treatment where a regulator's policy documents expressly state that it will apply the principle of equal treatment. In Gallaher & Somerfield, the Court held that the unequal treatment of the parties was "stark and manifest" and that the failure to inform all parties of assurances given was "particularly unfair". The only difference between the parties was that TMR had been given assurances, but the appellant companies had not. This difference was not an objective justification for less favourable treatment.

The OFT argued that different treatment could be objectively justified if assurances are given to one party by mistake, as the assurances to TMR had been given. The Court rejected this argument and held that the OFT could have withdrawn the assurances.

Different treatment cannot be objectively justified by mistake.

THE IRISH CONTEXT

Although this is an English decision, the courts in Ireland would be likely to view it as persuasive. In addition, even if a body does not have a specific policy that sets out that parties will be treated equally, this is likely to be considered to be part of the obligations of fair procedures and natural justice conferred by the Constitution and the European Convention on Human Rights.

WHAT CAN WE LEARN FROM THIS?

  • Regulatory bodies must respect the principle of equal treatment, particularly if policy documents state that the body is committed to applying it.
  • Parties subject to the same investigation are in a similar position and are entitled to expect equal treatment.
  • If the only difference between parties is that one has been given assurances and the other has not, a difference in treatment cannot be objectively justified.
  • If assurances are given by mistake, a regulator should withdraw the assurances to ensure that there is no difference in treatment between parties.