The Irish Competition and Consumer Protection Commission ("CCPC") is the successor institution to the Irish Competition Authority ("ICA") and the National Consumer Agency. Unlike the European Commission, the CCPC may not impose penalties because the power to do so is reserved to courts by virtue of the Irish Constitution. Nonetheless, it is able to investigate breaches and institute civil and more minor criminal proceedings before the courts (with more serious criminal proceedings being instituted by the Director of Public Prosecutions. Some of its investigations can be resolved without the need to go to court – an example of such a situation was the announcement on 25 March 2015 that the CCPC's investigation into alleged anti-competitive practices by Glasnevin Trust was resolved by way of a number of remedial measures.
Glasnevin Trust (also known as the Dublin Cemeteries Committee) is the largest provider of funeral services in Ireland. It operates five cemeteries and two crematoria in Dublin. It also operates Glasnevin Florists Ltd and Glasnevin Cemetery Monument Works Ltd ("GCMW") which creates and erects headstones. The CCPC clearly saw the Trust as an "undertaking" and subject to the competition rules.
In November 2011, the then ICA received a complaint in relation to alleged anti-competitive practices by Glasnevin Trust. It was alleged that Glasnevin Trust, and its subsidiary GCMW, were engaging in anti-competitive practices designed to put competing headstone providers at a competitive disadvantage. The complaint alleged that there was an abuse of dominance contrary to section 5 of the Competition Act 2002 (which is comparable to Article 102 of the Treaty on the Functioning of the European Union). The ICA identified a number of concerns and decided in March 2013 (16 months after receiving the complaint) to open a formal investigation. The CCPC recalled that "in the first instance, there appeared to be a lack of transparency for consumers in terms of the final cost of burial services. For example, in situations where consumers chose to erect a headstone some months after a burial, as is often the case, they were sometimes surprised to discover that a separate foundation fee was also payable, in addition to the funeral director’s costs and the cost of the burial plot and the headstone." It was also alleged that Glasnevin Trust was waiving, or reducing, this foundation fee if the consumer opted to purchase the headstone from Glasnevin Trust’s subsidiary company, GCMW, potentially putting other competing headstone providers at a competitive disadvantage. It was further alleged that Glasnevin Trust was discriminating against competing headstone providers in terms of waiting times for foundations, access to cemeteries and promotional activities.
The CCPC sought a number of remedial measures from Glasnevin Trust. Glasnevin Trust agreed to put a number of remedial measures in place and these included that Glasnevin Trust:
- will make its prices more transparent to consumers, making it easier for consumers to find a price list for burial plots and foundation fees on Glasnevin Trust website and in Glasnevin Trust’s offices. Glasnevin Trust has also agreed to inform consumers explicitly that foundation fees are not included in the purchase price of a burial plot and will also provide flexibility to consumers in terms of when these fees are payable;
- has taken measures to ensure that funeral directors will inform consumers of the separate cost of the foundation fee. For instance, before applying for burial services in Glasnevin Trust cemeteries, funeral directors are required to confirm to Glasnevin Trust that they have informed consumers of the foundation cost. This was justified, the CCPC believed, because many funeral directors often act on behalf of bereaved families;
- agreed to treat competing headstone providers in an equal and non-discriminatory manner in terms of waiting times for permits and foundations, access to cemeteries and regulatory requirements;
- agreed to allow competing headstone providers to advertise in Glasnevin Trust promotional brochures subject to the payment of the same fees payable by GCMW for such advertising.
Based on these measures, the CCPC said it is satisfied to conclude its investigation without any further action. The Commission wishes to acknowledge that Glasnevin Trust co-operated fully and in a timely manner throughout the investigation. The CCPC commented: "[t]hese measures, relating to the provision of burial plots, headstones and headstone foundations, mitigate the alleged anti-competitive practices and ensure the protection of consumers. The changes being implemented by Glasnevin Trust, as a result of the Commission’s intervention, represent a positive outcome for consumers and for headstone providers who compete with Glasnevin Trust. An important outcome is the agreement by Glasnevin Trust to make its prices more transparent to consumers and, critically, to amend the price list it circulates to funeral directors to reflect this more transparent approach. Funeral directors play a significant role in interacting with bereaved families. For this reason, the Commission also reminds funeral directors of their responsibility to ensure that information on pricing of funeral and related services is communicated in a clear, transparent and timely way to their customers."
Any initiative to make such a difficult time less stressful is very welcome. However, the principles embodied in this case (particularly, about tying and pricing transparency) will have wider implications. It is also very welcome that the CCPC was able to resolve the matter without the need to go to court. Such settlements, which are often by way of agreement, should be given greater statutory recognition but are nonetheless useful. It is also welcome that the CCPC spent some time on an abuse of dominance case because there are often more dominance issues in some countries than some national competition agencies are willing to recognise (preferring to concentrate on cartel investigations). It is notable however that the full investigation took over three years to complete - even without litigation being needed – which seems unduly long.