On 31 March 2014, Ireland published a Bill to amend Irish competition and consumer laws. The Competition and Consumer Protection Bill 2014 is a highly technical 96-page measure. The Bill is likely to enter into force later this year.
A&L Goodbody's EU, Competition & Procurement Law Unit will publish a more detailed analysis later but this document summarises the key points of the proposed new legislation published today:
- The Competition Authority and the National Consumer Agency would be merged: Consumers would become even more centre stage!
The Competition Authority and the National Consumer Agency would be merged into one competition and consumer body: the "Competition and Consumer Protection Commission" (the "CCPC"). This would be closer to the model used in jurisdictions such as Australia and the US. It would mean that consumer issues would be even more high-priority in the competition arena in Ireland. (The word "Commission" to describe both the new Irish and the existing EU competition agencies could cause some confusion and perhaps the word "Office" to describe the new Irish body would be less confusing.)
- Tougher Enforcement Regime
The Bill gives additional powers to the CCPC by extending the provisions of the Criminal Justice Act 2011 and the Communications (Retention of Data) Act 2011 to serious competition law offences. Indeed, elements of the Criminal Justice Act 2007 (which relate to the use of the taped-evidence at witness-interviews) would be incorporated into the powers of the CCPC.
The CCPC would have the power to apply to court for an order to require any person with relevant information to produce a wider range of records/documents, answer questions and provide information for the purposes of the investigation of relevant offences. Failure to comply with such an order would be an offence.
The Bill allows persons who are detained for questioning to be released and their detention suspended so that further investigations can be conducted during the suspension period. This would allow questioning of suspects to be suspended on a number of occasions rather than having to use all the time permitted for questioning in one interview.
The Bill provides for measures relating to how documents would be supplied to the CCPC. These measures are aimed at, according to the press release accompanying the Bill, "reducing the delays associated with the production of large volumes of poorly ordered and uncategorised documents in the course of their investigations." There would also be an offence for failure to report information.
- Client's Legal Professional Privilege to Come Under Pressure
A client (not the lawyer) has "privilege" in legal advice which it receives from a lawyer. The client may therefore decide to keep or waive the privilege in the advice. Privilege is a cornerstone of democratic societies and central to the proper administration of the law because it enables clients to have confidential discussions with lawyers.
The Bill would enable the CCPC to take away material (e.g., written advice and computers on which advice is stored) from businesses and others being investigated where the client claims privilege. The material must be kept confidential. It may then be reviewed by the High Court to determine whether privilege exists. The press release accompanying the Bill refers to "measures to prevent unnecessary delays in investigations arising from claims of legal privilege" – it would be unfortunate if legitimate claims of privilege by clients were seen as "unnecessary".
- New Merger Regime: Rules on Media Mergers, Joint Ventures and Timetables all to be Changed
Media mergers would be assessed in a new complex regime. The CCPC would continue to be involved in media mergers but under the Bill, it would be the Minister for Communications, Energy and Natural Resources who would ultimately determine if a media merger is allowed by reference to a "media plurality" test. The Minister for Jobs, Enterprise and Innovation who currently has a role to play in media mergers would no longer be involved.
Joint ventures would be notifiable if they are created on a "lasting basis" rather than the present "indefinite basis".
The new regime would operate on a "working days" basis rather than a "calendar days" basis which would lengthen the merger review process for business but ease the burden for the CCPC.
- Grocery Code Regime to be Introduced
The Bill aims at regulating certain practices in the grocery goods sector. The Bill gives the Minister the power to make Regulations (i.e., Statutory Instruments) to specify certain procedures that must be followed in commercial relationships between "undertakings" in the grocery goods sector. The measures are aimed at preventing certain practices such as unilateral alteration of contracts by retailers, requiring ‘hello money’ for space on supermarket shelves, suppliers being required to bear the cost of promotions by retailers or for wastage or shrinkage. A great deal will depend on what is contained in the Regulations rather than the Bill. The Regulations would deal with issues such as the form of contract, promotions, terms of payment, resolution of disputes, training of staff and retention of documents. Using Regulations rather than using primary legislation will mean that the regime will be more flexible but also more susceptible to political needs.
- More Studies
The CCPC would have power to promote competition and consumer welfare and may advise Government on such matters (e.g., commenting and reviewing on proposed and enacted legislation). The CCPC would also have the power to conduct studies in relation to financial services to consumers. This marks an enhanced role for the existing two agencies in the financial services sphere.
- Much Remains the Same!
The substantive competition rules relating to anti-competitive arrangements and abuse of dominance remain the same. Equally, the penalties for breaching competition law remain the same – fines of up to 10% of worldwide turnover on businesses and fines of up to €5million and jail terms of up to ten years on individuals. This is the seventh major amendment of Irish competition law since 1991 so a great deal of law has been built up over time and would remain unchanged.