As we head towards the end of the year, what have been the most notable Irish competition law highlights so far?
- March 2020 – COVID-19 - As a result of COVID-19, the CCPC encouraged notifying parties where possible to delay filing planned merger notifications until further notice. Where not possible, the CCPC requested that notification forms and all supporting documents (i.e., material contained in annexes and appendices to the notification form) required by the CCPC be submitted in electronic format by email to the CCPC.
- July 2020 – Merger Procedure - The CCPC instituted its "Simplified Merger Notification Procedure Guidelines" (Procedure) on 1 July 2020. The Procedure has been applied on 4 occasions so far in 2020. One merger notification was made under the Procedure but the CCPC reverted back to its normal time period for assessment when it concluded that the notification did not qualify because a third party raised a competition issue with the transaction.
- Number of merger notifications - To date, there have been 32 merger notifications to the Competition and Consumer Protection Commission (CCPC) with one on-going Phase 2 notification. At this time last year, there had been 34 merger notifications with no Phase 2 cases.
- Trends - Significantly more formal requests for further information have been made by the CCPC in 2020 than in 2019. Commitments by notifying parties continue to play a part in a number of approvals by the CCPC.
- Timing - No issues merger notifications (outside of the Procedure) have been cleared by the CCPC on average in approximately 35 days from notification. The average time for merger notifications to be cleared by the CCPC under the Procedure is approximately 18 days.
- February 2020 – Cement Sector - The CCPC started a competition investigation in 2014 about alleged exclusive purchasing arrangements in the bagged cement sector, including exclusive rebates, target rebates and other practices. The CCPC closed the investigation due to insufficient evidence of a breach of competition law.
- March 2020 - COVID-19/ECN - In light of Covid 19, the CCPC published the Joint Statement by the European Competition Network (ECN) on the application of competition law during the COVID-19 crisis and reminded companies that "the ECN will therefore not hesitate to take action against companies taking advantage of the current situation by cartelising or abusing their dominant position".
- June 2020 - Beef Sector - The CCPC wrote to a number of interested parties regarding the outcome of an examination of reported issues within the beef sector. Based on the information available to it, the CCPC formed the view that there was insufficient evidence of a breach of competition law to warrant taking any further action at that time.
- June 2020 - Public Liability Insurance Study - The Minister for Business, Enterprise and Innovation had requested the CCPC to commence a market study into the public liability insurance sector in Ireland in 2019. The CCPC opened a public consultation in June 2020 seeking views on the public liability insurance market. The consultation will provide the CCPC with further information to make a fully informed assessment of the market.
- July 2020 - COVID-19 and Competitive Behaviour - the CCPC issued a press release alerting businesses that they must act independently when setting prices during COVID-19 reopening phase in Ireland. The CCPC noted that as a result of the COVID-19 crisis, "businesses may be reviewing their prices or considering whether or not to introduce additional charges to cover the cost of providing a service which is in line with Government public health requirements. Businesses are free to do so, however the CCPC is reminding businesses that they must make such decisions independently and advise consumers of these costs before they make a purchase. Similarly, trade associations are free to advise their members on how to address the challenges they are facing. However, the practice of trade associations suggesting future prices, or coordinating ways of passing on costs to consumers, could constitute an infringement of competition law. As a result the CCPC has engaged with a number of trade associations in recent weeks to remind them of their obligations under competition law."
- September 2020 - Private Motor Insurance Investigation - The CCPC issued preliminary findings to a number of insurance-related organisations under investigation (since 2016) in the private motor insurance sector. The preliminary findings of the CCPC alleged "that these organisations engaged in anti-competitive cooperation over a 21-month period during 2015 and 2016. The alleged anti-competitive cooperation consisted of public announcements of future private motor insurance premium rises as well as other contacts between competitors, all of which reduced levels of competition between the parties. The CCPC’s findings are provisional and no conclusion should be drawn at this stage that there has been a breach of competition law." The relevant parties have been given the opportunity to consider and respond to the CCPC's preliminary findings.
- October 2020 - Dawn Raids - while not in relation to competition law, the CCPC carried-out consumer protection law-related dawn raids of garages and second-hand car dealerships in Dublin and Kildare.
- October 2020 - Vertical restraints - the CCPC extended the validity of its "Declaration in respect of vertical agreements and concerted practices" (Declaration) until 1 December 2022. The Declaration came into effect on 1 December 2010 and would have expired on 1 December 2020. The Competition Act 2002 (as amended) (Competition Act) permits the CCPC to declare in writing that a specified category of vertical agreements, decisions or concerted practices are not prohibited by Irish competition law. The Declaration closely resembles the Vertical Block Exemption Regulation (VBER), which is currently being reviewed by the European Commission, in advance of its expiry in May 2022. The CCPC will consider any potential changes to the VBER as a result of the European Commission review and will subsequently consult on potential revisions to the Declaration.
Brexit will not change the specific Irish (and EU) competition law rules as at 1 January 2021 (e.g. under the Competition Act or the EU competition law rules under the Treaty on the Functioning of the Europeran Union) but may affect their practical application (e.g. in terms of the number of merger notifications and the way EU (and Irish) competition law interact with the application of UK competition law).