Home Knowledge Changes to Competition Law Enforcement are Now Effective

Changes to Competition Law Enforcement are Now Effective

A new era has begun.  From now on, Irish enforcers may recommend fines for EU and Irish competition rules breaches.

The Competition and Consumer Protection Commission (CCPC) can also seek jurisdiction on below-threshold merger activity more readily.

These changes are due to the entry into force of the Competition (Amendment) Act 2022 (Act) on 27 September 2023. The Act aims to ensure the CCPC has effective investigation tools and appropriate enforcement powers.  The CCPC’s previous inability to recommend fines has long been out of step with other national competition authorities in the EU.

Key changes are:

  • ‘Calling-in’ below-threshold mergers: The CCPC can now more readily require parties to notify a non-notifiable merger where it learns about a deal that it considers may have a negative effect on competition in markets for goods and services in the State.  Interim measures can also be imposed where the CCPC considers a notified deal may undermine competition.
  • Quasi-administrative penalties: Where the CCPC (or ComReg) conducts an investigation, either in response to a complaint or of its own initiative, and believes there has been a competition law breach, quasi-administrative enforcement is now an alternative to seeking declaratory or injunctive relief or criminal prosecution.  For the CCPC, the choice of enforcement route will be influenced by its overall objectives, the nature of the alleged breach and the likelihood of successful action.  Any financial sanctions must meet statutory criteria (including ensuring they are proportionate, appropriate and effective as deterrents).  The CCPC has issued guidance on financial sanctions that sets out mitigating factors and circumstances that could increase the fine payable.
  • Specific prohibition on ‘bid-rigging’: The CCPC has been very vocal about the harm caused by a group of undertakings forming an agreement or concerted practice relating to a bidding or procurement process without informing the entity calling for bids.  To date, these practices have been investigated and prosecuted as a form of price-fixing or market sharing, but now, under the Act, ‘bid-rigging’ is a specific offence.
  • Administrative leniency policy (ALP) for cartels: Applicants can seek immunity from, or reductions in, quasi-administrative sanctions. The ALP is separate from the current Irish Cartel Immunity Programme (CIP) operated by the CCPC and the Director of Public Prosecutions: an undertaking granted leniency under the ALP is not necessarily immune under the CIP, and vice versa. Under the ALP, immunity is available for the first successful applicant, and subsequent applicants may benefit from a fine reduction of up to 50 per cent.  The CCPC has also extended the ALP to cover the non-cartel infringement of resale price maintenance.
  • Expanded surveillance powers: The CCPC can now ask the District Court to authorise surveillance to obtain information or evidence, previously a power only available to the military and Gardaí.

These changes do not fundamentally broaden the type of conduct that will break competition law rules.  But they do give the CCPC greater investigative powers and more scope to act meaningfully, both where it considers there has been a breach of competition law and where it wants to look under the lid of non-notifiable mergers.  Parties whose arrangements give rise to competition concerns can expect to encounter a massively detailed administrative regime and new ‘Adjudication Officer’ counterparties.  Pre-notification discussions (and possibly even voluntary notification) may become more common in the merger control space to manage competition risk for smaller transactions.

Contact our Competition & Regulation team if you would like further information.


Contributed by: Hilary Beattie