The Irish Government has today, 31 January 2022, published the long-awaited Competition (Amendment) Bill 2022 (the 2022 Bill) implementing the EU’s so-called ECN+ Directive into domestic law.
One of the key changes contained within the 2022 Bill is the grant of civil or administrative fining powers to the CCPC. Currently, the CCPC cannot make findings of infringement nor can it directly impose financial penalties. It can only seek to have alleged serious competition law offences tried by recommending that the Director of Public Prosecutions prosecute same on indictment in a criminal court before a judge and jury. The maximum penalties are up to 10% of most recent annual turnover and/or 10 years in jail. (Minor offences, subject to a small fine and/or a maximum of six months in jail, may be tried summarily in the District Court on prosecution by the CCPC). In either case, fines may only be imposed by a judge following a guilty verdict. The CCPC’s civil fining powers under the 2022 Bill remain subject to court oversight to ensure compliance with Article 34 of the Constitution.
Specifically, the 2022 Bill contains a similar mechanism to Section 14B of the current Competition Act 2002. Section 14B gives the CCPC the right to apply to have commitments given to it by an undertaking under investigation confirmed by High Court order. If the High Court order is breached, penalties for contempt of court may ultimately be imposed.
The 2022 Bill also:
- grants the CCPC surveillance powers in competition investigations;
- creates a new offence of bid-rigging;
- introduces a leniency programme for cartels; and
- gives the CCPC the power to review voluntary merger notifications in respect of completed transactions.
The deadline for transposition of the ECN+ Directive expired on 4 February 2021 and, accordingly, Ireland’s competition law enforcement system remains out of line with its EU law obligations until and if the 2022 Bill becomes law.
Contributed by: Colm Hogan