Interesting Developments In 2017

Author:Mr Niall Collins
Profession:Mason Hayes & Curran

A key development in competition law in 2017 was the judgments in CRH plc v Competition and Consumer Protection Commission  (CCPC), which may alter the CCPC's approach to dawn raids. Last year also saw an increase in Phase I review periods to secure behavioural commitments in mergers. Several "firsts" in the enforcement space also occurred, including bid-rigging convictions and the Trucks  follow-on damages actions. In addition, 2017 witnessed a consultation on the Irish merger control thresholds, the output of which is likely to be an increase in the relevant thresholds.

Supreme Court issues long-awaited judgments in CRH plc v CCPC

The judgments concern an appeal by the CCPC against a High Court ruling, in favour of CRH and others. The case centred on a dawn raid carried out by the CCPC in 2015. The raid was part of a CCPC investigation into alleged abuses of dominance in the Irish bagged cement sector.

Although the CCPC does not have explicit seize and sift powers, it had adopted a practice during dawn raids of carrying out bulk seizure of data, for later review, without having first assessed the documents for relevance. In dismissing the CCPC's appeal, the Supreme Court was critical of the CCPC's practices. 

The judgments highlight the importance of acting within the confines of a warrant. They also reinforced that the right to privacy, set down in Article 8 of the European Convention on Human Rights, dictates that powers of search and seizure must be exercised in a proportionate way.

Increasing number of Phase I conditional clearance determinations   

The number of merger notifications in 2017 was up only slightly from the previous year, amounting to an increase of approximately 7.5%. Despite a relatively buoyant Irish economy, we would expect to see this dip further in 2018 if, following the Department of Business, Enterprise and Innovation's recent consultation, the financial merger control thresholds increase.  

Nonetheless, 2017 was an interesting year for mergers in at least two respects. 

First, the CCPC required a voluntary notification in a case where the merging parties did not meet the turnover thresholds for a compulsory filing (Mediawatch t/a Kantar Media/Newsaccess). The transaction was cleared after a relatively protracted Phase I investigation lasting 85 working days, subject to certain binding behavioural and structural commitments. 

Second, although the CCPC did not open any Phase II investigations in 2017, the CCPC...

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