Proposed Legislation Granting Additional Competition Enforcement Powers

Author:Ms Helen Kelly

A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the Competition and Consumer Protection (Amendment) Bill 2018, the CCPC would be empowered instead to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.

Key provisions

Power to impose administrative penalties

The CCPC would issue a direction requiring an undertaking to pay a fine not exceeding €100 million or 10% of its turnover where the commission determines that the undertaking has engaged in:

anti-competitive practices in breach of Section 4 of the Competition Act 2002; or an abuse of dominance in breach of Section 5 of the Competition Act. High Court confirmation

A High Court judgment would be required before any CCPC direction could take effect and the undertaking concerned would have 30 days from the date of receipt of the CCPC direction to appeal its decision to the High Court.

The High Court may then confirm, revoke or replace the direction with another appropriate direction.

If no appeal is made within 30 days, the CCPC must apply to the High Court for confirmation of its direction to impose the relevant penalty.

Penalty levels

The new bill sets out considerations for the CCPC and the High Court when determining penalties, including:

the appropriateness and proportionality of the measure to the prohibited conduct; whether the penalty would sufficiently deter future similar conduct (if applicable); the seriousness of the prohibited conduct; the turnover of the undertaking in the financial year immediately preceding the prohibited conduct; and failure by the undertaking to cooperate with the CCPC's investigation. Wider context

The CCPC has been calling for civil enforcement powers for many years and there is no reason to believe that this particular proposal will gain any more traction than previous efforts, which have stalled in the absence of strong government support. However, this draft bill provides some insight into what the CCPC's powers could...

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