CCPC Launches Series Of Consultation Papers On Irish Competition Law Powers – Anti-trust/Competition Law

On 14 February 2022 the Competition and Consumer Protection
Commission (CCPC) announced that it would be
conducting a series of consultations on the competition law
enforcement powers contained in the Competition (Amendment) Bill
2022 (Bill). (For further information on the Bill
see our previous article here).  The Bill proposes to transpose
the ECN+ Directive into Irish law which empowers EU Member State
competition authorities to be more effective in the enforcement of
competition law.   

The first round of consultations, which closed 11 March 2022,
sought submissions on the following areas:

• New Administrative Leniency Policy (ALP) for
  cartels; 




• Guidance on the interaction between the Cartel Immunity
  Programme (CIP) and the ALP for cartels; and




• Guidance on the CCPC’s choice of enforcement regime for
  breaches of competition law. 

It is understood that further consultation papers regarding
administrative financial sanctions and additional guidance on
leniency are due to open for submission in the coming weeks. The
consultation process affords stakeholders the opportunity to
provide information and different perspectives on the proposed
issues. 

New Administrative Leniency Policy for Cartels

The new ALP outlines the policy of the CCPC in considering
applications for leniency from undertakings that disclose their
participation in cartels.  It also sets out the necessary
requirements to qualify for leniency under the Competition Acts
2002 to 2017 (Competition Acts).  Leniency in
this context refers to immunity from administrative financial
sanctions (Type 1) or reduction in administrative financial
sanctions (Type 2).  A cartel under section 3 (1) of the
Competition Acts, is defined as an agreement or concerted practice
between two or more competing undertakings aimed at coordinating
their competitive behaviour on the market or influencing the
relevant parameters of competition through practices.  Cartels
are prohibited by section 4 of the Competition Acts and Article 101
of the Treaty on the Functioning of the European Union
(TFEU).

As set out in the ALP, to qualify for leniency, the applicant
shall:

• End its involvement in the alleged cartel; 




• Cooperate fully with the CCPC; and




• Not destroy, falsify, or conceal any evidence within the scope
  of the application.

In addition to meeting the above requirements, it is notable
that:

• Immunity from administrative financial sanctions is only
  available to the first participant in a  cartel; and




• A possible reduction of up to 50% of any administrative
  financial sanctions that would otherwise be imposed, is available
  to a second or subsequent participant in the same cartel that
  applies for leniency. 

Guidance on the Interaction between the Cartel Immunity
Programme and the ALP for Cartels

The CCPC also sought submissions on guidance on the interaction
between the CIP and the ALP. The CIP outlines the policy of both
the CCPC and the DPP in considering applications for immunity from
prosecution for criminal cartel offences under the Competition
Acts. 

The decision as to whether ALP or CIP will apply is a matter for
undertakings to consider.  An undertaking granted leniency
under the ALP will not automatically be immune from criminal
prosecution. The same applies for immunity under the CIP – this
will not entitle the undertaking to an automatic right to
administrative leniency where the CCPC pursues administration
enforcement proceedings against it. 

Therefore, the CCPC has expressed its expectation that
undertakings in need of protection may wish to apply under both the
CIP and ALP to obtain immunity from criminal prosecution and
leniency regarding  administrative financial sanctions.
Applications received under both the ALP and CIP will be dealt with
concurrently by the CCPC, as far as practicable. 

Guidance on the CCPC’s choice of enforcement regime for
breaches of competition law

Competition law in Ireland is regulated by the Competition Acts
and the TFEU.  Under the Bill, it is proposed that the CCPC
may impose administrative financial sanctions on undertakings and
associations of undertakings for breaches of competition law,
including cartel offences, subject to Court confirmation. 
This is a key change proposed under the Bill.  The CCPC will
continue to have the power to impose criminal sanction pursuant to
sections 6, 7, 7A and 8 of the Competition Acts. 

The CCPC will exercise its statutory discretion to decide the
appropriate enforcement mechanism on a case-by-case basis. The
preferred mechanism will be communicated to the parties at the
CCPC’s earliest convenience, however the CCPC retains a
discretion to select a different enforcement mechanism at a later
stage. 

If you wish to discuss any aspect of this article in more
detail, or need advice on competition law in Ireland, please
contact Paul Convery, Laura Murdock, or your usual William Fry
contact.

Contributed by Louise Coughlan

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.