On 20 January 2022, the Irish Deputy Prime Minister, Leo Varadkar, told Dáil Éireann – the more powerful of Ireland's two houses of parliament – that Ireland will publish new competition legislation during the week of 24 January 2022.
Mr Varadkar said that he would bring the Competition (Amendment) Bill 2022 to the Irish Cabinet on Tuesday, 25 January 2022 with the text of the Bill to be published later that week. It is likely to take some months before the legislation would be enacted and brought into force. There have been some indications as to what is in the proposed legislation.
The Competition and Consumer Protection Commission (CCPC) would have the power to impose "administrative fines" for some breaches of competition law. Ordinarily, under the Irish Constitution, only courts may impose fines or penalties. But the promoters of the proposed legislation believe that the implementation of an EU Directive – the ECN+ Directive – means that the CCPC must also be given the power to impose fines along with the courts which already have the power to do so under Irish law. It is likely that the courts will have the ability to review the imposition of fines by the CCPC which means that between (a) proceedings before the CCPC and (b) subsequent litigation, these cases could be somewhat lengthy.
The Tánaiste also mentioned that the CCPC could have more "powers on interception and, in particular, surveillance." This means, for example, that meetings and communications between business people suspected of being involved in breaches of competition law could be bugged. It is very tempting for competition agencies to invoke such powers but one could anticipate that any evidence collected could be the subject of careful scrutiny by the courts and challenge by those involved – as happened when the taking by the CCPC of computer-based evidence, taken under the existing legislation, was challenged successfully in the High Court and Supreme Court in the cement sector.
Not only will the CCPC have increased powers but it is also likely that the Commission for Communications Regulation (ComReg) will also have increased powers. It is also anticipated that the legislation will deal with so-called 'gun-jumping' by businesses involved in mergers and acquisitions – this involves companies not notifying transactions which must be notified to the CCPC and/or putting them into effect before the CCPC approves the transaction.
While promoters of the Bill express confidence in its likely success, it is well worth recalling that Irish competition law has had many amendments. It has been amended in 1991, 1996, 2002, 2006, 2010, 2012, 2014 and 2017 as well as this proposed new statute in 2022. Nine statutes in thirty-one years is more than most areas of law has seen in terms of reform. New laws mean that everything will be tried and tested for the first time. Sometimes, enforcers can find greater success with tried and tested provisions than newly minted ones. Ironically, few of the provisions which have been adopted so far have been tested so this will lead to new uncertainty.
The new laws could well help to enhance competition enforcement but it will be just one strand of a multi-stranded approach needed to increased compliance and enforcement.