The Competition Consumer Protection Commission (CCPC) has been recently allocated with increased resources and new powers which will enable it to expand its role in regulating the digital economy. In its Strategy Statement 2024-2026 (the Strategy Statement) published on 15 November 2023, the CCPC acknowledges the need to adapt to the rapidly evolving digital sector and to ensure sufficient resources are targeted at the regulation of the digital and data space.
Budget 2024 allocated an additional €4.9 million funding to the CCPC. This additional funding will be directed at the CCPC’s new responsibilities under competition and consumer protection legislation and related functions in data governance, digital services and artificial intelligence. At the time of publication of Budget 2024, Dara Calleary, Minister for Trade Promotion, Digital and Company Regulation welcomed the additional funding to the CCPC. He stated that “ensuring fair competition, an open, pro enterprise economy underpinned by robust regulation is necessary to meet the challenges ahead.”
The CCPC already has a Digital Investigations Division since 2021, which enhances the CCPC’s digital intelligence capability in Digital Forensics, eDiscovery and Open-Source Intelligence. It additionally partners with other CCPC enforcement divisions to provide support in digital investigations. This increased budget for the CCPC may mean that this division is better resourced to take on additional regulation mandates in the digital sphere.
The Strategy Statement indicates that the CCPC intends to build on the growth it has made in relation to the digital shift. It states that the CCPC has achieved this so far by expanding its portfolio and capacities and will continue to do so by ensuring that the CCPC is well-equipped and structured.
The CCPC has outlined its awareness that modern life and commerce increasingly operate online. The Strategy Statement notes that “information about our preferences and interests are harvested and monetised” and “AI and how it may impact on consumer interests and competition raise important issues.” The CCPC further states that it expects to receive new powers and responsibilities across a range of new and existing functions to address issues in digital and data markets.
In addition, the Strategy Statement outlines the CCPC’s stated ambition of determining how to utilise new functions and tools in relation to digital markets and data. It will decide what areas to focus on in digital markets and decide when it will lead and when it will support others, in particular, the European Commission (Commission).
Digital Markets Act
Whilst the Digital Markets Act (Regulation (EU) 2022/1925) (DMA) grants the Commission exclusive authority to enforce the DMA, it does make provision for national competition authorities (NCA’s) to play a supporting role.
The DMA provides for the Commission and Member States to work in close cooperation to coordinate their enforcement actions to ensure coherent, effective and complementary enforcement of available legal instruments applied to gatekeepers and allows the Commission to consult national authorities in relation to the application of the DMA.
Additionally, the DMA requires NCA’s (i.e. the CCPC) to coordinate with the Commission when applying competition law (beyond merger control) to gatekeepers. Given the long history of co-operation between the CCPC and the Commission as members of the European Competition Network, this should not be too challenging in practice.
Under the DMA, the Commission may request the CCPC to exercise its powers at a domestic level to support market investigations conducted by the Commission under the DMA. The CCPC can provide support in several ways including conducting interviews, requesting documentation, issuing requests for information, compiling market information through surveys and questionnaires, and providing expert analysis. It has broad powers to carry-out unannounced inspections (i.e. dawn raids) where it may seize, copy and retain books, documents and records and it may invoke its newly afforded powers under the Competition (Amendment) Act 2022 to use video and audio surveillance and intercept and record e-communications.
If an NCA has competence under national law, it can investigate possible non-compliance by gatekeepers with their obligations under the DMA but must report findings on possible non-compliance to the Commission so that the Commission may decide whether to open an investigation. The DMA indicates that this power could be particularly relevant where it cannot be determined from the outset whether a gatekeeper’s behaviour infringes the DMA and/or national competition law. An NCA could invoke this power for example if has competence, to investigate a gatekeeper’s conduct in relation to a product that has not been designated as a core platform service under the DMA.
It is noteworthy that once the Commission opens proceedings to investigate potential non-compliance with the DMA, Member States must step back from commencing or continuing any competition investigation. In this case, the CCPC falls back to a supporting role and will report its investigation findings to the Commission.
The CCPC also has a role, in tandem with the Commission, to monitor intended market concentrations involving gatekeepers. Gatekeepers are required under the DMA to inform the Commission of any intended concentration involving core platform services, services in the digital sector or which enable data collection. Once the Commission is informed by a gatekeeper of an intended concentration, the Commission will relay that information to NCAs. This engagement may then lead an NCA, such as the CCPC, to request the Commission to examine the acquisition under Article 22 of the European Union Merger Regulation (EUMR).
The Commission has recently re-invigorated the Article 22 EUMR referral mechanism to actively encourage NCA’s to refer sub-threshold mergers to the Commission, as illustrated by the Article 22 referral in Illumina/Grail (Case No. M.10188). Sub-threshold referrals are particularly relevant for digital mergers, which often involve start-ups or nascent companies, who may not currently be generating large turnovers, but who have the potential to increase and disrupt competition on existing and new markets. The CCPC has already demonstrated its willingness to cooperate with the Commission in sub-threshold digital mergers by joining Austria’s Article 22 referral in Meta/Kustomer (Case No. M.10262).
The indications are that the CCPC will have an expanded role in regulating the digital economy in Ireland. This is further reinforced with the CCPC being appointed as the competent authority for the supervision and enforcement of Article 30-32 of the Digital Services Act (Regulation (EU) 2022/2065) under the Digital Services Bill (published on 5 December 2023). Not only is there a clear strategy in place for the CCPC to bring the digital economy into focus, but there are increased resources and powers available to allow the CCPC take on additional mandates.
Tech companies based in Ireland should be aware of the CCPC’s expanding role in supporting the Commission with digital markets investigations and to monitor market developments. The CCPC has broad investigative powers and will engage in open dialogue with the Commission to ensure the effective enforcement of the DMA.