FAQs on Competition (Amendment) Act 2022
A summary of frequently asked questions relating to the Competition (Amendment) Act 2022 are listed below.
The Competition (Amendment) Act 2022 gives effect to the ECN+ Directive (2019/1) by further empowering the CCPC to investigate and enforce EU competition law in Ireland. The implementation of the ECN+ Directive is overdue and its purpose was to make national competition authorities more effective enforcers of competition law. In particular, the Act will give the CCPC, for the first time, the power to levy administrative financial sanctions. The Act also goes further than ECN+ by conferring investigative and surveillance powers and some enhanced merger control powers.
Yes. Currently, only the Irish courts can currently only impose criminal fines for violations of competition law, and the CCPC or DPP must demonstrate this to the courts using the "beyond reasonable doubt" criminal standard of proof in order impose financial penalties. Generally speaking, the CCPC has tended not to pursue criminal penalties before the courts breaches competition law. Following the implementation of the Act, it will be possible to issue administrative fines following a finding "on the balance of probabilities".
Currently, the CCPC cannot make any legally enforceable findings that there has been a breach by an undertaking of competition law. In effect its "enforcement decisions" which are essentially opinions of the CCPC and very far short of a formal finding of a breach. The CCPC also lacks the power to impose fines for a breach of competition law, to impose interim measures, or to directly grant immunity or leniency.
The Act introduces the first statutory leniency program in Ireland for those who report cartel activity. These leniency programmes are intended to both detect secret cartels and also to deter companies from entering into cartels which may make them eligible for a reduction in penalty.
The CCPC will be able to: (i) require parties to notify "below threshold" transactions; (ii) impose "interim measures" on parties such as preventing the parties from putting the deal into effect; and (iii) unwind / dissolve completed deals that would result in a substantial lessening of competition.
This is likely to occur on foot of CCPC market surveillance exercises and where the CCPC considers that the transaction "may have an effect on competition in Ireland".
In addition to the existing penalties, it will now formally be an offence to put a notified deal into effect before CCPC approval; and a failure to comply with a CCPC interim measure is also an offence.