Five key takeaways from the EU Competition Conference, Dublin

Viewpoints
April 26, 2023
4 minutes

After more than a few false starts, the Irish competition law community remains cautiously optimistic that it will welcome a new enforcement regime before summer 2023. This was certainly the key message delivered by Una Butler, Commission Member of the Competition and Consumer Protection Commission (“CCPC”), at last week’s Informa conference on EU competition law in Dublin.

1.  Prepare for robust enforcement

Ireland’s new competition law enforcement regime will empower the CCPC and ComReg (the sectoral regulator for telecoms) to issue infringement decisions and impose administrative financial sanctions in respect of anticompetitive conduct for the first time. Both regulators were keen to pronounce their readiness for action, after a prolonged waiting period. Although European Directive 1/2019 had a deadline of February 2021 for transposition, the new Competition (Amendment) Act 2022 (the “2002 Act”) was only signed into law last summer. However, commencement has been further delayed to allow time for drafting of additional secondary legislation which is necessary for many of the practical matters required under the Act (such as the appointment of independent adjudication officers – see further below). However, the unprecedented hold-up may have acted in the enforcers’ favour as they seem to have been using their extra time wisely, expanding the workforce (albeit in a distinctly challenging labour market), developing a slew of new external guidelines and developing new detection tools in order to build a robust pipeline of new cases.

2.  Complexities of the new enforcement regime

While the Directive 1/2019 provided broad principles, mainly based on established European Commission practices in competition investigations, the transposition exercise required the design of a regime which will adhere to Irish law. As a result, the enforcement framework has more in common with the Central Bank of Ireland’s procedures for sanctioning regulated entities, than with the European competition law system. An aspect of the Irish competition regime which will be unfamiliar to many competition law practitioners is the new role of “Adjudication Officer”, which sits independently of any investigatory work and retains responsibility for deciding cases on behalf of the CCPC (or ComReg as the case may be). Secondary legislation will provide more insight on this role but according to CCPC representatives, there is scope to appoint a permanent Chief Adjudication Officer (presumably with a supporting staff) together with a panel of Adjudication Officers which can be drawn on for specific cases. Recruitment for these specialists is due to commence in the coming weeks and the agencies are hoping to attract talent and expertise from around the EU.

3.  Allocation of cases within the CCPC

The CCPC also gave insights into the types of cases on which it would be seeking to exercise its new powers. In particular, cartel detection and enforcement is being given additional prominence within the CCPC. The cartels unit has been split from other types of criminal enforcement (e.g. pyramid schemes and vehicle crime) to create its own internal division with an expanded staff. Investment has been put into cartel expanding detection tools (such as the introduction of a whistleblower platform) to complement the leniency regime established by the 2022 Act. Time has been spent advocating to obtain public procurement data to screen for potential cartels. Somewhat counterintuitively, a CCPC representative was keen to emphasise that all cartel cases would continue to be pursued criminally, although there will be scope for such cases to move to an administrative track at any time. Aside from cartels, the CCPC noted that resale price maintenance and abuse of dominance are key areas of focus for its new enforcement powers.

4.  Call in powers

2022 was noted as being a particularly busy year for the CCPC’s mergers team, with several phase II reviews and the organisation’s first prohibition decision. The 2022 Act will provide the CCPC with the power to call in mergers for review which do not meet the prescribed thresholds, a change which is mirrored in other EU member states. A CCPC representative indicated that these powers are expected to be used in respect of transactions which have a specific Irish nexus.

5.  Lessons from the European Court

Judge Suzanne Kingston delivered an excellent keynote speech providing valuable insights from European Court competition cases over the past year. One aspect that made a big impact on the audience was the fact that competition and state aid cases in the Court of Justice and the General Court make up only a small fraction (in 2022, 10% and 6% respectively) of the overall number of cases heard by those courts in a given year. The key lesson Judge Kingston wanted to deliver in this context was, in bringing cases before the courts, take a step back and examine whether links can be drawn with the broader constitutional framework of the EU. Indeed, this lesson applies just as keenly in Ireland, where substantive competition cases rarely come before the courts. Judge Kingston also drew on recent European Court activity to highlight the importance of robust investigation procedures in safeguarding the rights of defence of a company under scrutiny of a competition regulator. This will be an important aspect of the CCPC’s future cases, which are likely to face challenge as the boundaries of the new regime are established.

Looking ahead

2023 is shaping up to be a year of important developments. Not only will the 2022 Act come into force but the new FDI regime is also on track for this year. In addition many of the large technology companies which have significant operations in Ireland will commence compliance with obligations under the Digital Services Act (with its country of origin principle) and Digital Markets Act. We look forward to receiving next year’s conference agenda.