On 31 October 2014 the Competition and Consumer Protection Act 2014 (the “Act”) will come into effect. The Act will dissolve the Competition Authority and the National Consumer Agency and will establish the Competition and Consumer Protection Commission (CCPC). The CCPC will have the same statutory powers as the statutory bodies that it replaces.
The Act enhances the investigative powers of the CCPC in respect of breaches of competition law. Information over which legal privilege could currently be claimed may now, at the election of the CCPC be disclosed in a manner that maintains the confidential quality of the information pending a determination by the High Court as to the whether legal privilege could attach to that information.
The previous serious cartel offences (under section 6 of the Competition Act 2002) now fall within the meaning of a ‘relevant offence’ under the Criminal Justice Act 2011. Therefore it is an offence for an individual to fail to report to An Garda Síochána information of which he/she knows or believes would be of material assistance in the prevention of the commission or investigation of an offence – in this case cartel offences.
The Communications (Retention of Data) Act 2011 is also amended to provide that the CCPC may order the disclosure of internet and call data that a telecommunications company is obliged to retain pursuant to the Communications (Retention of Data) Act 2011 where the CCPC is satisfied that the data are required for the prevention, detection, investigation or prosecution of a competition offence.
Interestingly the CCPC may share information with An Garda Síochána, ODCE, Revenue and others, if the CCPC is of the opinion the information may relate to the commission of an offence that is not an offence under the provisions of the Consumer Protection Act 2007. Section 37 provides for further investigative powers to the CCPC and to the Gardaí in relation to the detention and questioning of suspects of competition offences.
The Act amends the financial thresholds which impose an obligation to notify a merger. The obligation will arise where, in the most recent financial year:
• The aggregate turnover of the parties in the State is not less than €50 million; and
• the turnover in the State of each of two or more of the parties is at least €3 million.
Under the new regime, the period of time that the CCPC will have to review a notified merger is increased to 30 working days in Phase 1 and 120 working days in Phase 2. These are significantly longer than the current time periods of one calendar month and four months. Further, in Phase 2, where a formal request for information is made or where remedies are proposed, the clock will stop. By way of mitigation of the negative impact of the extended time periods on notifying parties, agreements may be notified prior to the conclusion of the agreement where the parties can show a good faith intention to conclude an agreement.
Media mergers will be required to be notified to both the CCPC and the Minister for Communications, Energy and Natural Resources. The Minister will review the effect of the merger on media plurality in Ireland and the CCPC will review the merger vis-à-vis competition rules. At least one party to the merger must carry on a media business in Ireland which means that it must have a physical presence in the State and achieve sales in the State of at least €2 million in the most recent financial year.
The Act makes provision for the Minister to make regulations in relation to aspects of the commercial relationships between relevant grocery goods undertakings (i.e. a grocery goods undertaking engaged in the production, supply, distribution, wholesale or retail of grocery goods in the State, that has, or is a member of a group of related undertakings that has, an annual worldwide turnover of more than €50 million). The aim of these provisions is to regulate any unfair trading practices in retailer/supplier commercial relationships.
For more information in relation to the impact the Competition and Consumer Protection Act 2014 will have on your business, please contact Adrian Smyth at firstname.lastname@example.org