Do we need more layers of competition regulation?
The Bill will graft another layer of extensive regulation on business in Ireland
Richard Bruton: the Minister for Jobs, Enterprise and Innovation published the Competition and Consumer Protection Bill 2014 on March 31st
The Competition and Consumer Protection Bill 2014 (Bill) was published by the Minister for Jobs, Enterprise and Innovation on March 31st. The Bill makes a number of key changes to the application of competition law and consumer protection law in Ireland, and may be enacted as soon as next month.
To improve co-ordination between consumer protection and competition policies, the Bill dissolves the Competition Authority and the National Consumer Agency to establish a combined competition law and consumer protection body known as the Competition and Consumer Protection Commission (CPCC).
The Bill does not change the main Irish competition and consumer law requirements and rights, which include the prohibition on anti-competitive agreements and abuses of dominance; and the consumer law prohibitions on unfair, misleading and aggressive commercial practices.
However, the Bill does increase the criminal investigation powers to enforce competition law in Ireland. This includes allowing An Garda Síochána to make more effective use of detention periods where a suspect is being questioned and to apply to court for an order requiring any person with relevant information to produce documents, answer questions and provide information. In addition, telecoms and internet companies are now required to retain competition law-sensitive records for up to two years and to disclose on request; and it is an offence to withhold information about serious competition law breaches.
Until now, legal professional privilege prevented the authorities from taking legally privileged materials. The Bill allows the CPCC to take possession of materials that a business and its advisors claim are legally privileged and then have the High Court decide if such privilege really exists.
Whether or not these somewhat draconian enforcement powers are really needed by the CCPC and the Garda is doubtful given the extensive enforcement powers already available to them.
The Bill also changes the thresholds for the requirement to notify mergers to the CCPC with a greater focus on the effect of the merger on competition in Ireland. The Bill gives additional time for the CCPC to decide on notified mergers and this may significantly lengthen the merger review process in practice, though possibly counter-balanced by flexibility in when a notification can be made.
Notable changesTwo notable changes made by the Bill concern media mergers and the treatment of commercial transactions involving grocery goods.
The Bill makes substantial changes to the way media mergers are assessed. The Minister for Communications, Energy and Natural Resources will have the final say on notified media mergers with the involvement of the Broadcasting Authority of Ireland in contentious mergers. The CCPC will only review the competitive effect of a media merger as opposed to the key “media plurality” test assigned to the minister under the Bill (framed by reference to diversity of content and diversity of media ownership in Ireland).