Competition Adjudication

Adjudication Officers

The competent authority is to  nominate adjudication officers to be appointed by the relevant Minister, in order to make decisions and otherwise to exercise functions under the Act. The Minister may make regulations concerning the creation of a panel of adjudication officers, the necessary requirements and qualifications, and the appointment of Chief Adjudication Officers. The Minister is required to appoint persons nominated by a competent authority unless they are not satisfied that the nominee meets the requirements and qualifications, or considers that the nominee does not have the necessary independence for the role.

Adjudication officers are to be independent, in  the performance of their functions and in relation to conflicts of interest and recusal. Members of competent authorities are prohibited from serving as Chief Adjudication Officer. The section makes further provision to prohibit members of a competent authority or its staff, who serve as adjudication officers, from performing any duties which are inconsistent with their independence, further requiring them to refuse to perform such duties if requested to do so.

Initial Steps

Upon receiving a referral, an adjudication officer is required, as soon as practicable, to give the undertaking / association of undertakings the below details, unless there is an oral hearing.

• A copy of section 15U;
• a written notice stating that the undertaking / association of undertakings may make submissions in writing on the full investigation report within 30 days of receiving the notice, which may be extended by up to 15 days by the adjudication officer; or
• a notice stating that the matter has been referred for an order of consent and asking the undertaking to confirm the settlement (administrative financial sanction or structural or behavioural remedy) within a period of 15 days of receiving the notice, which may be extended by up to 7 days by the adjudication

The adjudication officer may do any of the following to resolve an issue of fact or enable the making of a decision:

• Exercise any of the powers of an adjudication officer
• Request further information from an undertaking / association of undertakings;
• Request further information from any other person and may, for the purposes of doing so, provide a copy of the full investigation report with due regard for commercial confidentiality;
• Conduct an oral hearing

Powers of adjudication officers

An adjudication officer may on the application by the competent authority, the undertaking / association of undertakings concerned in the matter referred, or of their own motion:

• Direct authorised officers of the competent authority, or the undertaking / association of undertakings concerned (referred to as a party in the section), to answer an identified question in the manner or form specified by the adjudication Such answers may be under oath or otherwise;
• Direct a party to adduce evidence or produce books, documents or records in its power or control; and
• Direct a party to clarify any issue of fact that an adjudication officer may deem

An answer to a question put to a person is not admissible as evidence against the person in criminal proceedings, except proceedings for perjury if provided under oath. It further provides that a summons issued by an adjudication officer is the equivalent of any process for enforcing the attendance of witnesses and compelling the production of records, and that a person who is subject to a direction has the same immunities and privileges as a witness appearing before a court.

There are a number of offences relating to matters including failure to attend the time or place indicated on a summons without reasonable excuse, the refusal to give evidence, produce records or answer questions, actions that would be contempt of court if the adjudication officer were a court of law, intentionally or recklessly destroys, disposes of, falsifies or conceals a book, document or record or knowingly provides false or misleading information. Penalties for offences are also provided for under this section.

Decision Process Adjudication

There are provisions regarding the decision of the adjudication officer in relation to the following matters:

• An alleged infringement of relevant competition law;
• Breach of a procedural requirement;
• Failure to comply with a structural or behavioural remedy;
• Failure to comply with prescribed form of commitments; or
• Failure to comply with a prohibition

The adjudication officer is required to consider the following when making a decision:

• Statement of objections (and any supplementary statement of objections) prepared by a competition authority;
• The full investigation report prepared by the competent authority;
• Any written submissions made by the undertaking / association of undertakings on the statement of objections and the full investigation report;
• Any submissions, statements, admissions, information, records or other evidence provided to the adjudication officer in the course of proceedings;
• Any prior relevant decision of an adjudication officer under the Principal Act, except decisions not confirmed by the High Court.

The standard of proof for the adjudication officer’s decision is whether, on the balance of probabilities, the undertaking / association of undertakings, intentionally, recklessly or negligently committed an infringement of relevant competition law, breached a procedural requirement or failed to comply with a structural or behavioural remedy, prescribed form of commitments or a prohibition notice.

Decision

On making such a finding, the adjudication officer may impose:

• A structural or behavioural remedy;
• An administrative financial sanction; or
• Periodic penalty

The adjudication officer is required to provide the competent authority and undertaking / association of undertakings with a copy of the decision and the proposed penalties. The section also outlines the procedures for proposing and imposing a structural or behavioural remedy, administrative financial sanction or periodic penalty payment, the matters an adjudication officer must have regard to when imposing an administrative financial sanction, the details to be included in the decision of the adjudication officer.

The section also provides for matters for which the Minister may make regulations, the publication of guidelines on the conduct of proceedings by the competent authority, the imposition of administrative financial sanctions for agreed settlements and circumstances where an adjudication officer may award costs.

Notice of the decision is given to the competent authority by the adjudication officer, who  give the  notice, within 7 days of receipt, to the undertaking or association of undertaking concerned and details to be included in the notice. There are requirements and limitations in relation to the publication of decisions and the confidentiality of the content of notices before the publication of a decision.

Appeals

There are provisions in relation to the appeal against the decisions of an adjudication officer. There is a procedure for appeals to the High Court. The following appeals are provided for in the section:

• An appeal by an undertaking / association of undertakings that is the subject of a decision including one where a periodic penalty payment is Such an appeal must be made 28 days after receiving notice of the decision.
• An undertaking / association of undertakings affected by, but not the subject of, a decision may apply to the Court for leave to appeal against that decision; and
• A notified undertaking may appeal against a prohibition notice within 7 days after it is served with the prohibition notice.

The respondent to an appeal is the competent authority. There are procedural requirements for appeals and applications for leave to appeal, as well as the ability of the Court to set a time limit for payment of an administrative financial sanction it confirms or substitutes, and the awarding of costs.

Confirmations

There is a procedure for the confirmation decisions by the High Court that impose an administrative financial sanction, a periodic penalty payment, a hearing requirement periodic penalty payment or a structural or behavioural remedy. Applications for confirmation are made by the competent authority, provided that undertaking / association of undertakings does not appeal, and may be made ex parte if the undertaking / association of undertakings consents to the decision in writing.

The findings of fact of an adjudication officer are accepted as final in confirmation proceedings, but the Court may make determinations in relation to:

• Errors of law that are manifest from the record of the decision and fundamental so as to deprive the decision of its basis; or
• The sanction or remedy is disproportionate or in excess of the required sanction or remedy to be dissuasive or effective.

In cases where a determination on an error of law or the sanction / remedy is made, the Court may refer the decision made to the adjudication officer for reconsideration and make directions as it sees fit (including directing that a specific aspect of a decision is considered or if the matter should be reconsidered by another adjudication officer). In relation to sanctions or remedies, the Court may decide to lower an administrative financial sanction instead of referring the matter back for reconsideration. The section also provides for a number of other procedural elements.

Review

There are requirements and procedures for applications for judicial review by an adjudication officer, either on their own volition or at the request of a competent authority on a point of law arising from a referral under section 15M, or the questioning of the validity of a decision or act of a competent authority (including an authorised officer or an adjudication officer) either by an application for judicial review or under a process provided for by the Principal Act, 2002 Act or 2014 Act.

While the proceedings are held in public as a default, the hearing or part of the hearing may be held otherwse than in public if the court considers it appropriate to do so in the interests of justice.