Competition Commission

Table of Contents

CCPC 2014

The Competition and Consumer Protection Act 2014 provides for the establishment of the Competition and Consumer Protection Commission,the dissolution of the Competition Authority and the National Consumer Agency.The Competition is to be independent in the performance of certain functions on establishment (e.g. enforcement).

The Act consolidates into the CCPC, the functions that had applied to the Competition uthority and the National Consumer Agency under their respective statutes. These functions include provisions allowing for

the promotion of competition,
promotion and protection of the interests and welfare of consumers,
enforcement of and ensuring compliance with relevant statutory provisions,
investigating suspected breaches of relevant provisions (including breaches of Articles 101 and 102 of the Treaty on the Functioning of the European Union),
setting the strategic objectives of the CCPC,
advising Government, the Minister
for Jobs, Enterprise and Innovation and any other Minister or public body in relation to any matter (including legislation) likely to impact on consumer protection and welfare or competition,
promotion through public awareness and information campaigns, promotion of the development of alternative dispute resolution procedures as a means of resolving disputes arising out of certain consumer transactions, preparation of guidelines,
reviewing and approving certain codes of practice,
promotion of the interests of consumers of financial services, co-operation with similar bodies (either in the State or beyond),
undertaking relevant research,
supporting (if deemed appropriate by the CCPC) voluntary bodies whose activities cover consumer protection and welfare or competition, and
carrying out studies on any issue relating to consumer protection and welfare or competition (either at the request of the Minister for Jobs, Enterprise and Innovation or on its own initiative).

The Minister for Jobs, Enterprise and Innovation may request the CCPC to carry out studies or analyses into issues that come under its remit.

The Commission has supplementary powers in respect of its financial information and education functions including undertaking studies, analyses and surveys with respect to the provision of financial services to consumers. These powers include compelling persons to provide information or to appear in person before the Commission. Any person causing an obstruction in this regard is guilty of an offence and on conviction may be fined or imprisoned or both.

Governance

A member of the Competition Authority or the Chief Executive Officer (CEO) of the National Consumer Agency shall be a member of the new Commission. The Chairperson of the Competition Authority became the Chairperson of the Commission on the establishment day.

The Commission consists of a Chairperson and between 2 and 6 whole-time members which, must be appointed by the Minister following recruitment in accordance with the Public Service Management (Recruitment and Appointments) Act 2004 for a fixed term period of no more than 5 years.

Members are eligible for reappointment. THere are provisions for the appointment of temporary members by the Minister for an aggregate period of not more than 12 months where vacancies arise, for the resignation of members and for the removal of members in certain circumstances.

Members of the CCPC, including the Chairperson, a member of staff of CCPC and authorised officers, may be indemnified by the CCPC against all actions or claims in respect of the discharge by them of their duties provided such duties were discharged in good faith.

The chairperson of the CCPC is to manage and control the general administration of the Commission. There are provisions for the meetings and procedures;They provide that the quorum for a meeting shall be 3 (unless otherwise directed by the Minister), that the Commission can meet even if vacancies exist at member-level and that every question, on which a vote is required at the meeting of the Commission, shall be determined by a majority of the votes of those members present: the Chairperson will have a casting vote in the case of a tie.

Role and Powers

The CCPC has a role in reviewing and submitting proposals for legislation relating to consumer protection and welfare and competition issues and also gives the Minister for Jobs, Enterprise and Innovation the power to consult the CCPC in relation to legislative proposals for consumer protection and welfare and competition.

The CCPC has investigative powers including the power to summons witnesses, examine witnesses on oath, requiring witnesses to produce records, etc. It is an offence

to give false or misleading information to the CCPC,
to fail to attend as a witness before the CCPC following a summons to attend,
to refuse to take an oath or produce records when requested to do so by the CCPC or
to engage in any activity that would be deemed to be contempt of court (if the Commission were a court with powers to commit for contempt of court).

The CCPC may enter into co-operation agreements with a number of other prescribed bodies mainly sectoral regulators (e.g. the Commission for Aviation Regulation, the Commission for Communications Regulation, the Commission for Energy Regulation or the Health Insurance Authority) to facilitate co-operation in the areas of consumer protection and welfare and competition, avoid duplication of activities, help ensure consistency between decisions made by the bodies and engage in joint studies.

The agreements shall be in writing and that the relevant Ministers be copied with the agreements. Other bodies may be added to the list of specified bodies by the Minister for Jobs, Enterprise and Innovation in consultation with other relevant Ministers.

The Minister may give general policy directions to the Commission in relation to the performance of its functions (with the exception of the functions reserved to the CCPC e.g. enforcement functions) which the Commission shall comply with and lay copies of those written directions before each House of the Oireachtas.The CCPC may agree arrangements for the exchange of information with similar bodies abroad.

There may be disclosure by the CCPC to named bodies of information relating to offences and provides for those bodies to disclose information in relation to the commission of an offence under the relevant statutory provisions to the CCPC.

The chairperson of the CCPC is accountable to the Public Accounts Committee. The chairperson is also accounatble to other Oireachtas Committees.

The CCPC may appoint its own staff on terms and conditions to be determined by the CCPC with the consent of the Minister for Jobs, Enterprise and Innovation and the approval of the Minister for Public Expenditure and Reform.

Accountability

The CCPC shall prepare a scheme(s) for the granting of superannuation benefits. The CCPC shall submit a strategy statement to the Minister for Jobs, Enterprise and Innovation every 3 years (including the information to be included in the strategy) which the Minister will cause to be laid before the Houses of the Oireachtas.

It also provides that the CCPC will publish this strategy on the internet as soon as practicable after the strategy statement has been laid before the Houses of the Oireachtas. The CCPC will provide a work programme annually to the Minister. The Minister may also issue directions or guidelines to the CCPC concerning the preparation of that programme with which the CCPC shall comply.

The CCPC shall furnish Annual Accounts which the Minister will cause to be laid before the Houses of the Oireachtas. The CCPC is to furnish an Annual Report which the Commission will publish, as soon as practicable, after it has been laid before the Houses of the Oireachtas by the Minister.

Authorised Officers

The CCPC may appoint authorised officers. It is an offence for

anyone falsely representing themselves as an authorised officer
anyone obstructing or impeding an authorised officer in the course of his/her duties, failing to comply with a request or requirement of an authorised officer without reasonable excuse or supplying false or misleading information to an authorised officer.

An authorised officer may serve a summons in certain cases.

There are powers for authorised officers in relation to their functions relating to non-competition law offences including consumer protection and grocery goods provisions and largely replicates many of the powers set out in the Consumer Protection Act 2007.

There are powers for authorised officers in relation to their functions relating to competition law offences and largely replicates many of the powers set out in the Competition Act 2002. It also provides that an authorised officer may attend, with a member of An Garda Síochána, any questioning of a suspect and participate in any such questioning. There is power to use recordings as evidence in trials, analogous to those set in the Criminal Justice Act 2007.

Commission for Communications Regulation is added to the list of relevant bodies that can seek undertakings to be made a rule of Court.

Whistleblowers

There is protection for persons who report breaches of relevant statutory provisions and provides for offences for false reporting of alleged breaches. There is a procedure for dealing with claims of legal privilege.

Undertakings

Undertaking means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service and, where the context so admits, shall include an association of undertakings.”

‘competing undertakings’ means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.”

Where the competent authority seeks relief by way of interim or interlocutory injunction, the Court shall not, save in exceptional circumstances, as a condition of granting the injunction, require the competent authority to lodge an undertaking in respect of damages with the Court. An action may be brought in the Circuit Court or in the High Court.

Mergers

Mergers include

where one or more individuals who already control one or more undertakings, or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings, or”, and
the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed, and for the purposes of this paragraph ‘assets’ includes goodwill.”,

Where in relation to a proposed merger or acquisition, in the most recent financial year-

the aggregate turnover in the State of the undertakings involved is not less than €50,000,000, and
the turnover in the State of each of 2 or more of the undertakings involved is not less than €3,000,000, or
a proposed merger or acquisition falls within a class of merger or acquisition specified in an order

each of the undertakings involved in the merger or acquisition shall notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect.

Merger Notification

A notification must be made before the proposed merger or acquisition is put into effect. It may be made after any of the following applicable events occurs:

one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted;
the undertakings involved demonstrate to the Commission a good faith intention to conclude an agreement or a merger or acquisition is agreed;
in relation to a scheme of arrangement, a scheme document is posted to shareholders.”,

References to turnover in the State are substituted for “references in them to the world-wide turnover and turnover in the State”.

In the case of a proposed merger or acquisition that is not required to be notified any of the undertakings involved in the merger or acquisition may, before putting the merger or acquisition into effect, notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect.

The Commission may, for the purposes of this Part, request or accept notification of a merger or acquisition to which the above provisions applys but which was purported to have been put into effect without having been notified,

The undertaking or undertakings concerned request, in writing, an extension to the specified period, the Commission may, where it considers it appropriate to do so, extend that period.