Competition Proceedings

Investigations

Authorised officers may carry out investigations for suspected infringements, but must do so if directed by a competent authority. On the completion of an investigation, the authorised officer is required to submit a report to the competent authority, which the provision states must contain the following:

• The name of the undertaking or association of undertakings concerned;
• The investigative steps taken by the competent authority;
• The market or markets affected;
• The nature of the suspected infringement of relevant competition law;
• The authorised officer’s preliminary view as to whether or not there has been an infringement of relevant competition law;
• An outline of the facts and evidence upon which the authorised based his or her preliminary

Prohibition Notice

The competent authority may issue a prohibition notice where the authority suspects that there is a risk that an undertaking or association of undertakings will cause serious and irreparable harm to competition. The notice must state the authority’s suspicion of this risk, the reasons for the suspicion and specify the nature of the infringement of relevant competition law.

It may also give direction on measures to be taken to remedy any suspected infringement to which the notice relates, to avoid or limit serious and irreparable harm to competition or otherwise comply with or address matters specified in the notice. The notice must prohibit the continuation of the suspected infringement, must specify a period within which the notified undertaking may make written submission on the notice’s content, and must be signed and dated by the competent authority.

There are procedures for confirming measures to be put into effect under the notice, extending the period of the notice, amendments to the notice where it has issued in error or incorrect on a material respect, and for the notification of the European Competition Network by the competent authority. There is an  appeal against a prohibition notice to the High Court.

There are separate provisions to be applied depending on whether an infringement of relevant competition law is to be treated as a criminal or civil matter:

• Where it is a criminal matter, the competent authority may refer it to the DPP for the purposes of considering whether to bring criminal sanctions or bring summary proceedings.
• Where it is a non-criminal matter, the competent authority may issue a statement of objection or seek relief against an

The authority may take the following proceedings, in certain circumstances:

• Administrative financial sanctions;
• Commitments

Structural and behavioural remedies

Where a matter is referred to the DPP, if there are criminal proceedings, the competent authority may not take a summary prosecution  or proceedings unless the DPP decides not to commence or withdraws criminal proceedings.

A competent authority may issue a statement of objections in relation to any of the following matters:

• An infringement of relevant competition law;
• A breach of a procedural requirement;
• A failure to comply with commitments under section 15AE;
• A failure to comply with a structural or behavioural remedy ordered under section 15Z;
• A failure to comply with a prohibition

The statement must be in writing, state the preliminary view of the competent authority and set out its reasons for forming that view. The competent authority must also provide a copy of material it relied upon in forming its preliminary view, although this is also subject to certain requirements concerning redactions which may be considered necessary. The section also makes provision for procedures around the making, by the relevant recipient, of written submissions and the extension of periods in which such submissions may be made.

Further Steps

Following the period for written submissions, the competent authority may take any of the below actions following a statement of objections for an infringement of relevant competition law:

• Carry out further analysis or investigation;
• Close the investigation and take no further action;
• Enter into commitments with the relevant recipient under section 15AE;
• Agree a settlement at any time before a decision being made by an adjudication officer. This settlement may be for a structural or behavioural remedy or an administrative financial sanction; or
• Prepare a full investigation report and refer the matter to an adjudication

Where there is a statement of objections for failure to comply with a procedural requirement, commitments, a structural or behavioural remedy, or a prohibition notice, following written submissions, the competent authority may decide to take no further action or refer the matter to an adjudication officer.

There are further requirements regarding supplementary statements of objections on different points of law or fact, or new evidence, and regarding settlements with undertakings or associations of undertakings..

Investigations may be referred to an adjudication officer. Where there is a settlement, the competent authority must apply for an order of consent and furnish a simplified investigation report. Where the competent authority wishes to bring proceedings, it may refer the matter for decision to an adjudication officer and furnish a full investigation report, the statement of objections, if applicable the supplementary statement of objections, a copy of all material relied upon by the competent authority and any submissions made the undertaking or association of undertakings, including responses to statement of objections.

The competent authority retains the ability to enter into legally binding commitments with the undertaking or association of undertakings. The competent authority may withdraw a referral before or while it is being considered by an adjudication officer.

Enhanced Powers

Competition and Consumer Protection Act 2014 is expanded to include any vehicle and any place at which books, documents or records relating to the carrying on of a business are being kept. This expansion includes any place occupied by a director, manager or any member of staff of the undertaking / association of undertakings. The scope of powers to seize and retain any books, documents or records is also expanded to include computers or storage media, and expressly includes the taking and obtaining of copies and extracts from books, documents or records and continuing to search such items at premises other than the premises entered.

Authorised officers are also empowered to require assistance from any person who appears to them to be in a position to facilitate access to documents or records on data equipment or computers. This includes, providing documents or records in a legible and comprehensible form, giving any passwords necessary to make them legible or comprehensible, or otherwise enabling the authorised officer to examine them in a legible or comprehensible form. The section also provides powers to authorised officers to secure documents, records and any data equipment including computers, and to secure any place.

CCPC or any member or member of staff to whom it has delegated its functions,may in the course of an investigation into a suspected infringement of relevant competition law,  require information connected to and reasonably necessary for an investigation from a person or undertaking under investigation. Such a requirement must specify the period of time in which the requirement must be complied with, the context in which the information is requested and the circumstances of the person or undertaking of whom the requirement is made, and must not require the person or undertaking to admit to having infringed relevant competition law.

Surveillance

The 2022 amends  Criminal Justice (Surveillance) Act 2009 to expand its remit to the CCPC. The amendments provide for the following definitions:

• The definition of superior officer is amended to include, in the case of the CCPC, an authorised officer not below the rank of principal officer;
• The definition of relevant Minister to include the Minister for Enterprise, Trade and Employment in relation to approvals granted by a superior officer of, and documents and information in the custody of, the CCPC; and
• Definitions for authorised officer and relevant competition offence are also inserted into the Act.

The amendments extend the application of the Act to provide that surveillance may be carried out by authorised officers of the CCPC with a valid authorisation, or an approval under sections 7 and 8 of the Act. A superior officer of the CCPC may apply to a judge for authorisation to carry out surveillance. An authorised officer of the CCPC may carry out surveillance without authorisation, or use a tracking device, if this is approved by a superior officer, with the scope of circumstances where this may be approved also extended to relevant competition offences.

The complaints procedure is also amended to reflect the extension of surveillance powers to the CCPC, allowing the Referee to report a relevant contravention by the CCPC, and any recommendation on compensation, to the Minister for Enterprise, Trade and Employment.

Provisions on the review of the operation of the Act by a designated judge are also extended to the chairperson of the CCPC. Provisions around confidentiality of information, admissibility of evidence, disclosure of information and the making of regulations are also extended to the CCPC and Minister for Enterprise, Trade and Employment, as appropriate.

Mutual Assistance

There are provisions that transpose the mutual assistance elements of the ECN+ Directive:

• cooperation with other competition authorities;
• requests for the notification of preliminary objections and other documents
• requests for the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments
• general principles of cooperation; and
• provisions for jurisdiction of disputes concerning requests for notification or enforcement of decisions imposing administrative fines or periodic penalty