European Commission’s consultation on empowering national competition authorities to be more effective enforcers – the CCPC’s response

March 21, 2016

The European Commission has expressed concerns regarding the divergent enforcement powers of the EU’s 28 national competition authorities (NCAs) and the risk that this creates of ineffective or inconsistent enforcement of EU competition law in different Member States.  In a very important initiative, the European Commission recently held a public consultation to gather views on whether the enforcement capacities of NCAs need to be strengthened in order to ensure that they can enforce EU competition law more effectively within their jurisdictions.  Following the consultation, the European Commission is now considering whether any action may need to be taken to address identified deficiencies in the enforcement regimes of the NCAs.

The consultation followed the adoption by the European Commission of a Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003 on 9 July 2014, which identified a number of potential areas for action.  The European Commission’s consultation invited views on these areas for action, in particular to ensure that:

  1. NCAs have adequate resources and are sufficiently independent;
  2. NCAs have an effective enforcement toolbox;
  3. NCAs can impose effective fines on companies that infringe EU competition law;
  4. NCAs have effective leniency programmes to encourage companies to come forward with evidence of illegal cartels.

The CCPC submitted a response to the European Commission’s consultation on 23 February 2016.  Our response will be published on the European Commission’s website in due course.

One of the key points made in our response is our view that civil fines should be one of the sanctions available to enforce competition law in Ireland.  Currently, the only remedies that the CCPC can obtain in civil proceedings before the Irish courts for breach of competition law are a declaration of illegality (i.e. a court ruling that a particular arrangement or behaviour is unlawful) and/or an injunction (i.e. a court ruling requiring the termination of a particular arrangement or behaviour).  The only circumstances in which fines can currently be imposed for competition law infringements under Irish law is following a conviction in a criminal trial.  Criminal prosecutions are appropriate for hardcore cartel activity, but not for other infringements, such as abuse of dominance, where complex economic issues arise.  When responding to the European Commission’s consultation, we  also submitted a copy of a paper on the issue of civil fines which was published in 2011 by the Commission’s predecessor, the Competition Authority, and a copy of the Law Reform Commission’s Issues Paper on Regulatory Enforcement and Corporate Offences.

The Law Reform Commission’s Issues Paper on Regulatory Enforcement and Corporate Offences was published on 27 January 2016.  It invites views on the supervisory and enforcement powers of the State’s main financial and economic regulators (which includes the CCPC), including whether civil financial sanctions should be more widely available to regulators as an enforcement tool.  We are currently preparing our response to the Issues Paper.  The deadline for responding is 30 March 2016.

The CCPC continues to engage with these issues at both a national and EU level.  On 20 January 2016, Gerald FitzGerald, a Member of the Commission, spoke about the significance of the European Commission’s consultation for the Irish competition enforcement regime at a Competition Law Forum event organised by the Irish Society for European Law.

The CCPC is also actively involved in discussions and initiatives at EU level through its participation in the European Competition Network.  The CCPC’s Chairperson, Isolde Goggin, has been invited to take part as a panellist in a public hearing in the European Parliament in Brussels on 19 April 2016 on the topic of “Empowering national competition authorities to be more effective enforcers of the EU competition rules”.  The public hearing is being co-organised by the European Parliament’s Committee on Economic and Monetary Affairs (ECON) and the European Commission’s Directorate General for Competition.

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