knowledge 31 January 2022 |

New Irish Competition Law Proposed – 4 Key Takeaways

A radical new enforcement architecture, proposals for big “administrative” fines, lower thresholds to prove violations, and enhanced surveillance powers, plus important reforms to Irish merger rules, are among reforms proposed by Dublin today.  Here’s our 4 takeaways from The Competition (Amendment) Bill 2022:  

1. Violations will be Easier to Prove

Ireland’s experiment with an exclusively criminal enforcement regime, requiring sanctionable violations to be proven beyond reasonable doubt in a jury trial, is over. New rules, if adopted, will lower the bar by providing for proof on the balance of probabilities of breaches of competition law.  Any business found to have “intentionally, recklessly or negligently” breached competition law may be liable. 

2. Fines will be Higher

Fines up to €10 million or 10% worldwide turnover (whichever is greater), boldly proclaimed “non-criminal” in nature, are proposed.  Recall that the single highest fine imposed on a business in 20 years of Irish criminal enforcement is €80,000.  Fines for criminal violations are to be increased, up to the greater of €50 million or 20% of turnover.

3. But Enforcement Will Remain Challenging

A new and untested enforcement process, termed “administrative proceedings” in the Bill, is a significant departure for Irish law.  So-called adjudication officers, nominated by the CCPC and approved by the Minister, and paid “per diem, per piece or periodically”, will effectively determine liability for breaches, may issue “prohibition notices” (effectively cease and desist orders), and may order divestment or other structural remedies.  

4. Merger Control Reforms will Increase Uncertainty

New gun-jumping prohibitions, mandatory information requests for third parties, and CCPC powers to intervene and review below-threshold deals are proposed.  Notably, the CCPC will be able to require parties to notify any deal, no matter its size, if the CCPC believes it “may … have an effect on competition”. The CCPC will also have powers to require businesses to unwind certain completed mergers, if the CCPC believes the deal may harm competition.