New Competition and Consumer Protection Legislation
Major reforms of consumer protection and competition legislation have been announced with the publication on 31 March 2014 of the Competition and Consumer Protection Bill 2014. Its enactment will see the creation of a new agency to be known as the Competition and Consumer Protection Commission (CCPC) to replace the Competition Authority and the National Consumer Agency.
Apart from the establishment of the CCPC whose functions will be to promote and enforce competition law and to promote and protect the interests and welfare of consumers, the principal features of the Bill are as follows:
1. Increased Investigative Powers
By various measures the Bill seeks to increase and strengthen the powers of the CCPC in its investigation and prosecution of serious competition offences such as cartels and price-fixing. These measures include:
- A power to apply to court for an order requiring a person with relevant information to provide such information and to produce documents to the CCPC.
- The introduction of a new system for the detention and questioning of suspects.
- Measures relating to how documents are to be provided to the CCPC aimed at reducing the delays associated with the production of large volumes of poorly ordered and uncategorised documents.
- Measures designed to prevent unnecessary delays in investigations arising from claims of legal privilege, whereby material the subject of a claim of privilege may be removed by the CCPC and reviewed by the High Court to determine whether the claim of privileged is justified.
- Extending the provisions of the Criminal Justice Act 2011 to create a new offence of failing to report information which a person knows or believes might be of material assistance in the prosecution of a competition offence.
- Incorporating into the CCPC’s powers elements of the Criminal Justice Act 2007 in relation to the use of taped evidence at witness interviews allowing authorised taped witness interviews at Garda stations to be introduced as evidence in court in certain circumstances.
2. Merger notifications; Media Mergers
The Bill amends the existing merger notification procedures by allowing the CCPC a longer period for reviewing a proposed merger.
It also seeks to modernise the system for reviewing media mergers. The existing process involves a review of the proposed transaction on competition grounds (a review that will now be carried out by the CCPC) and, if approved, consideration by the Minister for Jobs, Enterprise and Innovation on the grounds of the public interest. Under the Bill, the public interest function is transferred to the Minister for Communications, Energy and Natural Resources. The Bill contains a definition of media plurality and incorporates a test to be applied by the Minister in the performance of his or her functions in relation to media mergers.
3. The Grocery Sector
On the consumer protection side the most noteworthy feature of the Bill is that it gives the Minister for Jobs, Enterprise and Innovation the power to make regulations governing the commercial relationships between undertakings in the grocery goods sector which, according to the Minister’s press release on the publication of the Bill, will be aimed at preventing certain practices such as the unilateral alteration of contracts by retailers, demands for “hello money” in return for space on supermarket shelves, or a requirement for suppliers to bear the cost of promotions by retailers or for wastage or shrinkage. The range of matters which the Minister will have power to regulate is quite considerable. Under the Bill the CCPC will have extensive investigative and enforcement powers to ensure compliance with any regulations made. In addition, any person who is aggrieved by the failure of an undertaking in the grocery sector to comply with any such regulations will have a right to apply to Court for relief, including exemplary damages.