The Competition and Consumer Protection Commission (“CCPC”) was established on 31 October 2014 under section 9 of the Competition and Consumer Protection Act 2014, following the amalgamation of the Competition Authority and the National Consumer Agency. One of the CCPC’s principal statutory functions as a competent authority is to investigate suspected breaches of EU and Irish competition law (i.e. Article 101 and Article 102 of the Treaty on the Functioning of the European Union (“TFEU”), and section 4 and section 5 of the Competition Act 2002, as amended, (the “Competition Act 2002”), respectively). ComReg was empowered as a competent authority for competition law under the Communications Regulation (Amendment) Act 2007, specifically in relation to the electronic communications sector.
At the conclusion of an investigation into a suspected breach of Irish or EU competition law, the competent authority may form the view that an infringement of either section 4 or section 5 of the Competition Act 2002 (and/or Article 101 or Article 102 TFEU) has occurred. It may then decide to initiate civil or criminal proceedings in the courts against the undertaking(s) and individuals (including company directors and managers) involved. In Irish law, the power to impose financial sanctions for breaches of competition law is reserved exclusively to the criminal courts.
Section 14A of the Competition Act 2002 sets out the two possible civil sanctions available. The competent authority may seek 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 a particular arrangement or behaviour to be terminated).
The Competition Act 2002 provides that all infringements of competition law are potentially criminal in nature and section 8 of the Competition Act 2002 sets out the possible criminal sanctions. If a summary criminal prosecution is brought for breach of competition law, the District Court may impose fines of up to €5,000 on the business or individual concerned and/or a prison sentence of up to 6 months on an individual. On conviction on indictment for competition law offences, the Central Criminal Court may impose fines of up to €5 million or 10% of annual turnover on a business or individual. In the case of ‘hardcore’ breaches of competition law, the Central Criminal Court can impose a term of imprisonment of up to 10 years on an individual. In addition, section 839 of the Companies Act 2014 (in conjunction with the Companies Act 2014 (Section 839) Regulations 2016 (S.I. No. 147 of 2016)) provides that individuals convicted on indictment for a competition law offence are automatically disqualified from acting or being appointed as a director or other officer, auditor, receiver, liquidator or examiner, or being in any way concerned in the management of a company for a period of five years after the date of conviction (or for such other period as the court may order).
In addition to seeking the civil and criminal sanctions described above, negotiated compliance agreements can be sought by the competent authority pursuant to section 14B of the Competition Act 2002. This mechanism provides that a party under investigation may offer binding commitments or undertakings to the competent authority to allay its competition concerns and thereby bring the investigation to a close. The commitments are then made an order of the High Court, breach of which exposes the responsible party to contempt of court.
Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market was published in the Official Journal of the EU on 14 January 2019. Known as the ECN+ Directive, it has to be transposed by 4th February 2021 and will give the competent authorities additional enforcement powers and will necessitate the introduction of non-criminal fines for breaches of EU competition law.