Public consultation to review aspects of Irish Competition & Merger Control Law

Ireland's Department of Enterprise, Trade and Employment – the Irish Government's business ministry – has commenced a public consultation to review certain aspects of competition law in Ireland.

It is not a full-scale review of competition law generally but rather a more limited and focussed review.

Ireland has to implement the EU's ECN+ Directive - Directive (EU) 2019/1 – into Irish law. The forthcoming Competition (Amendment) Bill 2021 would implement the Directive into Irish law.

The Bill is expected to go beyond the Directive.  The Bill includes amendments to increase the enforcement powers of the CCPC. The consultation is confined to inviting views on these additional amendments only – that is to say, issues going beyond the Directive.

The Consultation is asking views on three questions:

1. Whether Irish law should provide for the offence of ‘bid-rigging’?

  • there would be an express provision for an offence of bid-rigging – the Department says that it would make it clearer that such concerted behaviour during the tender process is unlawful as it distorts competition. Bid-rigging would be a specific anti-competitive practice under section 2 of the Competition Act 2002 and also that the CCPC would have sufficient powers to review any competitive tendering process (including public tendering processes) to ascertain if such bid-rigging has taken place


2. Whether the competent body should be able to prosecute “gun jumping” offences on a summary basis?

  • if certain mergers, acquisitions or joint ventures are implemented before notification and clearance then there would be so-called "gun jumping". The Consultation asks whether gun-jumping should be prosecuted on a summary basis (i.e., before a judge alone without a jury). Currently, the offence of gun-jumping under section 18(9) of the 2002 Act may be prosecuted on a summary basis or on indictment by the Director of Public Prosecutions (DPP) only. The CCPC does not have the power to bring a summary prosecution in respect of this offence. If adopted, the provision would allow the CCPC to take summary prosecutions for gun jumping offences. The Consultation states that the purpose of the proposal would be "to reduce the burden on the DPP" and to increase the enforcement of the gun-jumping provision generally

3. Whether there should be specific amendments to Irish merger control law?

  • the consultation asks questions about possible changes in Irish merger control
  • the proposed legislation would give the CCPC the power to accept notifications in respect of mergers and acquisitions that have been completed but which are notified to the CCPC on a voluntary basis
  • the Bill would give the CCPC the power to make interim orders which would prevent any action (e.g. integrating the merging businesses) that may prejudice or impede its review of any voluntary notifications received. These orders would remain in force until the merger is cleared or remedial action is taken. In addition, if the CCPC finds that the already completed merger gives rise to a substantial lessening of competition, the CCPC would have the power to require that the merger must be unwound and the pre-merger situation be restored to safeguard competition in the relevant market
  • if the CCPC finds that an already implemented merger gives rise to a substantial lessening of competition, the CCPC would have the power to require that the transaction be unwound and the pre-merger situation be restored to safeguard competition in the relevant market
  • the bill would give the CCPC the power to require information from third parties in a merger review
  • the Bill would  provide for clarification of the circumstances when the merger review clock restarts following a Request For Information (RFI) and provides specified periods for the CCPC to determine RFI responses to be compliant.

The Department of Enterprise, Trade and Employment invites submissions from interested parties to a public consultation to review certain aspects of Competition Law in Ireland.

The deadline for submissions is 5pm on Friday, 29 January 2021.

Businesses and others should consider carefully making submissions. A&L Goodbody's EU, Competition & Procurement team is well-placed, because of its expertise and experience in these areas – to assist or advise on submissions by clients and associations. For more information on this topic please contact Vincent Power, Partner.

Date published: 15 January 2021