Commercial Law – Update 2

COMPETION AND CONSUMER PROTECTION BILL 2014

On 31 March 2014, the Minister for Jobs, Enterprise and Innovation published a Bill which proposes significant amendments to Irish competition and consumer laws.

The legislation has the following key components:-

  1. The Competition Authority and the National Consumer Agency are proposed to be merged into a Competition and Consumer Protection Commission (the “CCPC”) so as to deliver improvements in competition law and to protect and vindicate consumers.
  2. The Bill proposes additional powers for the CCPC by extending the provisions of the Criminal Justice Act 2011 and the Communications (Retention of Data) Act 2011 to serious competition law offences. The CCPC would have the power to apply to Court for an order to require any person with relevant information to produce a range of records and/or documentation, answer questions and provide information for the purposes of the investigation of relevant offences. Failure to comply with such an order would be an offence. New criminal investigation functions are being added to the significant powers that already exist to combat serious white collar crime and ultimately combat higher prices and protect consumers.
  3. The legislation, when enacted, will regulate certain practices in the grocery sector aimed at ensuring balance and fairness between all of the key players in the sector i.e. suppliers, retailers and consumers. New legal requirements for record keeping and the inclusion of certain terms in written contracts added to strong enforcement powers will ensure that these relationships are fair and sustainable. The Bill gives the Minister the power to make Regulations to specify certain procedures that must be followed in commercial relationships between undertakings in the grocery goods sector. The proposed measures are aimed at preventing certain practices such as unilateral alteration of contracts by retailers, requiring ‘hello money’ for space on supermarket shelves and suppliers being required to bear the cost of promotions by retailers or for wastage or shrinkage. It is proposed that the Regulations will deal with issues such as the form of contract, promotions, terms of payment, resolution of disputes, training of staff and retention of documents. Using Regulations rather than primary legislation will mean that the regime will be flexible.
  4. A client has privilege in legal advice which it receives from a solicitor. The client may decide to keep or waive the privilege in the legal advice. Privilege is a cornerstone of democratic societies and central to the proper administration of the law because it enables a client to have confidential discussions with a solicitor. The Bill will enable the CCPC to remove material including written legal advice stored in either hard or soft copy format from businesses and others being investigated where the client claims privilege. The material must be kept confidential. It may then be reviewed by the High Court to determine whether privilege in fact exists or applies in the particular circumstances.
  5. The Bill proposes to update and modernise the law on media mergers. The CCPC would continue to be involved in media mergers but it is proposed under the Bill that the Minister for Communications, Energy and Natural Resources would ultimately determine if a media merger is allowed by reference to a media plurality test.

The Minister for Jobs, Enterprise and Innovation who currently has a role in the consideration of proposed media mergers would no longer be involved.

Joint ventures would be notifiable if they are created on a lasting basis rather than the present indefinite basis. The proposed new regime would operate on a working days basis rather than a calendar days basis. This has the potential to lengthen the entire merger review process for business and at the same time will ease the burden for the CCPC. The substantive competition rules relating to anti-competitive arrangements and abuse of dominance remain the same. The penalties for breaching competition law also remain the same.