The Buzz in Ireland

2023 could prove to have been a pivotal year for the Irish Competition market with a number of major changes having taken place this year. 

Firstly, there has been a change of personnel at the top of the Irish Authority (the Competition and Consumer Protection Commission) with the authority looking for a replacement for its outgoing chair.  Whether or not it is connected is difficult to say but several of the lawyers mentioned that the CCPC has become noticeably stricter and more intrusive in recent months, possibly following a trend across other jurisdictions of Competition authorities becoming keener to crack down on potential infringements. 

Another possible explanation for the increase in activity by the Irish authorities is that they may be ramping up activity in preparation for a number of legislative changes that will soon be enacted – giving law firms an insight into what to expect once the CCPC has its full power under the new legislation.  These major legislative changes that have either already come into force or are planned for later in the year will have a noticeable impact on merger clearance, foreign direct investment and behavioural investigations.

New legislation allows the CCPC to call in transactions that would not trigger a mandatory filing.  This, coupled with the authority’s new, tougher attitude, has led to a noticeable increase in the number of phase I and II investigations in Ireland, with lawyers saying that they have seen more major assessments in the past 12 months than in the preceding five years combined. 

The CCPC is now requiring much more data to be submitted and is taking a more active approach to possible remedies, leading in some cases to companies being involved in two or three rounds of discussions around remedies – a major change from the attitude previously in which only two mergers in the last four years had required multiple rounds of remedies.  Thus, for the lawyers and their clients, the merger clearance proceedings have suddenly become much more intensive than previously.

This is likely to be a key topic for Ireland as the country relies heavily on investment from the United States and the United Kingdom, with a report from the Central Statistics Office released in 2021 suggesting that investment into Ireland from the US was worth over EUR700 billion.

The legislation has not yet been enacted so is unlikely to come fully into effect before next year, but law firms are already having to deal with a number of queries about it, most notably from US clients (as it focuses on non-EEA investment, it will not have an impact on intra-EU investors).  Lawyers are expecting this to be a major source of work in the near future, possibly exceeding the volume of merger control work.

The last key change in the near future will be a new administrative sanctions regime that will allow the CCPC to enact fines, rather than the current system which requires them to go to court and prove the infringement to a criminal standard.  Lawyers are expecting this to lead to an increase in the number of investigations carried out by the authority – these have been few and far between in recent years – as the CCPC will no longer feel constrained by the requirement to go to court before imposing fines.  

Of course, any increase in investigations and fines for anti-competitive behaviour will inevitably lead to an increase in appeals against fines and to follow-on damages litigation, another area that has been quiet in Ireland in recent times.  Again, this has not yet come into force, but the delay in its introduction has given lawyers and their clients more time to align themselves with it and prepare for its enactment.

Although for some of these topics it is too early to call them ‘trends’ in the market, it does seem to be an exciting time for lawyers specialising in Competition law in Ireland and, even though we have barely hung up the phone after the last of our interviews for the Europe 2024 research, we are already eagerly anticipating the research in Ireland next year to see what impact these changes will have on the market.