Competition lawyers welcome OFT bid to improve investigations
The Office of Fair Trading (OFT) has announced an overhaul of its decision-making processes for Competition Act investigations, with the changes receiving a positive response from competition lawyers. The shake-up, part of an effort to boost the speed and robustness of cases, follows an internal consultation launched in March.
October 17, 2012 at 10:45 AM
3 minute read
The Office of Fair Trading (OFT) has announced an overhaul of its decision-making processes for Competition Act investigations, with the changes receiving a positive response from competition lawyers.
The shake-up, part of an effort to boost the speed and robustness of cases, follows an internal consultation launched in March.
The new measures include collective decision-making, with final decisions on infringement and penalties now set to be taken by a three-person group. To date decisions have been made by the same individual who has managed the inquiry.
Other changes involve allowing parties in an investigation to make representations on key elements of proposed penalty calculations before final decisions are made, as well as more interactive oral hearings, such as 'state of play' meetings.
The OFT will also publish case-opening notices and case-specific administrative timetables on its website in a bid to improve transparency.
The organisation has also extended the trial of its procedural adjudicator role, which it has piloted since March 2011, until its enforcement powers transfer to the incoming Competition and Markets Authority, which will replace the OFT and the Competition Commission in April 2014.
Clifford Chance competition partner Alastair Mordaunt (pictured) said: "The guidelines are to be welcomed by business – they're clear and they go quite some way to making OFT decision-making procedures more robust.
"To its credit, the OFT has listened to stakeholders during the consultation process and made a number of further enhancements to their procedures. But don't be under the illusion that investigations will get quicker (one of the Government's objectives for the new Competition and Markets Authority) – it's hard to see how this will be possible given the injection of additional robustness.
SJ Berwin EU and competition partner, Philipp Girardet, previously deputy director at the OFT's cartels arm, said: "I think the interesting thing to watch out for is whether the members of the new case decision group are willing to get their hands dirty and really critically look at the fundamentals of a case – that is to say, the source material of the case, the law and the evidence, as there has been a bit of a lack of this in the past at senior levels within the OFT.
"If they do this, the new procedures will be a very positive thing not only for parties involved but also for competition law enforcement in the UK more generally."
Norton Rose competition partner Michael Grenfell added: "These changes are a major step forward – especially as it is the first time the OFT will have a group of decision-makers on a case, separate from the case investigators, thus addressing concerns that have been expressed about procedural fairness and possible confirmation bias in the existing system.
"The Government previously made it clear that it expects the CMA to have these types of checks and balances in the new regime and the OFT must be credited for anticipating this with these new procedures."
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