27/11 2 March 2011
The OFT today announced the trial of a new adjudicator role to resolve disputes on procedural issues, as part of a continuing drive to speed up Competition Act investigations.
Under the one-year pilot, parties under investigation can ask the Procedural Adjudicator to review certain decisions on procedural issues taken during an investigation - for example deadlines imposed on companies or decisions on confidentiality redactions. Jackie Holland, Director of Competition Policy at the OFT, will take on the role.
The trial follows feedback from businesses and their advisers that there is no efficient way to deal with disputes arising on procedural issues if they cannot be resolved with the Senior Responsible Officer (SRO). Where it is not possible to resolve disputes with the SRO, and the dispute falls within the scope of the trial, parties may now apply for a review of the decision by the adjudicator. The Adjudicator is an OFT staff member, independent from the case team, reporting to the CEO.
The move is the latest in a series of measures to improve the speed, efficiency, transparency and accountability of investigations into potential breaches of competition law.
The OFT has today also published its final guidance setting out the procedures it follows in Competition Act investigations, from the opening of cases through to their final resolution. Following consultation with lawyers and businesses, this includes a number of new measures, including:
- offering informal pre-complaint discussions to help potential complainants decide whether to commit the necessary time and effort to prepare a formal, reasoned complaint, based on whether the OFT would be likely to investigate
- a commitment to reach a decision on whether to formally open a case no later than four months after receiving a substantiated complaint, and
- sending a case initiation letter on opening a formal investigation setting out the details and key contacts of investigators including the Senior Responsible Officer and the case's Decision Maker.
The OFT's guidance also further clarifies its existing approaches to decision-making, access to decision makers and quality assurance.
John Fingleton, OFT Chief Executive, said:
'We have a common interest with parties in minimising delays to investigations.
'Today's measures are further steps in an ongoing process to create more transparent, accountable, efficient investigations, improving our ability to deliver enforcement outcomes for consumers and the economy. We always welcome feedback on how we can improve further.'
The Procedural Adjudicator and final guidance were announced this morning by OFT Chairman Philip Collins: see a transcirpt CA98: Shaping the future of Competition Act cases, or watch videos of the speech and a presentation by Jackie Holland on the event page.
- The OFT is investigating 23 civil or criminal competition cases of which 11 are cases opened in the last year. See a list of current cases in the public domain.
- The OFT has undertaken a range of work focused on speeding up the investigation of cases, engaging with businesses and further increasing its transparency. This includes introducing short form opinions which provide swift guidance to parties on the way in which the OFT is likely to respond to novel or unresolved competition issues arising in collaboration agreements. And in May 2010 the OFT announced measures to improve the transparency of its CA98 investigations, including providing parties with more information at the start of the enforcement action, regularly updating companies on the state of play, and providing better information and summaries of completed work. The draft procedural guidance for Competition Act investigations was published for consultation in August 2010.
- The scope of the Procedural Adjudicator is different to that of the European Commission's Hearing Officer. Some of the wider duties of the Hearing Officer are already addressed in other ways under the OFT's CA98 procedures.
- The OFT will evaluate the Procedural Adjudicator trial at the end of the year to see whether it has achieved its objectives. This will enable the OFT to assess the likely costs and benefits of adopting the role on a permanent basis.
- The OFT will publish the Procedural Adjudicator's decisions either at the time of the decision or at the end of the case, subject to confidentiality redactions as appropriate. Read more about the Procedural Adjudicator trial.
- Jackie Holland, a qualified solicitor, joined the OFT in 2008 as Director of Competition Policy. Her team's recent projects have included research into Drivers of Compliance and Non-Compliance with Competition law, the review of the OFT's director disqualification guidance, the development of the OFT's new Short-form Opinion tool, as well as the development of the Competition Act procedural guidance published today. Previously she was a Senior Associate in the Competition Group of Slaughter and May, where she had extensive experience of advising on EU and UK competition law.
- The OFT is responsible for applying the Chapter I and Chapter II prohibitions of the Competition Act 1998, which prohibit agreements preventing, restricting or distorting competition in the UK as well as certain anti-competitive conduct by undertakings holding a dominant position. The OFT also has powers to apply and enforce Articles 101 and 102 of the Treaty on the Functioning of the European Union, which are similar to the Chapter I and II prohibitions, but which apply to agreements or conduct which may affect trade between Member States of the European Union.