OFT publishes guidance involving third parties in investigations

28 July 2006

Louise Banér

April 2006

The Office of Fair Trading (“OFT”) has published its final guidelines on involving third parties in Competition Act investigations including further guidance on the submission of complaints. This follows earlier consultation by the OFT on draft guidelines.

The OFT recognises that third parties can significantly assist it in conducting investigations under the Competition Act 1998. However, prior to these guidelines there was very little guidance on procedures for dealing with complainants and other third parties in the UK in contrast to the much more developed provisions under EU law. This point was highlighted by the Competition Appeals Tribunal (“CAT”) in the case Pernod Ricard SA and Campbell Distillers Ltd v OFT and the CAT found that the OFT had breached the principle of administrative fairness by not allowing a third party to make comments before the OFT closed its file.

The guidelines set out the circumstances where the OFT will provide complainants and other third parties with the opportunity to comment on its findings before the conclusion of an investigation. The guidelines also set out how the OFT will conduct the process to ensure it is carried out in a formal and structured manner.

The guidelines cover the different situations where the OFT will formally consult complainants:

  • in cases where the OFT has provisionally decided not to take complaints forward to a statement of objections

  • in cases where the OFT has issued a statement of objections

  • in cases where the OFT has provisionally rejected a complainants application for interim measures or where the OFT has provisionally decided to adopt an interim measures decision.

Guidance is also provided on how to complain to the OFT about anti-competitive behaviour.

Complainants will generally only be consulted where they are granted Formal Complainant status. This will be granted to third parties who submit a written, reasoned complaint to the OFT containing the information specified in the guidelines and who are materially affected by the conduct which is the subject of the complaint. However, the OFT does retain the discretion to consult third parties who are not able to provide all the information required. The OFT has also clarified that consumer associations or trade associations can be granted Formal Complainant status in certain circumstances. The Formal Complainant is not automatically granted anonymity and has to specifically explain to the OFT why disclosure of its identity would be harmful to its interests.

A Formal Complainant will generally not be given access to documents other than the relevant provisional closure letter, statement of objections, provisional dismissal letters or interim measures notices which set out the OFT’s reasoning for its decision. The OFT may also have to limit consultations in cartel cases where the consultation could give rise to a risk of prejudice to a related criminal investigation or proceedings.

It should be noted that these guidelines do not apply to merger cases which are governed by the Enterprise Act and have their own procedural framework and guidance.

Source: OFT Press Release of 12 April 2006, available at: http://www.oft.gov.uk/News/Press+releases/2006/75-06.htm