OFT looks to improve investigations as it heads towards new regulatory era

Competition lawyers have given a cautious welcome to new OFT decision-making procedures.

The regulatory body has produced new guidance, which it claims will improve the robustness, transparency and speed of its investigations.

It also aims to improve engagement with parties involved in investigations and follows an internal consultation announced in March this year.

The changes have been made with an eye to the creation of the the Competition and Markets Authority (CMA), which will take over the remit of the OFT and Competition Commission in April 2014 (29 March 2012).

Previously, the OFT has faced criticism for the opaqueness of its investigations processes, where the same person running an inquiry would then make the decision, known as confirmation bias. Now, final decisions on infringement and penalty will be taken by a separate three-person case decision group.

Another change will be improved dialogue with those under investigation, including the ability for parties to make representations on key elements of proposed penalty calculations and 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 to improve the transparency of ongoing investigations.

The trial role of procedural adjudicator – a link between parties and the OFT – is to be continued.

The exact rules and structure of the CMA has not been announced, but it is expected that this latest OFT guidance will be transferrable to the new regulatory system.

The OFT’s procedures have been scrutinised after it lost some major cases, including the Imperial Tobacco price-fixing investigation. Hogan Lovells represented Morrisons and Safeway in a successful appeal that led to the collapse of the £225m case.

Hogan Lovells competition partner Lesley Ainsworth said: “Overall, these changes should help to increase parties’ confidence in the OFT’s decision-making process. The developments are intended by the OFT to improve robustness, transparency and speed of the investigation.

“The changes are to be welcomed – particularly the new decision-making structure. One caveat is whether the additional procedural safeguards might in fact slow down procedures rather than speed them up as the OFT hopes.

“This depends very much on the efficiency with which the OFT – and indeed parties – operate the new processes.”

Jackie Holland, senior director of policy at the OFT, said: “Our updated Competition Act procedural guidance reflects the lessons we’ve learnt from past cases, external feedback and international best practice. We believe these changes will enhance the robustness and efficiency of our Competition Act cases, as well as resulting in better interaction with parties to investigations and improving the transparency of our work.”