When it became fully operative in April 2014, the CMA gained substantial new powers to compel individuals to attend interviews during investigations of anti-competitive behaviour. These interviews will have important consequences for the companies under investigation and their legal advisors, as well as for the relevant individuals. Companies will need to take these new powers into account when considering their compliance procedures and training, HR policies, and approach to risk mitigation policies. They will also need in particular to be aware of the risk that statements which constitute admissions of an infringement might be made during compelled interviews.
We summarise below some of the key points arising from these powers, including their scope and their impact on the company’s privilege against self-incrimination.
The Enterprise & Regulatory Reform Act 2013 inserted a new Section 26A into the Competition Act 1998. The section grants the Competition and Markets Authority (CMA) the power to interview individuals during competition investigations, that is, into agreements which restrict competition (such as price-fixing cartels), or into abuses of a dominant market position. The OFT, predecessor of the CMA, had not previously had the power to require individuals to attend such interviews in civil investigations (though did have the power in criminal ones). Having first consulted on its guidance late in 2013, the CMA issued final guidance in March 2014, explaining that it would use those powers stringently.
The powers are now therefore fully integrated into the CMA’s investigative tools.
What the guidance sets out
Who can be interviewed?
- The CMA has the statutory power to interview anyone "connected with" a business under investigation. The CMA has taken a very expansive approach to interpreting this term, stating that this includes current or former directors (including shadow directors); anyone exercising any form of management functions; temporary or permanent employees, consultants, volunteers or contract staff; professional advisers (including outside counsel) and any other advisers; and parties exercising any degree of control over the business. No salary, fee, allowance, equity share, capital gain or any other form of payment is necessary to establish a "connection".
How will the CMA require individuals to be interviewed?
- The CMA will issue a formal written notice to an individual stating that it intends to ask questions under its formal powers. The notice will say when and where the interview will happen. Most importantly, this can be immediately upon receipt of the notice, where the CMA considers that an individual has information enabling the CMA to “prevent damage to a business or consumers […].” The CMA can impose penalties on those who do not comply with the notice. Where an individual has a current connection with a relevant company, then the CMA must also provide a copy of its notice to that company – generally at the same time or shortly after notifying the individual.
Can a lawyer attend?
- Any individual can request legal representation at an interview - the question is who else the lawyer is acting for. The CMA’s "starting point" is that it will generally be inappropriate for a lawyer only representing the company to attend the interview. The CMA guidance suggests that lawyers representing both an individual and a company should consider whether a conflict of interest may exist preventing such dual representation.
- The CMA’s explanation is that a lawyer solely representing the company may “prejudice the investigation […] [by] reduc[ing] the incentives on the individual being questioned to be open and honest […].” There is no explanation of how lawyers subject to their professional and ethical responsibilities can create such risks.
- The CMA may allow some time for a lawyer to arrive but in the meantime, may supervise the individual and / or remove that individual’s access to telephones to prevent the contamination of witness evidence.
- The practical result may be the extra expense of two sets of lawyers, one for the company and another for the individual. Companies may wish to check the extent of their Directors’ & Officers’ (D&O) insurance policies accordingly.
What about a company’s privilege against self-incrimination?
- Companies will be concerned to ensure that the CMA does not ask individuals questions the answers to which constitute an admission of infringement by the company. European case law provides for a "privilege against self-incrimination" (Case C-374/47 Orkem, 1989). However, the CMA did not agree with the views of several respondents to its consultation that a company’s privilege against self-incrimination is necessarily engaged simply by virtue of the fact that one of its employees is being interviewed. This is an important and potentially adverse development from the company’s perspective and is likely to be a potentially significant source of legal challenges in future. Companies and lawyers may need to take this issue up actively before and during the interview process.
How can the CMA use the answers given in an interview?
- An individual must answer questions on matters which are "relevant" to the investigation, rather than what the CMA may believe is relevant. Where he or she does so, there is a statutory safeguard, in that the statements may only be used as evidence against that individual in a prosecution for an offence of providing false or misleading information, or in relation to the cartel or any other offence, if the individual gives inconsistent evidence in court, or evidence is raised (or a question asked) on the individual’s behalf in court.
- In general, the CMA will make a transcript of the interview - individuals and companies with a current or (if appropriate) former connection to that individual can then identify any material in that transcript which they consider to be confidential.
The CMA has taken on considerable new powers under s. 26A and has taken a hardline view of them in its associated guidance. These may prove to be not just onerous for individuals and companies under investigation, but highly contentious. It remains to be seen how the CMA will apply these rules in practice and what the reaction of investigated companies may be. In particular, if the CMA bars lawyers that represent the company from the interview, the company may decide that the only way for it to preserve its privilege against self-incrimination is to challenge the CMA’s decision in court. Such litigation may take a considerable amount of time to resolve and hold up the CMA’s effective use of its interview powers.
The ECR team at Simmons & Simmons LLP is part of a firm-wide Investigations group which is highly experienced in representing organisations involved in all forms of intrusive investigations by civil and criminal regulatory bodies. Please do not hesitate to contact any member of the Investigations team should you have any further queries on the issues raised above.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.