Draft Enforcement Guidelines

Ofcom's Draft Enforcement Guidelines

Issued September 14, 2006

This is BT Group plc's (“BT”) response to Ofcom's consultation on its “draft guidelines for the handling of competition complaints, and complaints and disputes concerning regulatory rules”.  It is based on BT's experience in dealing with investigations under competition law and regulation, both with Ofcom and with the OFT.

Executive Summary

BT understands Ofcom's need to update the existing guidelines, dating from July 2004, in the light of the developing jurisprudence and Ofcom practice.

However Ofcom is not the only competition authority developing competition law guidelines and there needs to be a closer connection, as far as the sections dealing with competition law are concerned, between Ofcom's and the OFT's enforcement guidelines.

For example, it is not necessary to repeat the OFT's guidelines in relation to interim measures.  To do so, at best, requires companies and advisers to come to grips with overlapping guidance, and at worst introduces inconsistencies in what should be a single, coherent competition regime.  Investigation outcomes should not depend on whether the case is brought before the OFT or Ofcom.

Ofcom's starting position therefore should be the OFT guidelines with any deviations clearly explained.

Guidelines formulated in relation to Ofcom's regulatory functions do not necessarily sit well when applied in relation to Ofcom's competition law functions.  Regulatory investigations, where there is no need for a close alignment between OFT and Ofcom guidelines, should be treated separately.

It is not clear whether Ofcom is seeking to define a new category of decision, the “no grounds for action decision”, and whether this would constitute a non-infringement decision.  Further clarity in this area would be welcomed.

The procedure for closing cases on the basis of administrative priority should be more transparent.  This could be done by ensuring that the criteria listed by Ofcom as pertinent to their decision as to whether or not to open a case, are also applied to case prioritisation. 

More emphasis should be placed on the need to reach the jurisdictional threshold of “reasonable grounds to suspect” before an investigation can be launched.

Replacing the existing timing targets for conducting investigations, that apply from the start of the investigation, by milestones dates set to six months into the investigation, would be a backward step.  The proposed milestone dates are overly complicated.

There should be no parity in treatment between requests for disclosure of information made by complainants and those made by the target of the investigation.  Rights of defence apply to the target, not to the complainant and this leads to an inherent asymmetry of rights.

There should be no presumption that disclosure of information is normally necessary for Ofcom to discharge its functions.  This is not the test applied by the relevant legislation, which requires a balancing approach between the competing interests in maintaining confidentiality and in disclosure.

Download full response as PDF document.

BT would welcome any comments on the contents of this document. Comments should be addressed to Beatrice Roxburgh  by e-mail at beatrice.roxburgh@bt.com.