Guidance

Procedural Officer: raising procedural issues in CMA cases

Role, scope, process and how to apply for a review of a procedural decision.

From:
Competition and Markets Authority
Published
31 March 2014
Last updated
13 March 2023 — See all updates

Introduction

If you are a party involved in one of the CMA’s Competition Act, market or merger cases, the CMA’s Procedural Officer provides a way in which you can raise procedural issues that you have not been able to resolve with the CMA Group or staff member responsible for the investigation.

The procedural issues that you can raise with the Procedural Officer vary depending on the type of case.

The Procedural Officer is independent from CMA investigations, case teams and decision makers. The role of the Procedural Officer is intended to ensure that procedural issues can be addressed quickly, efficiently and cost effectively.

The Procedural Officer also chairs oral hearings with parties in Competition Act investigations.

Procedural Officer role, scope and process: Competition Act 1998 investigations

Scope

The Procedural Officer determines significant procedural complaints that arise in Competition Act investigations. Significant procedural complaints considered by the Procedural Office are in particular, those relating to:

  • deadlines for parties to respond to information requests, submit non-confidential versions of documents or submit written representations on the Statement of Objections, Supplementary Statement of Objections or any Draft Penalty Statement

  • requests for confidentiality redactions of information in documents on the CMA’s case file, in the Statement of Objections, in a Draft Penalty Statement or in the final decision

  • requests for disclosure or non-disclosure of certain documents on the CMA’s case file

  • issues relating to oral hearings, including, for example, with regard to issues such as the date of the hearing

The Procedural Officer is not able to review CMA decisions beyond those listed above, for example decisions on the scope of requests for information or decisions relating to the substance of a case.

Applications to the Procedural Officer

The Procedural Officer becomes involved only at the request of a party to an investigation and only after the party has been unable to resolve the issue with the Senior Responsible Officer (SRO) of the investigation. A party wishing to refer an issue to the Procedural Officer needs to make an application as soon as possible after being notified of the SRO’s decision on the issue in question and, in any event, within five working days of that notification.

The application should be no longer than five sides of A4 paper and should include:

  • the name and contact details of the applicant

  • the name and contact details of lawyers acting for the applicant (where appropriate)

  • the CMA case name and reference number

  • the date of the determination of the issue by the SRO responsible for the investigation

  • a short summary of the issue in question, including a summary of the case team’s original decision (where relevant), the decision of the SRO responsible for the investigation, the reason that the applicant is applying for a review of that decision and the outcome that the applicant is seeking

The applicant must also provide copies of relevant correspondence between the applicant and the CMA relating to the issue in question and copies of any relevant information or documents where these are in the applicant’s possession. If the applicant has concerns about providing a copy of such information or documents to the Procedural Officer, they should raise these concerns with the Procedural Officer before submitting the application.

On receipt of an application, the Procedural Officer will provide an opportunity for each of the case team and the party to present their arguments orally on the telephone or at a meeting, before issuing a decision on the issue.

The Procedural Officer’s decisions in Competition Act investigations

The Procedural Officer will deal with the application as quickly as possible. There is an indicative administrative target that decisions will be taken in most cases within 10 working days from receipt of the application. The Procedural Officer will reach a decision within 20 working days from receipt of the application. This timeframe is extendable by no more than 20 working days if there are special reasons to do so.

The Procedural Officer’s decision will be binding on the CMA case team. The Procedural Officer’s decision, or a summary of it, will be published on the CMA’s webpages, generally at the time the decision is made by the Procedural Officer or at the end of the CMA’s investigation. Publication will be subject to redaction of confidential information.

Published Procedural Officer decisions in Competition Act investigations:

More information

You can find more information on the Procedural Officer’s role and procedures in Competition Act investigations in:

Guidance on the CMA’s investigation procedures in Competition Act 1998 case

Competition Act 1998 (Competition and Markets Authority’s Rules) Order 2014

Transparency and disclosure: Statement of the CMA’s policy and approach

Procedural Officer role, scope and process: Merger and market cases

Scope

The Procedural Officer provides a mechanism for handling disputes relating specifically to the confidentiality of information that the CMA proposes to publish in mergers and markets cases. This comprises information relating to a party which the CMA proposes to include:

  • in its published Phase 1 merger decisions, or
  • in its decisions, reports or other documents published in the course of market studies and Phase 2 merger or market investigations.

Process

A party may make representations to the Procedural Officer if it has been unable to resolve the concern with:

  • the CMA staff member with overall responsibility for the conduct of the investigation in Phase 1 merger investigations and market studies, or

  • the Inquiry Group in Phase 2 merger investigations and market investigation references

The procedure followed by the Procedural Officer is flexible and will be tailored to the nature of the issue which has been raised. It will also reflect any specific timing constraints to which the CMA’s investigation is subject.

The Procedural Officer’s decision is binding on the case team in Phase 1 merger investigations and market studies.

The Procedural Officer advises the Inquiry Group acting on Phase 2 merger investigations or market investigation references, having considered the parties’ representations. The Inquiry Group will have all due regard to that advice, but the final decision remains with the Inquiry Group.

More information

You can find more information on the Procedural Officer’s role and procedures in merger and market cases in:

Mergers: Guidance on the CMA’s jurisdiction and procedure

Transparency and disclosure: Statement of the CMA’s policy and approach

How to involve the Procedural Officer

If you wish to apply to the Procedural Officer, you should make an application by email to Procedural.Officer@cma.gov.uk with a hard copy also sent by post to:

Frances Barr
Procedural Officer
Competition and Markets Authority
The Cabot
25 Cabot Square
London
E14 4QZ
United Kingdom

The process to be followed in relation to each application will be indicated when the application is acknowledged.

If there is any reason why the Procedural Officer is unable personally to consider the application, the applicant will be informed of any alternative arrangements put in place when the application is acknowledged.

The Procedural Officer

The CMA has appointed Frances Barr as Procedural Officer from 1 April 2014. Prior to joining the CMA, Frances was the General Counsel at the Office of Fair Trading. Previously she held a variety of legal, policy and project delivery roles at the OFT and worked on secondments at the Competition Commission and at the Department of Trade and Industry. Frances began her legal career in private practice at Slaughter and May, where she worked in London and Brussels.

The Office of Fair Trading, one of the CMA’s predecessors, trialled a Procedural Adjudicator role for procedural matters in Competition Act 1998 investigations. More information on the OFT’s trial and copies of the decisions taken by its Procedural Adjudicator can be found at:

Procedural Adjudicator Trial

Published 31 March 2014
Last updated 13 March 2023 + show all updates

  1. Procedural Officer decision on behalf of Flynn Pharma published

  2. First published.

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