Combatting economic crime is a priority of the programme for this government as it causes a huge loss to the economy. Ireland also needs to have a good compliance culture and record of tackling economic crime to continue to attract international investment. There is a vast amount of new legislation at both national and EU level in relation to measures to combat economic crime. As part of this, there are a number of new and existing enforcement bodies with significant new powers and resources.

All this has led to last year being a record year for enforcement in Ireland, with both the Data Protection Commissioner and the Central Bank imposing record-breaking fines of €1.2 billion and more than €200 million, respectively. This trend is likely to continue.

What we are seeing from the more established regulators such as the Central Bank is a greater focus on measures which vindicate individuals’ rights and protect consumers. We saw this, in particular, with the Central Bank response to the tracker mortgage scandal and the administrative sanctions that were imposed as a result. What has been a feature of these types of investigations by the Central Bank is the remediation programme that the financial services companies ultimately agree to implement, in many cases compensating individuals beyond their contractual entitlements. Interestingly, the Data Protection Commissioner states in the Commission’s latest annual return that their strategy is “to pursue the interests of greatest consequence to data subjects”.

What we are seeing or can expect to see from the new regulators on the pitch or the regulators with significant new powers is a lot of enforcement activity. This is a strategy of making their presence be known and using enforcement as a dissuasive measure. Enforcement with a dissuasive aim is specifically referred to in the Corporate Enforcement Authority’s strategy document. What we can expect to see is a policy of going after low hanging fruit and self-reported breaches, as well as prosecuting the more serious offences. This has been an incredibly successful strategy for the Central Bank with every administrative sanctions fine to date being a result of a settlement by the financial institution in question. The Central Bank has a particular power dynamic, given it both regulates and enforces against the financial institutions and the individuals in those entities. However, other regulators have more of a challenge and, without real incentives, settlements will not be as prevalent.

The main new corporate enforcement bodies on the pitch are Coimisiún na Meán (the media regulator) and the Corporate Enforcement Authority (CEA). Coimisiún na Meán has yet to set a framework for its enforcement activities but notably it will govern the big tech companies in relation to online safety issues. The CEA has been in existence since July 2022 and is a replacement for the ODCE with increased resources and independence. Its job is to police the Companies Acts, but it has a number of Gardaí seconded to it that can investigate much wider offences. While it does not have many new powers as of yet, it is proposed that it will be given additional search and surveillance powers. All this points to it being a serious investigative body. What we have seen from it in the past year is this regulator being very active in disqualification and restriction applications against directors of companies, as well as a number of prosecutions of fraudulent company filings.

We are also seeing a continued trend towards individual accountability as a recognition that corporates do not commit economic crimes of their own volition, rather the people in those organisations perpetrate those crimes. To breed a high compliance culture, those individuals need to understand they will be personally liable for these breaches. As part of this, we are seeing individuals being prosecuted by the likes of the Central Bank and the CEA.

There is also the much-discussed Individual Accountability Framework (IAF) being implemented by the Central Bank which has received a mixed reaction. The Law Society, in particular, has raised concerns about it including the power dynamic between the Central Bank and the entities and individuals it regulates, concerns that it does not comply with company law and that there is a vagueness to what it covers. Whatever the differing views on this, it points towards a continued emphasis on individual accountability in enforcement.

Turning to regulators with new powers, the Competition and Consumer Protection Commission (CCPC) is an existing regulator which is about to get significantly increased powers with an administrative sanctions procedure for enforcement in relation to competition law breaches. This is a quasi-judicial procedure by independent adjudication officers with civil rather than criminal standards of proof being applied. There is also a settlement mechanism. It is expected that these powers will come into force in September or October 2023, but secondary legislation is first required to be in place in relation to adjudication officers. Much like the Central Bank, there is a settlement procedure which the CCPC is keen to use. However, one obstacle for corporates settling competition law enforcement claims is they will be mindful of potential civil liability from customers and individuals if they have breached competition law. In the UK for example, this is a new form of class action and the Representative Actions for the Prosecution of Collective Interests of Consumers Bill 2023, which has just been enacted into law, would allow consumer representative actions in Ireland of this kind.

What we can expect to see from the CCPC is a lot more enforcement activity as, in recent years, there has been roughly one competition law prosecution a year. The other measure the CCPC are focused on is detection of offences, with resources in this area being increased. In this regard, the CCPC is pushing for access to eTender data to analyse it for signs of bid rigging. Giving the CCPC access to this data is part of the implementation programme for the government to combat economic crime and the CCPC argued that this should be included with the legislation establishing the CCPC’s new powers. However, it was decided that separate procurement legislation was required. We can also expect to see the government invest in technology to investigate crimes and a commitment to this has been given by the government in its “Implementation Plan” to combat economic crime.

Prevention and education of the public are also likely to be key priorities for the new enforcers in town. We have seen the CEA respond to the “money for jam” controversy by issuing a press release cautioning the public against accepting directorships without first understanding the duties and responsibilities involved. The CCPC also likely has an objective to educate the public and it may focus on the new statutory offence of bid rigging, as well as labour market competition law offences that are on the rise, such as anti-poaching agreements.

In terms of trends going forward, enforcement activity is not likely to slow down anytime soon and we expect to see significantly increased enforcement from the CCPC in particular. The Director of Public Prosecutions has also committed in its strategy statement to deliver on the government’s “Implementation Plan” for combatting economic crime and there is a commitment to a training programme for investigators of economic crime, meaning we can expect to see more criminal prosecutions of this type of crime too.

We are also likely to see increased cross-border cooperation in fighting economic crime. We have seen significant moves towards this at a European level with EU-wide information-sharing mechanisms between domestic authorities in relation to consumer protection and anti-money laundering being provided for in EU law. There is a recognition among policymakers that economic crime transcends borders and requires a multi-disciplinary multi-jurisdictional approach. We have also seen cross-border policing initiatives work very well in practice in relation to combatting organised crime.

At a domestic level, while there is a lot of intra-agency cooperation already, we can expect to see that continue and this is clearly a policy of the current government as it is included in its “Implementation Plan” to combat economic crime. For example, the new Act establishing the CEA specifically provides for sharing information with other government bodies.

Lastly, there is a trend towards the EU Commission having a more substantial role in enforcing EU law rights. While the GDPR adopted the “one-stop shop” principle with enforcement at a national level, the new Digital Services Act gives the EU Commission a central enforcement role of trans-European rights. This is how EU competition law has always been enforced. It remains to be seen whether there will be an overhaul of GDPR regulation with enforcement being pushed “upwards” to the Commission.