The Authority opened an investigation in September 2016 to establish if there had been an infringement of Chapter I of the Competition Act 1998 (“CA98”). The investigation concerned a suspected anti-competitive agreement between Economy Energy, E (Gas and Electricity) Ltd (“EGEL”) and Dyball Associates (“Dyball”) (“the Parties”).
On 29 May 2018 the Authority issued a statement of objections to the three Parties to the investigation.
The recipients of the statement of objections had the opportunity to respond to the allegations. The Authority considered the representations it received before coming to its final decision.
The Authority has found that Economy Energy, EGEL and Dyball entered into an agreement and/or concerted practice to share markets and/or allocate customers between Economy and EGEL in relation to the supply of gas and electricity to domestic customers in Great Britain. Under the infringement, Economy, EGEL and Dyball agreed that neither Economy and EGEL, nor their sales agents, would actively target customers already supplied with gas and/or electricity by the other, but each other’s existing customers would be allowed to switch between the two businesses if they pro-actively sought to do so. The infringement was supported by the Parties sharing commercially sensitive and strategic information, in the form of details of their current customers. The agreement and/or concerted practice existed from, at the latest, January 2016 until, at the earliest, the date of the Authority’s first investigatory steps in this investigation in September 2016. This agreement and/or concerted practice had as its object the prevention, restriction or distortion of competition.
Dyball was party to the infringement and intended to contribute, and did contribute, to the common objectives pursued by Economy and EGEL. Dyball did this by facilitating the sharing of markets and allocation of customers between Economy Energy and EGEL, through its own conduct, in designing, implementing and maintaining software systems that allowed the acquisition of certain customers to be blocked and customer lists to be shared; and by, itself, sharing customer lists and instructions to block particular customers from switching between Economy and EGEL. Dyball was aware of the actual conduct planned and/or put into effect by Economy and EGEL in pursuit of the objective of sharing markets and/or allocating customers. Therefore, Dyball participated as a facilitator in the infringement.
Based on the evidence available to the Authority, this conduct does not benefit from a relevant exemption under the CA98.
Section 36 of the CA98 provides that the Authority may impose a financial penalty on an undertaking which has intentionally or negligently committed an infringement of the Chapter I prohibition. The Authority has concurrent jurisdiction with the CMA to apply and enforce the Chapter I prohibition. This jurisdiction is not restricted to entities that hold a license but extends to entities that participate in activities that are connected with or ancillary to licensable activities. The Authority has found that the Parties committed the Infringement intentionally or negligently and has decided to impose financial penalties of £650,000 on EGEL, £200,000 on Economy Energy Trading Limited and £20,000 on Dyball. The level of the penalty reflects the seriousness of this infringement, the need to ensure Economy Energy, EGEL and Dyball, and other undertakings, are deterred from engaging in this kind of collusive conduct, and the need for a penalty to be proportionate. In setting Economy Energy’s fine, the Authority has reflected the fact that Economy Energy is now in administration.
On 27 March 2018 a procedural complaint was made by Economy Energy regarding the investigation. A decision on that complaint was made in May 2018.