I move that this Bill be now read a second time.
Members, I think it is accepted by most representatives in this House that the transformation of this country’s economy from an inward looking, State dominated economic model to one of export orientated growth, dynamic competition and increased choice for our citizens has resulted in unimaginable societal and economic progress for this State and its people in the past thirty years or so.
Much of this progress arose from policy decisions made and voted on by the Oireachtas driven by the desire of previous members of this House to end the relentless emigration of our people and to pursue the idea that this nation’s living standards could be as good if not better than our European neighbours.
We have, as a country, surpassed even those goals, not by accident, but by decisive and deliberate efforts of government to ensure that Ireland continues to have a competitive economy, not for its own purpose but to fund a fair and inclusive society, with high levels of educational attainment, good quality employment and social supports for our citizens.
The advance of our integration in the EU’s internal market has not only created record level employment, it has also benefitted our citizens in the choice of goods and services they can access here for competitive prices.
We are all aware however, that there are sections of our economy that are less competitive than others and indeed in some instances have conspired to keep it that way.
We are, all of us, far too aware of sectors that still have high costs associated with the services they provide resulting in high profits but underwhelming services. We know practices that drive out competition, drive up costs for ordinary citizens and undermine the dynamic nature of our economy.
This is why I am particularly determined to introduce this Bill to the House today for members consideration. I hope that this legislation will go a long way in deliberately disrupting firms and companies who do not play fair, who try to drive out competition and who seek to rig the system to increase profits in an unfair manner.
Purpose of the Bill
The purpose of the Bill that I am bringing before you today is to introduce measures that will strengthen the powers of our National Competition Authorities and give them greater tools to tackle anti-competitive practices.
For too long, the State has been seen as soft on rogue businesses and those seeking to game the system. This view, whether justified or not, does significant damage to the credibility of Ireland as a place to do business and undermines the confidence our people have in government and government agencies.
We see continued frustration with the high cost of insurance in this country which is driving many small enterprises and community groups out of business. The impact on local employment and creativity when this occurs can be profound.
I share that deep frustration.
Despite some of the most significant reforms made in the law pertaining to competition, consumer rights and personal injuries in recent years, premiums have not dropped sufficiently and uniformly despite assurances made by the insurance sector. I think it is fair to say that the outcome of the recent investigation by the CCPC into the motor insurance market leaves questions unanswered. It also shows the need for legislation which I am introducing today.
Let me be clear, this Government wants to see severe consequences for companies who engage in price fixing, bid rigging or any other forms of anti-competitive practices which do damage to our economy and our people. We believe that unlawful actions by companies should have strict and severe consequences. There needs to be proper penalties for unlawful actions. And that is the reason and purpose of the introduction of this Bill today. We are seeking to give teeth to our agencies charged with protecting consumers and our economy. We need to properly resources those agencies and give them the powers required through legislation to carry out their tasks both efficiently and effectively.
As members of the House will know, Ireland has two national administrative Competition Authorities:
the Competition and Consumer Protection Commission, (the CCPC), and;
the Commission for Communications Regulation, (ComReg.
This Bill will transpose the ECN+ Directive, which means that for the first time in Ireland, competition law can be enforced through administrative actions taken by competition authorities.
ECN stands for the European Competition Network, which is composed of the Commission along with National Competition Authorities from each member state. It became apparent to the Network that there are a number of areas in which existing EU law is insufficient to meet the objective of a fair internal market for everyone. These include, but are not limited to, giving National Competition Authorities the means to impose effective fines and implement leniency programmes. The ECN+ Directive intends to fill some of the gaps that exist in the current system.
ECN+ Directive
The new powers given by the ECN+ Directive will only apply where there is an inter-state trade element. In deciding to implement this Directive through primary legislation, this Government felt that it was important that the same sanctions should also apply to breaches of national competition law.
This will avoid having two parallel systems with differing sanctions.
The stated aims of the ECN+ Directive are as follows:
- to ensure that all National Competition Authorities have effective investigation and decision-making tools,
- to ensure that all National Competition Authorities have the ability to impose effective deterrent fines,
- ensuring that all NCAs have a well-designed leniency programme in place which facilitates applying for leniency in multiple jurisdictions; and
- ensuring that NCAs have sufficient resources and can enforce EU competition rules independently
Delay Transposing Directive
The date given by the Commission for transposition of this Directive was the 4th of February 2021. Unfortunately, we, along with several other member states, did not manage to transpose this Directive by this deadline. I don’t need to tell you how incredibly difficult the last two years have been, and the significant legislative burden the pandemic has placed on both Houses of the Oireachtas. This is a difficulty we share with our European counterparts.
Particular to the Irish context, however, was our unique constitutional position. Transposing the ECN+ Directive raised significant constitutional considerations, given the particular role of the Courts in the Irish Constitution. The constitutional concerns included the introduction of the concept of administrative sanctions, periodic penalty payments, interim measures and leniency provisions. Ireland has robust defences against the administration of justice by any body save for the judiciary. In order to transpose this Directive in a way compatible with Irish law, it was necessary to consult with a number of legal experts to ensure that the legislation would be workable.
Zalewski case
Additionally, in April 2021 the Supreme Court issued a majority judgement in the case of Zalewski v the Workplace Relations Commission & others, which had a significant impact on the drafting of the Bill which was quite advanced at that stage. A previous decision of the High Court had concluded that the Workplace Relations Commission was not administering justice within the meaning of Article 34 of the Constitution. The judgement in Zalewski overturned this decision.
The Supreme Court agreed that the adjudication service of the Workplace Relations Commission – the WRC – does constitute the administration of justice, which has been traditionally regarded as the exclusive preserve of the courts.
However, the majority decision also concluded that the adjudication service of the WRC is not repugnant to the Constitution because it found that the administration of justice is limited. Limited administration of justice is permissible under Article 37 of the Constitution.
While the Zalewski judgement was supremely helpful in clarifying how the administration of justice can be achieved within the parameters of the Constitution, in the case of this Bill, it required a fundamental re-design of how the provisions relating to administrative sanctions would work at quite a late stage in initial drafting.
The main changes introduced on foot of the Zalewski judgement have been around ensuring that adjudication officers are independent in their functions, that the process of adjudication and the process of investigation are separate and distinct, and that the procedures surrounding the imposition of administrative financial sanctions are clear and transparent. The Bill also provides for Court confirmation of the decisions of adjudication officers, and the ability to appeal those decisions.
The delay in bringing this Bill to this House is regretted, but it was imperative that this Directive was transposed in a way that is constitutionally solid and that provides our Competition Authorities with the tools they need to effectively challenge anti-competitive conduct.
Hamilton Review
It has long been a commitment of this government to crack down on white collar crime. As part of making good on this commitment a cross-agency review group was put together, chaired by James Hamilton. This review group was composed of government departments and the key State agencies charged with the responsibility for the prevention, investigation and prosecution of economic crime and corruption.
One of the recommendations made by the Hamilton Review Group was to amend Irish competition law to create a specific offence of bid-rigging. This proposal also has significance in relation to public procurement fraud.
Express provision for bid-rigging is included in this Bill and meets this recommendation.
Pre-Legislative Scrutiny Report
The Joint Oireachtas Committee on Enterprise, Trade and Employment held hearings on the General Scheme of this proposed legislation in February of last year, and its report contained 17 recommendations for consideration in the drafting of the Bill which we are considering here.
We have addressed all of these recommendations within the drafting of the Bill, such as ensuring that there is no difference between the roles of the CCPC and of ComReg as competition authorities, as the powers required for transposition of the Directive are given to both as “competent authorities” throughout the Bill. I have already mentioned where we had very careful consideration of the legal issues including how this legislation would interact with the Irish Constitution and the implications of the Zalewski ruling on the measures within the Bill.
In the main, the enforcement powers in the Bill, both in relation to administrative financial sanctions and also other sanctions such as structural or behavioural remedies, are identical in relation to EU and domestic law as they are subject to Court confirmation. But we have separate provisions for periodic penalty payments in order to fulfil the specific requirements of article 16 of the Directive on the one hand, and the Constitutional requirements for domestic law on the other hand, which is the only instance where differentiation between “national administrative competent authorities” and “national judicial competent authorities” is relevant within the Bill. The proposed maximum penalties for infringements of competition law are also the same regardless of whether it is EU or domestic law that has been infringed. Rights to appeal have been dealt with in Part 2H of the Bill.
The inclusion of bid-rigging as a specific offence means that the competition authorities can pursue cartels specifically involved in this activity in the future. The Minister for Justice has established an Action Plan to ensure the cross-Government implementation of the recommendations in the Hamilton report, including in relation to the recommendation to screen e-tenders data, with my Department and the CCPC both actively engaging in that process. My Department worked with the Department of Justice in relation to the proposals on surveillance and interception to ensure alignment with the existing legislation and procedures – and as a result of the Department of Justice’s ongoing review of the interception legislation, it has been decided to include the CCPC within the remit of that project instead rather than through this Bill.
Both my Department and the Department of the Environment, Climate and Communications are committed to ensuring sufficient resources for the CCPC and ComReg to implement this legislation, which includes some additional resources for the CCPC having already been put in place but both Departments will keep their needs under review as the legislation is concluded and implemented.
Main Provisions of the Bill
I turn now to the main provisions of the Bill.
Part 1 of the Bill contains a number of standard provisions concerning the short title, commencement, transitional provisions. In addition, section 2 defines a range of terms used in the Bill.
Part 2 deals with a number of amendments to the Competition Act 2002, which is referred to throughout the Bill as the ‘Principal Act’.
Section 5 amends the Principal Act to insert a definition for bid-rigging, as mentioned earlier in the context of the Hamilton Review Group.
Sections 6 and 7 amend the Principal Act, setting out that in order in order for an act to be an offence it must intentionally or recklessly prevent, restrict or distort competition – they are no longer offences of strict liability.
Section 9 provides for an increase in the maximum fines that can be imposed for concerted practice and cartel offences.
Section 12 is an extensive section that inserts a number of new parts into the Principal Act, parts 2C to 2H, which will insert 51 new sections:
Part 2C relates to how certain investigations are conducted.
Part 2D relates to adjudication officers and matters related to, inter alia, their appointment, independence, and functions. This part also sets out the powers of adjudication officers to impose administrative financial sanctions.
Part 2E sets out the leniency programme for the administrative sanctions’ regime under this Bill. Leniency includes immunity in this instance.
Part 2F relates to mutual cooperation and how competition authorities across the Member States will work together regarding the enforcement of competition law.
Part 2H relates to the procedural provisions around the gathering and use of information and evidence.
Part 3 deals primarily with refining the provisions in the Principal Act surrounding mergers and acquisitions, and strengthening the powers of competition authorities to deal with those that may have an adverse effect on competition.
Section 13 allows undertakings to voluntarily inform the CCPC of a below threshold merger and empowers the CCPC to take interim measures where appropriate.
Section 15 allow for the voiding of any merger or acquisition that requires a decision of the CCPC but is put into effect prior to that decision being made, or where requirements instigated by the CCPC were not complied with. It also sets out penalties to be imposed for this.
Part 4 deals with amendments to the Competition and Consumer Protection Act of 2014
Section 25 relates to the independence of adjudication officers.
Section 28 deals with the Chairperson or member of the CCPC appearing before an Oireachtas Committee.
Section 29 expands the provisions of legal privilege to proceedings involving adjudication officers.
Section 31 sets out greater powers to enter premises and seize, retain and examine records by an authorised officer of a competition authority during an investigation.
Part 5 is composed of one section, Section 33, which amends the Criminal Justice (Surveillance) Act 2009 to allow the CCPC to exercise surveillance functions.
Part 6 relates to amendments to the Communications Regulation Act 2002 and expands the powers of ComReg to enable it to deal more effectively with breaches of competition law.
Section 35 sets out greater powers to enter premises and seize, retain and examine records by an authorised officer of a competition authority during an investigation, in the same way as the powers of the CCPC were expanded in Section 31.
Part 7 is composed of one section which allows for the insertion of a number of references to various statutory instruments and regulations into Schedule 9 of the Consumer Protection Act 2007.
Signalling intention for Government amendments
I would like to take this opportunity to flag that it is my intention to bring a small number of amendment to this Bill at committee or report stage to clarify the intentions of certain aspects of the procedures to be adopted under this Bill and also to ensure that the powers of both the CCPC and ComReg are sufficient for the additional functions which they will have as a result of this Bill.
At Committee Stage, I would also propose to introduce an amendment to Section 12 of the National Standards Authority of Ireland Act 1996. The proposed amendment will be purely technical in nature, and will not make any changes in substance to the NSAI Act 1996. The purpose of the proposed amendment will be to modernise and provide more transparency in the wording of Section 12, which governs the power of the NSAI to charge fees for carrying out its services, activities, and functions, and selling its products. NSAI is a state agency under the aegis of the Department of Enterprise, Trade and Employment. Its functions are set out in Sections 7 and 8 of the 1996 Act, and relate primarily to standardisation, certification, and metrology.
Government will be asked to agree to the various amendments.
Conclusion
This Bill is a weighty piece of legislation which required much consideration and redrafting to get right, particularly in light of the Zalewski judgement. I am confident, however, that the Bill before you today is robust and will allow Ireland to effectively deal with anti-competitive behaviour on both a national and European level in a way that is wholly in accordance with our Constitution.
Anti-competitive practices affect everyone, making it more difficult for honest businesses to prosper and having adverse effects on consumers. By strengthening the powers of our competition authorities, we take an important step to ensure that our economy is open, fair and transparent.
I commend this Bill to the House.