I had pretty much concluded my point which was dealing with Deputy Barry's amendment to postpone the operation of the critical part of the Bill for six months. I was making the point that the firms, companies and undertakings that would be most strongly affected by it would be well able to meet the requirements of the Bill without the necessity of having the benefit of a six months' extension and that for that reason the Labour Party would not be supporting Deputy Barry's amendment.
Competition Bill, 1991: Committee Stage (Resumed).
Debate resumed on amendment No. 2:
In page 3, between lines 24 and 25, to insert the following subsection:
"(2) Part II of the Act shall not be brought into operation until the Competition Authority has been established and operating for a period of at least six months during which time the Authority will issue guidelines on this Act and on its own procedures and also has issued the areas to which block exemptions for categories of agreements, decisions and concerted practices will apply.".
—(Deputy Barry.)
A Leas-Cheann Comhairle, you can see why I made the point this morning that the amendment in the Minister's name and my amendment were different and needed separate discussion. Deputy Taylor repeated the point he made before the break. in relation to the firms that Deputy Taylor and the Minister are concerned with, of course it is correct, and if they are engaged in "abuse of a dominant position" then the quicker that situation is controlled the better. What I am talking about is the whole lot of other businesses and industries that will be affected by this legislation. The Minister says that it is only in certain instances, where they are abusing a dominant position for example, that they will be affected. That is correct, but the point is that nobody knows until the guidelines, or at least the parameters within which the authority intend to work, have been set down whether they are in that position or not.
I know the Minister says there is a 12 month gap in another part of the order. That is correct, but that is to deal with the firms Deputy Taylor is talking about, and they will know they must lodge such agreements, that they are subject to control by this law, and that they must go to the expense of preparing an accountant's submission to the authority when they are established. I am talking about the other 98 per cent of firms that will be affected by this legislation. To give an absolutely ridiculous example, say there were two barbers in the one town who decided they would up the price of a haircut by £1, is that an abuse of a dominant position in that town? It is so ridiculous it is hardly worth talking about but under the law much less serious things could be involved. Because of the speed with which this legislation was brought in, because of the lack of consultation beforehand, I think firms are entitled to a six months respite so they can see the guidelines being drawn up by the authority when they are established.
The Minister says that the Fair Trade Commission's report was published on 16 April and the Bill was published on 20 April and that this was adequate time. That is just ridiculous. The Minister and the Department had the report for 18 months. If they had at least published it when they got it in early 1990 there might be some basis for the Minister's argument. In Britain when they were introducing legislation dealing with Articles 85 and 86 of the Treaty of Rome, which is what this Competition Bill is based on, there was a Green Paper and a White Paper, and I understand there were over 200 submissions between the two before any legislation was introduced. No consultations took place here, even though there have been representations, as the Minister says, post-publication of the Second Reading debate.
However, there are smaller traders who may feel they might be involved and who will feel they must, because of their uncertainty in this regard, go to enormous expense. The main criticism I have of this Bill is the uncertainty it has created within the business community. People just do not know where they stand. They have already had to take on board a lot of expense because of other legislation and now they may have to take on board the expense of preparing a submission to the authority to get an exemption or, as the Minister says, a licence. A point I will come to later on another amendment is that the Minister uses the word "licence" and "exemption" interchangeably. Even though the explanatory memorandum uses "exemption" the Bill uses "licence".
What I am saying is that it is perfectly fair that these people in that grey area who do not know whether or not they will have to go to the expense of engaging accountants and lawyers to make a submission through the authority to see whether an agreement they have with a supplier will be part of an exemption or not should have some time. It is just to allow the authority to draw up guidelines which will indicate to people that they need not apply for such an exemption. That is the purpose of my amendment, to have a six month gap between the setting up of the authority and the coming into effect of Part II of the Bill.
I do not accept the claim being made by Deputy Barry that businesses are being hit for the very first time without any background knowledge or understanding that changes of this kind were coming. Since the early seventies the trading sector have been dealing with this matter. In the Programme for Government, 1989, it was indicated that the legislation in this area would be introduced. People are familiar with what is happening in Europe generally in recent times in this area.
Section 2 does not mean that all provisions need come in simultaneously. I understand the Minister indicated this morning that he would be looking at how best the provisions could be introduced to take account of the fears individual businesses have. Clearly, for a great number of businesses the transitional period will suffice. Deputy Barry will, I think, accept that not to bring into force the provisions enshrined in this legislation to deal with known abuses would be unjustified by the points Deputy Barry is putting forward. The transitional period and the opportunity for notification generally, a period of up to 12 months for businesses would suffice.
Amendment put and declared lost.
Section 2, as amended, agreed to.
SECTION 3.
Amendment No. 3 to this section is in the name of Deputy Taylor. Amendments Nos. 44, 81 and 82 are consequential. I suggest for discussion purposes that we take those four amendments together. Is that agreed? Agreed.
I move amendment No. 3:
In page 3, subsection (1), between lines 35 and 36, to insert the following definition:
" `The Director' means the Director of consumer Affairs;".
The purpose of this, and the connected amendments, is to give a role in the operation of this Bill to the Director of Consumer Affairs. I regard the position of the consumer as being paramount in this legislation. It should be about protecting the consumer who goes into his or her local supermarket, or whatever. The office with primary responsibility in our system for protecting the consumer is the Director of Consumer Affairs and Fair Trade, to use the full and correct title. Consequently, it is rather strange that the Director of Consumer Affairs and Fair Trade is excluded from the operations of this Bill. He is not even mentioned in the Bill as submitted to the House.
The director is given no role in securing the rights of and protecting the interests of consumers generally. Why should that be? The Minister has gone to great lengths to set up a competition authority to monitor the provisions of the Bill at the macro end, big inter-company contracts, arrangements, deals and so on, but there is nobody to look after the interests of those at the bottom end of the scale, the interests of a person who goes into a shop to buy meat, a chicken, an item of grocery, petrol in a garage or whatever. That should not be allowed by the House.
The purpose of amendment No. 3, and my other amendments, is to give a specific role, as would seem logical and appropriate, to the Director of Consumer Affairs and Fair Trade in addition to the other enforcement rights granted to other persons and agencies. If it is brought to the notice of the director that a consumer's position has been abused and members of the public make a complaint which is upheld by the director, the director, the competition authority and the individual should be entitled to bring the matter before the court so that the rights of the consumer are protected. After all, that is supposed to be the ultimate aim of this Bill. Consequently, it is entirely logical and appropriate that the interests of the consumer be represented by the Director of Consumer Affairs and Fair Trade.
To leave it to a private individual to enforce the important rights being granted to members of the public under the Bill would be putting an impossible burden on that person. It would be wrong to expect an ordinary member of the public to raise the funds, make the inquiries, secure the evidence and go into court, what is more, the High Court as the Minister has provided for in the Bill. Account should be taken of the enormous legal costs involved and the economic expert witnesses required to prove and prove to a court, for example, that one company had established a dominant position in a particular trade in the State. That would require tremendous resources, effort and hard cash. Let us face it, no individual or even small company would be prepared to do that. It requires a State resource. One such resource for that purpose should be the Director of Consumer Affairs and Fair Trade who is charged specifically with ensuring fair trading and a fair deal for the consumer. That is the purpose of this group of amendments and I ask the House to support them.
This is amendment No. 3 and I believe three others are being taken with it. Is that so?
Amendments Nos. 44, 81 and 82.
As the Deputy has said, this amendment introduces the Director of Consumer Affairs and Fair Trade into the Bill with a view to his enforcement role which is suggested in amendments Nos. 44, 81 and 82. This raises the whole enforcement issue which is central to the Bill.
One of the core features of this Bill is its enforcement mechanism. Previous competition legislation, in so far as we had it and that would be the Restrictive Practices Acts, laid the emphasis on the State as the primary enforcement agency. Provision was also made for the private enforcement of the legislation but that private enforcement was very rarely used. To ascertain where the balance of enforcement should lie in the legislation before us we have to ask one very fundamental question. In the first instance, who stands to gain from the enforcement of this legislation? The answer is a business which has been put at a disadvantage by practices that breach competition rules. Such a business will be the gainer.
The next question we must ask is, if business is the primary beneficiary of this new legislation then should they not also have the primary role in the enforcement of the rules? Why should the taxpayer fund redress for civil wrongs in the commercial sector? For example, in the case of trade mark infringement the remedy is the same as that proposed in section 6, namely, civil action by the party affected. Section 6 (4) gives the Minister the power to take an action. This is a reserved power where the Minister can take an action in the public interest and it can be used in a conspicuous way should the need arise.
That the area of law is new does not mean it will be any different to enforce. The Bill gives people the power to exercise their economic rights. Nobody should have the power by virtue of his size or by virtue of the anti-competitive practices in which he engages to deprive anyone else of the economic right to enter or to compete on an equal basis in any market. It is a basic economic right that anyone adversely affected by the anti-competitive activities of others should have the power to seek redress in the courts.
Furthermore, who is better to judge and testify that a wrong has been done than the person who has been wronged? Amendment No. 44 would give the director the specific role to act "when he is of the opinion that such agreement... adversely affects the interests of the consumer". Ultimately, all anti-competitive agreements affect the consumer adversely. They usually affect business first. Giving an enforcement role to the director would rapidly become a crutch on which business, in particular big business, would hang their cases.
Amendments Nos. 81 and 82 would enable the director to have authorised officers and to provide them with powers, but I suggest that if there is no role for the director it is unnecessary to give him officials of that kind. It has not been proven that it is necessary to have another State enforcement agency or that we should greatly expand our existing one in a matter like this. The best analogy that can be brought in is not the one Deputy Taylor used; it is rather the analogy with the protection of trade marks.
It would be unthinkable that some State agency would intervene to protect the private property of some person or company in a trade mark. It would be taken for granted that they should protect themselves through civil action. That is the way this should be approached. If they are wronged by concerted practice, an anti-competitive practice or the abuse of a dominant position, they should assert that right. I can envisage circumstances in which it might be more appropriate for a Minister to do it. As I have said, section 6 (4) enables that to be done but I see that in only a minority of cases.
I must say I find the Minister's reaction to Deputy Taylor's case, with which I do not fully agree, depressing. It augurs very badly for amendments to be made to this Bill at a later stage if the authority are to be allowed to initiate an action in regard to an unfair practice or an abuse of a dominant position.
It is almost naive to suggest that a small supplier who feels an unfair action has been taken against him by a major store would take that store to court to have this wrong redressed. It is an extraordinary suggestion. The criticisms made outside this House about this Bill being a lawyers' paradise are correct. Lawyers will be able to charge huge fees in this regard. To suggest that a supplier would take a major company to court because they were abusing their dominant position is ludicrous. Small suppliers would not have the resources at their disposal to do this. As Deputy Taylor rightly said, the cost of going to the High Court would be enormous. Even if a supplier won his case he would be without this customer in the future. Suppliers have to make a choice between being damaged or put out of business, a Hobson's choice so far as a small supplier to a big firm is concerned. It is not realistic to suggest that a small supplier could initiate a court case to protect his position. The authority should be given the right under the Bill to initiate a case if a complaint is made to them about a major purchaser.
As the Minister correctly said, all legislation of this nature should ultimately protect the interests of the consumer. It is ridiculous to suggest that an individual supplier who would not have the resources behind him could take a big firm to court. He would want to have major resources behind him if he wanted to take a case to the High Court. The Bill deals with businesses and it is much more appropriate that the competition authority should initiate such proceedings. I have a later amendment to this effect.
The Minister's response to Deputy Taylor's amendment does not give me any great cause for hope in this area. This legislation is very important to the business community who already have to bear huge costs as a result of Government legislation which imposed costs on them. I find it deeply depressing that they are now being asked to put themselves out of business by taking one of their major customers to court if he abuses a dominant position. It is depressing to think that the State will not protect the small man in that regard.
Deputy Barry puts the major emphasis on the business community and how they will be affected under the terms of the Bill. This is very important and I do not decry it. However, I put my major emphasis on the rights and position of individual consumers who are as involved in this issue as much as big or small businesses. These people are not being provided for here at all. This is a very grave hiatus. Quite frankly the Minister's approach to what he would regard as a breach of this Bill has left us in a very confused position. In the course of the Minister's reply on Second Stage it came across, from reading between the lines, that he had thought long and hard about whether the remedy should be civil or criminal or a cross between the two. Sometimes if one dwells too long on such matters one ends up with a kind of mish-mash which is very unsatisfactory. This is what has happened here.
Section 4 (1) lists the practices which are prohibited under the Bill. When an Act of the Oireachtas prohibits something, we are not talking about a civil wrong, a breach of contract, etc. A breach of contract may be unlawful but it is not prohibited. When something is prohibited in a Bill it means that there is a criminal element involved in it and not a civil element. The word "prohibit" is more referable to a criminal element than to a civil element. Otherwise what we are saying is that this Bill prohibits a certain thing being done but if that prohibition imposed by law is breached it will be left willy-nilly to some private individual to take the case to court to do something about it. In other words, we in this House do not mind if something we prohibit is breached and the only distance we are prepared to go in this regard is to say that a person may, if he has courage enough to do it, go to court and initiate proceedings to remedy the problem and if he does not do this it is all right by us and we, as the State, do not mind. That is unacceptable to me and could not possibly be right.
The Minister's analogy to a trade mark position is not a good one as a trade mark is a different position altogether — it constitutes a clear, specific, definite and vested right of property in a particular thing. When a person's right of property is abused, it is acceptable, normal and perfectly reasonable that that person should take civil proceedings in whatever way is appropriate. We are not talking here about any clear definitive vested property rights such as those granted by a patent or trade mark. It is a different kind of situation altogether.
If the State takes the view that the kind of anti-competitive practices, abuse of positions, etc., we speak of in this Bill are wrong and unacceptable and should be prohibited, it is no good saying we will leave that to a private individual to enforce. The State must have a role in it. We are dealing here with more than just big business. The Bill addresses three categories, big business, small business and individual consumers and seeks to improve their position. So far as big business is concerned, I hold no brief for them as they have no problem and can go to the High Court or Supreme Court because they have the resources to do this. So far as small business is concerned, they would not be geared to undertake this kind of complex High Court action, the only remedy given to them under the Bill. Even a medium-sized company would have to think very carefully and strongly about this.
Virtually every line in the Bill is open to abstruse legal argument. To set about establishing whether a particular firm are exercising a dominant position in a trade comes easily off the tongue in a few words but it would take a fairly skilled team of economists to satisfy a court beyond reasonable doubt that a firm trading in a particular way, first, were in a dominant position and, secondly, were abusing it. One would need to carry out a very detailed examination of their trading levels over a period and their proportion of the market. One would also need expert advice from economists on what percentage of a trade in a country in a particular item of goods would constitute a dominant position. Even if they were in a dominant position you would have to satisfy the court that that dominant position was being abused. The cost to economists who would have to undertake tremendous research to furnish such a report and give the evidence would be enormous. It would be met by countermanding evidence from other economists from the person or company against whom the claim was being brought, the case could run for a fortnight in the High Court, and possibly longer by the time the legal boys had made their arguments and so on, and could end up on appeal to the Supreme Court. What small or medium sized business will undertake that? It is not realistic.
To put the position even stronger, what individual consumer, even in his wildest dreams, would undertake a High Court action because he was charged too much, because he was the victim of an abused position or because a certain concerted practice operated pricewise against him? That is not on, that is not for real. Either we are setting out to help the consumer and small businesses or we are not. If we want to help the consumer, the man in the street who buys petrol, meat, food and so on, then let us do it realistically. Let us examine here on Committee Stage how he can be helped.
The Minister said the main benefit would go to the small business. That may be, but getting a benefit at the end of a High Court action and possibly going on appeal is very far down the road. When a person or a small company is at a disadvantage, the State has a role to help him. There is no merit in bringing in a Bill which purports to give a benefit to the consumer when, at the same time that consumer is not given the means to enforce his right. You might as well not give it to him unless you give him also the means to do something about it.
If we had a legal aid scheme — or something of that nature — which measured up to the needs of the situation, that would be a help. If the Minister introduced his Bill and said he would upgrade the legal aid service available for people who cannot afford it, that would have been of assistance but we see nothing on those lines. It is not a matter of providing a crutch for business; if we are going to do something new, it is very important that we do it properly.
There is already an agency under the aegis of the Department whose role is the protection of the interests of consumers — the Director of Consumer Affairs and Fair Trade. This is not an office I wish to involve in this issue, this is on the very subject we are talking about — consumerism and fair trading. I would have thought it almost axiomatic when that office exists — which was set up for the purpose of looking after and protecting the interests of the consumer and of fair trading — that they would have been involved in what is taking place here. All I seek to do is give the director a role. I do not say that an obligation should be put on the Director of Consumer Affairs and Fair Trade to bring a prosecution in every case referred to him. The Minister made the point that that would be a crutch. However, I do not say that but where the director and his officials collate the information and evidence they need to bring a prosecution it should at least be open to the director to do that. That is a very reasonable request.
It is equally reasonable that appropriate inquiring and investigating officials should be made available to enable the Director of Consumer Affairs and Fair Trade to fulfil his function. If that is not done the office of the director will be automatically downgraded because what should come within his field of operations would be specifically excluded under the provisions of this Bill. The title of Director of Consumer Affairs and Fair Trade will be a misnomer. He will no longer be in control of the brief given to him because he will not have a role protecting the consumer or overseeing fair trading so far as any of the matters coming within the ambit of this Bill are concerned. I am at a loss to understand the Minister's response — as is Deputy Barry. The Director of Consumer Affairs and Fair Trade has his officials but he would need more to enable him to deal with the new positions being set up under this Bill.
If we are realistic in purporting to advance the interests of consumers and consumerism in Ireland, then we should agree to this amendment. The Minister should give the director the necessary staff to oversee the interests of at least the consumer. We will deal with small and medium sized companies in different ways in later amendments. As I said, the large businesses are well able to look after themselves.
Enforcement is one of the main issues in this Bill. The Minister seems to be equating the interests of small business and the interests of the consumer; they need not be the same at all times. The Minister asks who is impacted on adversely first, and he says it is small business. For the reasons Deputy Barry has explained, it may well be that small business will be impacted on adversely first, but they may not have the capacity to do anything about it.
If I am supplying one of the multiples with vegetables from north Dublin and my margins are being squeezed beyond commercial viability, there is probably not a great deal I can do about it. If I do manage somehow to do something about it — as Deputy Barry said — and I am successful, then I no longer have a market for my vegetables. One of the reasons we have such extensive imports of potatoes and other vegetables is the clout of the multiples. How is the interest of the consumer protected? The consumer may be sick that he is paying 9p per pint for liquid milk which in his view ought to constitute a grievance.
Section 6 refers to any person who is aggrieved in consequence of any of a combination of practices which are prohibited. I understood from that that any person who is aggrieved has a right of action. That point was taken up in the CII submission where they came out against the words "any person who is aggrieved" and argued for the words "any injured party". I thought the point of the Minister standing by "aggrieved" was that it envisaged a situation where a consumer, or any group of consumers, may be aggrieved persons but they may not be "injured parties" in the sense of being a party to this affair whose business is adversely affected and who have been injured in the legal sense of the term as a result of whatever the anti-competitive practice or collusion taking place.
The Minister was seeking to protect not only the right to litigate of an injured party but also the right of any person who feels he has a grievance. I do not agree with the CII argument on this. It is important that the wording, "any aggrieved person" remain in the Bill. One could envisage a position whereby, for example, consumers could combine to exercise their right to litigate to vindicate a particular right they have, but the question is whether they have the financial capacity to do so under this Bill. It appears clear from the cheering one hears about in the Bar library that the individual consumer, or indeed any combination of consumers, is not likely to have that financial capacity. I tried in a different fashion in amendment No. 42 to provide for the same idea. I sought to give the authority——
The Chair has noticed that recently there is a tendency on Committee Stage to assume that particular amendments represent the only opportunity of dealing with other matters. I know the amendments we are discussing here affect sections other than section 3, but we should deal with the subject matter of the amendment particularly as it relates to what is before us rather than ranging over other sections. All these sections will be put and people can discuss them when we reach them. The Chair would like Deputies to confine themselves more specifically to the amendments before us.
This is the first and only time I propose to address this amendment and I promise to be brief. This matter is very important. What the Minister is setting out to do is to create a competitive environment as a result of which the consumer will gain. The Minister's argument is that the consumer benefits from the least impediments in the way of a competitive economy. The questions at issue in this amendment are: how precisely does the consumer benefit, how are his rights protected and how may he enforce a perceived grievance. It is important that the argument is made that, for the reasons we have set out, it is completely unrealistic to expect that a consumer or a combination of consumers may be able to avail of the right to litigate.
I want to refer briefly to my amendment No. 42 in which I propose to give the Authority the right to take action where the Authority are satisfied that any person has reasonable grounds for action in consequence of any agreement, decision, concerted practice or abuse under sections 4 or 5 but lacks the financial capacity to initiate such action. Deputy Taylor has taken the approach of the existing Office of the Director of Consumer Affairs. The director may take upon himself, on behalf of aggrieved consumers, to initiate such an action, and that is important. Otherwise it is not transparent how the consumer will have a better deal in the post-Competition Bill environment. It is not right for the Minister to suggest that it is somehow unthinkable that the taxpayer should carry the can for a civil wrong. Since we have all agreed on the necessity and desirability of optimum competition in the economy why, where a consumer has not the financial capacity to do so, should the taxpayer not intervene to ensure that that right is vindicated and consequently that competition operates more effectively?
I agree with Deputy Taylor in that I cannot see that the analogy with the trade mark is a fair one. It seems the Minister has set out in this Bill to create the optimum competitiveness as between existing companies but it is not clear whether we are legislating for a generally more competitive environment that will facilitate, for example, the entrance of new competitors into the marketplace. However, I will deal with that matter later. I support Deputy Taylor's amendment.
I do not have a great deal to add to what I have said already. I will very briefly deal with the points that have been made. Deputy Barry suggested that the State would have no role in this matter and would not take action in any case, but that is not so. It is true that the emphasis is on private action. That is the way the Bill is set out and for good reason. There is of course provision, as I have pointed out already, for the Minister to take action.
I was talking about the Authority.
The Minister is more directly representative of the State than anyone else. It is not appropriate for the Authority to be involved. The Authority act at times in a quasi-judicial fashion in regard to these matters and it is not appropriate that they be the enforcing authority also. If there has to be non-private enforcement it should be carried out by the Minister, and that is what the Bill provides. I have to repeat that if the State puts itself up front in enforcement there would be little chance of anyone except the State doing the enforcing. That would be a great pity and would run counter to the way the system operates elsewhere.
We have heard descriptions of small individual traders being pitted against the might of certain large retailers or other people, but that will not always be the case in practice. There is nothing to prevent an association of firms taking action on behalf of a firm, a group of firms or consumers generally. As we all know, there are such organisations, including those who make representations about these matters, who are perfectly in a position to do that without great risk to their individual members.
The manner in which an action might be taken has been described as being almost universally an action between a supplier and one of his customers, but that is only one type of action that is likely to be common. There are four actions in all: the others being actions between suppliers as competitors of each other, between the customers of suppliers and the final consumers and between the competing customers of suppliers, all of whom are likely to want to battle against one another in respect of certain practices they do not approve of. None of those people is in a particularly weak position.
Most of the examples that are drawn in this issue as in others seem to relate to the grocery trade which consumers the greatest amount of interest. I would point out to the House that the Director of Consumer Affairs regularly, year after year, complains about his lack of staff and his inability to police a large number of areas in respect of which he is given responsibility under the different Acts. He will of course retain his powers under the groceries order for as long as that is there, and it may well be there for some time. I cannot foretell that, because it depends on the way matters develop and, in particular, on the report of the Fair Trade Commission. While that is there, the director retains his powers in respect of that particular legislation. I am sure he will be happy not to be burdened with additional powers, since he makes it abundantly clear year after year that he does not have the resources to carry out the functions that have already been given him under statute.
There is nothing abnormal or unusual in what is suggested in the Bill. Because it is somewhat new in this country people are perhaps frightened into believing that it will be extremely difficult. Deputy Taylor quoted some extracts as if they were new concepts in law and in commercial practice. For example, in section 4 he referred to "prohibition" and "void". He put great stress on the word "prohibited". However, those two words are taken from Article 85. They have been the law of the Community for the past 34 years and all larger Irish firms have had to live with them. Deputy Taylor also laid great emphasis on the phrase "dominant position", but that is included in Article 86 and has been there for 34 years. Again, that is not new. With respect, I do not think that large bevies of economists are needed to prove what that phrase means; it is well known and long established. Simply because it has not been used in Irish law before——
That was not the Minister's own experience in a famous case. It can be quite difficult to prove at times.
It might have been less difficult to prove had this law existed at the time of that case, because this law is very clear and the law we had then, and still have is much less clear. In this proposal, which closely follows Community law, judicial notice is taken of many judicial decisions that have been made through the years on the meaning of such phrases and the way they apply to different trades and different businesses. Under this Bill it will be much easier to prove such cases than under present legislation.
I do not understand how it could be easier to prove such matters under this Bill. Certainly the Bill sets up the position, but I cannot see that it in any way eases the burden of proof that would be on any person or company bringing an action under any of the rights purported to be granted under the Bill.
I think the Minister misunderstood what I was saying. I have no difficulty with the word "prohibited". It is the right word to use. What I am saying is that what that word implies is not being followed through by what the Minister is doing in his Bill. When something is prohibited it should not then be left willynilly to a private individual or a company to enforce it. The word "prohibited" implies a criminal element in which the State must have the responsibility, which the Minister specifically excluded in the Bill.
I do not wish to go over the same ground again, but I want to hone in on one category of case I had in mind in introducing this amendment. I know there are various categories involved — actions between retailers, wholesalers, manufacturers and so on, and the Minister listed some of them — but I want to home in on one particular category of case where no injury is done to the manufacturer, the wholesaler or the retailer but where the consumers in general are adversely affected as a result of activities carried on somewhere along the line, for say, in the distribution of petrol. For argument's sake, let us say there is an unwarranted, unlawful and prohibited increase of 5p per gallon in petrol as a result of a breach of the provisions of the Act, and the only people adversely affected are consumers. If the Bill were left in its present form, that would be a classic case in which the Director of Consumer Affairs and Fair Trade, if given the enforcement role I seek for him, could do something on behalf of consumers generally, who are the only people affected. No individual consumer would do anything about that. No individual consumer would enter the arena of the High Court for the sake of a 5p a gallon increase on petrol. Whether any group of consumers would do that, whether they would have the right to do it under the Bill, I shall speak about later. I am not sure whether a group of consumers have the right to bring an action under the Bill as it stands at the moment. Even if they did, there might be great reluctance on their part to undertake it.
That should not be the position. There does not need to be a case in the High Court, with injunctions, declarations and all the rest of it. All that should be required to protect consumers in such a case is a short, sharp, snappy prosecution in the District Court with appropriate powers being granted the District Court to impose an appropriate fine or to make other appropriate orders to prohibit or deal with the matter. That would be the simple, cheap way to deal with it.
Deputy Barry's amendment refers to large fines and other provisions. It is all very well for the Minister to say that provision is already made in Articles 85 and 86, it is, the Minister is quite right, but he should consider what happens in other countries. What fines may be imposed in other countries? There not only is one considering injunctions but there is also provision for fines of millions of pounds. Even Deputy Barry's amendment for a fine of £1 million is small in comparison to what is appropriate for breaches of Articles 85 and 86 in other countries. Why run the consumer into complex High Court actions when anything needs to be done?
I should be interested to hear the Minister say otherwise, but I do not believe for a moment that the Minister and his staff will undertake High Court proceedings to deal with such a case. I should say — and I suspect that the Minister in his heart of hearts would agree — that it would be very rare for the Minister to avail of the back-up reserve position he takes for himself in the Bill to bring about a High Court action to undertake injunction proceedings. I believe it highly unlikely that that would ever happen.
The end result of the scenario I describe is that nothing would happen. Abuse would continue, because the only person adversely affected would be the consumer and the consumer would not undertake a High Court case. As far as the consumer is concerned, that aspect of the Bill would become a laughing stock. Rights would have been granted that are not realistic nor, in practice, capable of being enforced. The right will be there but the remedy will not, and nothing will happen. The abuse will continue and it will reflect no credit on this Legislature.
I shall not go over this matter in detail again because it will be dealt with in later amendments and sections. The Minister spoke of European law and Articles 85 and 86.
What happens there in relation to who can complain is that when a complaint is submitted by a party with a legitimate interest in the matter, the Commission will examine whether the violation of the competition rule has taken place and if the complaint turns out to be well founded, the Commission can then take the necessary measures to put an end to the infringement. It is not the persons who are affected but the Commission who does it. That is what we are asking here — that the Authority do it, that they take the matter up, not the individuals affected.
Amendment put.
The Committee divided: Tá, 68; Níl, 72.
Tá
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barry, Peter.
- Bell, Michael.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Byrne, Eric.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flaherty, Mary.
- Foxe, Tom.
- Garland, Roger.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Nealon, Ted.
- Noonan, Michael
- (Limerick East).
- O'Brien, Fergus.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
Níl
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Sèamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Morley, P. J.
- Nolan, M. J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Tunney, Jim.
- Wallance, Dan.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Tellers: Tá, Deputies Howlin and O'Shea; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
We now proceed to deal with amendment No. 4 in the name of Deputy Barry. I observe that amendment No. 5 is an alternative and that amendments Nos. 6 and 7 are related. I suggest, therefore, that amendments Nos. 5, 6 and 7 be discussed with amendment No. 4 Is that agreed?
I do not think that amendment No. 6 is related.
Amendment No. 5 is an alternative and amendments Nos. 6 and 7 are related.
I do not think that amendment No. 6 is related, I do not see how you make the connection.
This is the best advice my office have given me. However, if the Deputy feels they should be taken separately I will be quite happy to agree to that but they are distinctly related. I would not suggest discussing them together unless I thought they were related.
I am sure you are not trying to cod me, a Cheann Comhairle.
The Chair would not do anything like that.
It is not clear where the connection is.
I do not know how you can make the connection. The amendments tabled by Deputy Rabbitte and by me are related but the same cannot be said in relation to my amendments No. 6 and amendment No. 7 tabled by Deputy Taylor.
We all agree in that regard.
We can have separate decisions in relation to them.
We should also have a separate discussion on them.
If that is not done we would be discussing quite different matters.
Very well, we shall take amendments Nos. 6 and 7 separately.
I move amendment No. 4:
In page 3, subsection (1), after line 37, to insert the following definition:
" `service' includes all manner and type of service including such services as professional services, rights of access to land and buildings and public services save where the latter practices and activities have been given statutory recognition in existing legislation;".
The purpose of this amendment is to include "service" in the definition section. I am amending the definition of "service" in section 10 of the Restrictive Practices(Amendment) Act, 1987, which defines "services" as all professional services but it does not include any service provided by the local authority within the meaning of section 2 of the Local Government Act, 1941. My definition includes the local authority and makes them subject to this Bill.
I want to include all manner and type of service, including professional services, which is the purpose of Deputy Rabbitte's amendment as well, because there could be agreements between professional people and professions which would be "an abuse of the dominant position", to go back to the words used originally by the Minister. The reason I included "rights of access to land and buildings" is that on at least one occasion — and there may have been others — in the development of shopping centres there was a condition attached to one tenant that no other trader of a similar nature would be allowed into the shopping centre. That could be termed as uncompetitive or anti-competition and perhaps the Minister should look at it.
I can understand the desire of developers to have a mix of trades in a shopping centre, it is made more attractive as a result, but the Bill should prohibit a trader from making it a condition that no other trader should be allowed to open and compete with him. I also believe that all Government agencies, including the local authorities, should be subject to the terms of the Bill. For example, should a Government decide to privatise the refuse collection service, the same conditions should apply to both private operators and the local authorities when the contract is put to tender.
One of the public services to which I am referring in the latter part of the amendment, which reads "public services save where the latter practices and activities have been given statutory recognition in existing legislation" is the ESB who have been given a statutory right to generate electricity. They are, however, engaged in other trading activities and they should be covered by this Bill.
It is evident that what I am trying to do is widen the definition put forward by the Minister in the Competition Bill to include professional services, the local authorities and rights of access to land and buildings having regard to what I said in relation to the development of shopping centres. This amendment should be of benefit to the consumer and should ensure fair trading throughout the State.
I support Deputy Barry's amendment. There are services operating in a way which is anti-consumer and anti-competition. I want to draw the attention of the House to the undertaking profession in the city of Dublin where it seems clear there is no competition. One would not bat an eyelid if one was asked for £2,000 to cover the cost of a funeral in Dublin city whereas the cost of a funeral in Swords on the outskirts of the city would be somewhere between £600 and £800. At a time of bereavement — we will all go through this — people want to do their best for their loved ones. When they are at their most vulnerable someone comes along with a suitable funeral face and beside manner and sells them a service at enormous cost. If the Competition Bill was extended to include services it would be possible to bring to heel those who take people when they are at their most vulnerable for a very expensive ride. There would be an outcry if a person hired a taxi and charged the rates being leived at present to carry mourners from Crumlin to Mount Jerome. Yet daily, mourners are presented with very large bills. This also happens where children under the age of 12 die — they cannot be covered by normal insurance, with the result that communities have to raise funds to help the families. All this happens because there is no competition in the undertaking profession.
I regret to say that I find the undertaking profession very arrogant. They do not want to disclose their income or discuss any matters with the public or their representatives. They want to arrogate to themselves the right to decide what they should charge, and they have failed to answer any question put to them. Their arrogance prompts me to say that if one was to be buried at sea one could hardly be surrounded by more sharks than those operating in the undertaking profession in Dublin city. It is time the Minister and this House tackled that profession. I fail to understand why they are not. I argue very strongly that Deputy Barry's amendment should be accepted to allow him to deal with this profession.
The Minister prides himself on the fact that he is prepared to take on vested interests. I would ask him to address this question. When I raised this matter on the Adjournment recently, the Minister of State read a reply which seemed to have been prepared by the funeral undertakers, some of whom were present in the public gallery and sneering at the Members of this House. It is time we took them on and extended the Competition Bill to include services to make sure the public are not dealt with in this way when they are at their most vulnerabe.
The Minister may feel he has to defend himself, his Department or the undertakers, but these people are making substantial profits. If I recall correctly there are 7,000 funerals each year in Dublin. These generate a fairly substantial turn-over for a small number of people for relatively short journeys, unlike the position outside Dublin city. It seems there is no competition and people are suffering as a result. The House should address this matter and one way of doing that would be to insert Deputy Barry's amendment in the Bill, which I strongly support.
All I am seeking to do with my amendment, which is not as wide as Deputy Barry's, is to include professional services in the definition of "service". I may be wrong, but I think some of the public activities referred to in Deputy Barry's amendment are covered by the Bill. It is the view of the man or woman in the street that an organisation or profession can defend the introduction of scaled fees before the law as it currently stands. On the other hand, a person who is aggrieved or adversely affected by the scaled fee system is not permitted to have his grievance decided on. It is the view of the man in the street that it is not only in the last journey to which Deputy Mitchell referred that a person finds his estate fleeced, but while he is still alive he can still be fleeced by the professionals and their charge sometimes bears scant regard to the amount of work done. It is important where there is a suspicion in the public mind of collusion and price fixing in the professions that the matter should come within the scope of the Bill. That effectively is what the amendment seeks to do.
Deputy Barry's amendment is wider than mine but it does include professional services. It also refers to rights of access to land. I would like to hear the Minister's response on that interesting point. However, I am not entirely sure that, in the latter part of his amendment, we are comparing like with like. If what we are trying to achieve is a levelling of the playing pitch, we have to have regard to the social obligations that are imposed on certain State companies. If my memory serves me right the Post and Telegraphs Act, 1984, imposes a statutory obligation to provide the service at the same price across the land. In many cases the only way such a State company can discharge that social obligation is by being permitted cross-subsidisation. Anyone can provide a courier service in the heart of Dublin but I do not see anybody rushing to provide a courier service from Ardnari to Belmullet and some regard will have to be had to that aspect. However, I will come back to that point later.
I wish to support Deputy Barry's amendment. An area of concern to me is the monopoly that the ESB are gaining in relation to the sale of white and brown goods. For some time I have been of the impression that the ESB are using the profit generated from the sale of electricity to subvent the prices at which they can sell these goods. There is great concern in the trade, and people selling washing machines, cookers, fridges, catering equipment and all other white and brown goods are adamant they cannot compete with the prices at which the ESB are selling these goods. They have reason to believe that the ESB are transferring the profit from the sale of electricity to ensure they can take advantage of their competitors in this area. This problem could be tackled by accepting the amendment as put down by Deputy Barry. Many people in the private sector are finding it difficult at present to ensure that their businesses continue to be viable because of the competition they face from the ESB. Thousands of traders throughout the country are finding it difficult to make their businesses commercially viable and as a result employment has been hindered. Very few people engaged in this trade are in a position to say at this time that they will continue to be in business this time next year because of the monopoly the ESB have in this area. I would like to hear the Minister's views on this.
The implications of amendment No. 4 appear to be that public services would be totally excluded from the terms of the Bill, certainly in so far as there is a reference to them in existing legislation. This is not the intention of the Bill and for that reason I could not accept it. One of the principles which underlines the approach to this Bill is that the same rules would apply to all sectors of the economy, whether they be in the public or private sector and whether they relate to the provision of services or to manufacturing. There is no objective reason for excluding services provided by commercial semi-State organisations from the same discipline which the Bill will impose on the private sector. It would create an imbalance as between the public and private sectors and it would be to the detriment of the semi-State sector because they would be deprived of the stimulus of competition which the Bill will impose.
As far as amendment No. 5 is concerned, professional services are included in the definition. The danger of mentioning a whole range of specifics, as envisaged in these two amendments, is that a court would then conclude that matters which were not mentioned were not intended to be included. The intention of the definition of "undertaking" is to be as all embracing of the services as possible. All services are therefore included, including professional, public, private and whatever else. The only ones excluded, as the House will see, are those which are provided otherwise than for gain because presumably that would have to be the case — charities and some other things of that kind where the competitive situation would not arise. I think it is better that all services be included.
Deputy Barry made the point in regard to access of tenants to premises or land. I was not altogether clear as to what he had in mind but he referred here to rights of access to lands and buildings which is, of course, a matter for landlord and tenant law and land law and is not a matter for this Bill. I would have thought that if somebody had been excluded and refused access to a premises that was a matter for him to vindicate under the appropriate landlord and tenant law.
In so far as undertakers are concerned, I am glad to inform Deputy Mitchell that undertakers are covered by the definition of "undertaking". They would of course be excluded if I were to accept these amendments because services which were not specifically referred to here would, by implication, be excluded. As it is, it is clear that undertaking is a service provided for gain and therefore it comes under the definition of an "undertaking". If the situation in regard to the trade of undertaking in Dublin is as described by Deputy Mitchell and there is a cartel between those who engage in the trade of undertaking, it can be challenged under this Bill when it will be enacted and it would be quite appropriate for somebody to do so if that is the position.
Deputy Lowry referred to the sale of white and brown goods by the ESB. This was investigated by the Director of Consumer Affairs, at my request, about 18 months ago, and he, to my surprise, came to the conclusion that there was no restrictive practice on the part of the ESB. However the Bill will give people the right to take action in court if they feel otherwise. The ESB are, of course, included under the provisions of the Bill — all aspects of their services are included. For that reason it is much better to have the widest possible definition, excluding nothing rather than listing things that are included.
Is it correct then to say that everything is included because it has not been listed as being excluded.
Everything that is engaged in or provided for gain is included.
Does that include professional services?
Yes, of course.
I wished to get in a definition of services because I was not sure that professional services or the local authority services were included, but as the Minister has said they are included, I accept his undertaking in that regard.
The point I was trying to raise in regard to access to land was that it came to my notice when a shopping centre was being developed that one tenant insisted on a clause being inserted that no other trader involved in the same trade would be leased a premises in that shopping centre. I am trying to ensure that such a practice, which is a restrictive practice, would not be continued. I can understand that a developer of a shopping centre would want to get a mix of trades and that is perfectly right because it makes the place attractive and will draw more customers but I do not think any one trader should be allowed to have a clause in his lease that precludes somebody in the same trade from coming in and having a shop in the centre as well.
If local authorities provide services otherwise than for gain, obviously they are not included. Charities would be the other example. If local authorities are providing a service for payment, then they are covered. In Dublin city and county the local authorities are not paid for performing certain services.
They are paid for performing other ones.
Which they do not perform.
In the remainder of the country local authorities are paid for performing similar services. One would not, for example, have a right of action against a charity because it is not involved for gain.
I think the Minister is dealing with amendments Nos. 6 and 7.
There is a difficulty in that they are all part of the same thing and it is not easy to deal with one. That is why the Chair originally suggested that all four amendments be taken together. They are related. In the instance that Deputy Barry gives of a restrictive covenant in a lease, I would not like to answer that question here. I cannot get advice on the matter. It probably is covered by this Bill and I would like to check it out.
For Report Stage?
Yes. I cannot be definite about it.
My feeling on that latter point is that it probably is not covered. I agree with the Minister that it would not be appropriate to this Bill since it is purely a landlord and tenant matter. There are provisions dealing with restrictive clauses in leases as to the user of particular shops and so on. The courts have generally taken the view that it is a reasonable thing to do in certain circumstances to make shopping centres viable and to keep them broadly based. It is more appropriate to landlord and tenant law than to a competition Bill.
The point about the undertaking being for gain brings a couple of queries to mind. The building societies would maintain that they are not in business for gain, that they are mutual societies and that profits are ploughed back into the business. They do not declare dividends and do not seek to make profits. If building societies got together to operate a cartel, could they argue for exclusion from the operation of the Bill on the basis that they do not operate for gain? They charge for their services and they charge interest, but that is at a different level. Gain, they would argue, is not the object of the exercise, whereas a company is in the business of making profits and distributing them to shareholders.
Local authorities occupy a dominant position in regard to some of the services they give. Dublin Corporation and Dublin County Council are in the business of issuing letters to solicitors to certify that a particular road is in charge of the local authority and they charge the princely sum of £30 for each such letter, which is paid for by the consumer. Anyone involved in buying a house has to have the search done. Nobody else can give such a letter. The local authorities have 100 per cent of the market in issuing those letters. Could it be argued that too much is being charged and that the dominant position is being abused?
How stands amendment No. 4?
I do not intend to press my amendment, given what the Minister has said.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 3, subsection (1), after line 37, to insert the following definition:
" `service' includes such services as professional service;".
The current position is that professional bodies can arrange to fix fees to exclude price competition on the basis that, in their view, such price fixing arrangements are in the public interest or could be required by a professional code or practice. The Minister says professional services are included in the general definition. Is the Minister saying anybody so minded could take an action to contest whether the status quo is giving the consumer the best deal? Would an action now lie that would not lie prior to the enactment of this legislation?
The kind of people to whom the Deputy refers did engage in price fixing by laying down scales of fees. I do not recall their being challenged because I presume they were not in breach of the law. If this Bill is passed, then because professional services are included, these practices will become illegal. The proof is that the bodies concerned have already started to change their arrangements in this regard. It would, of course, be open to them to apply for an exemption if they could justify it. They would have to apply to the competition authority and the onus would be on them to justify what would otherwise be an anti-competitive practice. I doubt very much if they would be able to do that but they could apply anyway. Whether they would be able to convince the authorities is open to some doubt.
Amendment, by leave, withdrawn.
We now come to amendment No. 6 in the name of Deputy Peter Barry. As this amendment and and amendment No. 7 in the name of Deputy Taylor are related, they can be discussed together. Is that agreed? Agreed.
I move amendment No. 6:
In page 4, subsection (1), line 2, to delete "for gain".
Article 85 of the rules of competition lists various things which shall be prohibited as incompatible with the Common Market, and there is no mention of the words "for gain". I cannot see the purpose of the Minister's definition of an undertaking as being engaged for gain in the production of and the supply and distribution of goods or the provision of services. From the Minister's definition it appears that the object of the undertaking must be to make a profit or a gain whereas under the Treaty of Rome it appears that the very activity itself is also in question. There appears to me to be two different things here. I do not see why the Minister should say that undertakings for gain are the only ones that should be affected when it appears from the European Community that undertakings, whether for gain or not, are subject to Article 85 of the rules of competition.
Apparently the words "for gain" were put in in order to exclude local authorities.
I was afraid so.
I may have partially misled the Deputy earlier and I regret if I did. It appears it was put in to exclude local authorities. It also excludes charities, but I suppose that is not of any great consequence.
It is a bit unfortunate that I withdrew my amendment.
Would it exclude building societies which are not in the business of making a profit?
They very much are.
No, they are mutual societies.
That is theory.
It is theory but what would the law say, does the Minister think, after we pass this? It is, of course, in practice theory, but they are mutualised.
The definition of gain is not related just to the payment of dividends. A building society is an operation that is carried on for the purpose of making money in the broadest sense.
I do not think the Act which controls them would say that, I think it says they cannot. Am I right about that?
I think the Deputy is right, which makes my point.
In fact, I think the ESB are in the same position. They cannot make or lose money under the Act.
The ESB are positively and definitely covered by this Bill and they have accepted that fact now.
While the Minister is thinking about this, let me make another point. I withdrew amendment No. 4 on the understanding that local authorities were included. I find now they are not and I am in a bit of a quandary as to what to do about it because I think local authorities should be subject to this legislation. I can envisage situations where they could be competing to provide services — refuse collection, for example — and they should not be in any better position to provide those services at the cheapest possible cost than a private company. I understand from the Minister now that they are not included. Given that he has admitted he made a mistake in that regard, I hope we will have an opportunity to correct that and that he will include local authorities. They should be subject to the Bill.
If the object of including the words "for gain" was simply to exclude local authorities I would have thought it would have been better draftsmanship to have left that out and to have specifically excluded them. I do not say they should be excluded, but if that was the intention, specifically excluding them would have been a more clearcut way of doing it. As it is I do not know whether it does exclude them. Take the example I have of a local authority that charges £30 for the issue of a letter saying that a road is in charge of the local authority. That surely comes within the definition of undertaking given by the Minister, because by charging £30 they are gaining by providing that service.
I wonder about the desirability of leaving in those words "for gain". Deputy Barry's amendment is to exclude them and it seems very appropriate and logical to do it when one thinks about it. It is very hard to see why those words should be in at all. If the undertaking, the company or whatever are engaged in the supply and distribution of goods or in the provision of a service, what difference does their motive make? What difference does it make whether they are doing it for gain or otherwise? One could visualise a situation where a company, if unscrupulous enough, could set up some kind of mutual company and rake off the profits by having huge directors' fees and saying it is just the salary and that they are not in the business of making profit or gain. I think the amendment is a good one and the Minister should consider accepting it.
Can the Minister say, apropos building societies which I find of more interest than the local authority point, whether there is a distinction in law between “for gain” or “for profit” because it seems that it was in one of the many submissions made to us, or perhaps it was in one of the papers Deputy Barry kindly distributed, that such an argument is made that there is a distinction between gain and profit?
Apart from local authorities, apparently it is necessary to have the words "acting for gain" included in order to ensure that it includes individuals who are acting for gain, such as professionals. Apparently it is necessary to include or cover individual persons professionally providing services for gain but it sought to exclude individual employees because if they are included acting in a trade union or a staff association capacity they would be caught by the Bill which it is not intended they would be. In other words, if people come together for the purposes of trying to fix a wage but they are not doing that for gain, if the words "for gain" did not appear it seems they would be acting as concerted parties and it would not be the intention to cover them because it would cover what would be regarded as legitimate trade union or staff association activities.
In that respect the Company and Commercial Law Committee of the Incorporated Law Society noted that the definition of "undertaking" in the Bill includes the words we are talking about, "engaged for gain". They made the point that there may be bodies or associations such as trade associations, who, although not engaged for gain in the production, supply or distribution of goods or the provision of a service, may be involved in anti-competitive activities contrary to section 4.
That is my amendment No. 7.
In the committee's view such bodies should be subject to the prohibitions in section 4 in the same way as bodies engaged in business for gain. They go on to recommend that that is a cause for deletion of the term we are discussing.
I find the Minister's explanation unconvincing. If the sole objective of including the words "for gain" is to catch an individual, I would have thought he would be caught under the undertaking. If a solicitor or dentist has a plate on the door, that would indicate an undertaking. That leaves the trade union. I thought there would be a simpler way of dealing with the trade union situation than this which, according to what Deputy Rabbitte has just read out, is open to all sorts of interpretations and could cause horrendous problems in future and clearly is not achieving the purpose of Article 85 of the Treaty of Rome.
On the point Deputy Rabbitte raised about a decision made by an association who in themselves were not there for gain but who fixed prices or did something of that kind, they are caught by section 4 because it would be an agreement decision or concerted practice of an association of undertakings who have as their objective or effect the prevention, restriction or distortion of competition in trade, in goods or services in the State. It is covered by that provision and that possibility does not arise.
Despite the fact that they are included in the definition section of the Bill defining the term——
They are. I am referring now to section 4 (1) line 15, page 4 "between undertakings or associations of undertakings".
I would have read that as referring back to the definition section. Whether it is between undertakings or associations of undertakings it refers back to the definition of "undertaking" at the top of that same page which excludes the kind of trade association I adverted to earlier and it gives rise to the problem we are seeking to address.
The trade union position in that regard would be no different from that of a building society. This is tricky. It might be as well for the Minister to look at it again on Report Stage. It would be better if the intention is that certain specific categories are to be excluded from the Bill. Whether one agrees with it or not, it should be spelled out rather than we attempt to construct the wording to fix the definition that would exclude them. In other words, it would be better to leave out the words "for gain", have it comprehensive and then exclude what you want to, that is, if you agree they should be excluded. The position of local authorities, trade unions or building societies could be specifically examined and specifically mentioned as excluded if that is the intention and if the House so agrees.
I think the people it is desired to exclude are excluded by this. It is not the happiest way of doing it and certainly it does not jump out as being self-explanatory. I can think of much better ways of doing it, but it seems to be effective and to cover the point involved.
What is excluded by this and what is not? Are the three categories, trade unions, local authorities and building societies, included or excluded as the Bill stands?
Gabh mo leithsceal. I know we are on Committee Stage and it is a see-saw, but I think it is better for everybody's sake if the Chair acts as the fulcrum and Deputies do not stand up without being formally called. I call on Deputy Barry.
I ask the same question as Deputy Taylor. My objective in amendment No. 4 which I withdrew was designed to include local authorities. I have withdrawn that amendment and now find that the objective of inserting the words "for gain" in line 2, page 4, was to exclude local authorities from the scope of the Bill. I want them included. I would have thought building societies are another undertaking who should be included. It is more difficult with trade unions. One would not want to include them when they are negotiating for a wage increase. An astute lawyer might decide that was a negotiation for gain, although I am not sure he would. They should be excluded, but I would have thought the simplest thing to do so would be to write a specific clause excluding trade unions and let everybody else in, including local authorities and building societies.
Local authorities and their employees in their trade union capacity or staff association capacity are not included. Building societies are included because they are carried on for gain.
I am not so sure where all this leaves us. Is the Minister accepting Deputy Taylor's suggestion that he will look at this and come back and try to redraft it on Report Stage? I had an amendment — No. 4 — which I would have pressed to a vote but the Minister told me local authorities were included. He now says the words "for gain" are designed to include, among other things, local authorities.
I am sorry, I told the Deputy local authorities were included where they provided services for which they are paid. If they provide the services and are not paid, obviously they would not be included, but I think the intention here is that they be excluded anyway. Apparently some advice has been received to the effect that even when they impose service charges they are not trading for gain, they are not acting for gain.
This is very unsatisfactory.
Let me make one point. Deputy Barry, I heard you comment about an amendment which because of some misunderstanding you did not press to a vote. One virtue of that would be that you would be entitled to enter it for Report Stage.
I understand that and I will do so unless the Minister can give me some undertaking in this regard. Local authorities should be included because of the changes which are taking place in regard to local government and the change in the Government's attitude towards the funding of local authorities. Local authorities are now engaged in providing a number of services for which they charge. Therefore, they should be subject——
I will certainly look at the Deputy's proposal between now and Report Stage. However, the matter is not entirely clear to me. I do not know how we can make a distinction between local authorities who charge and those who do not charge. It is proposed here to lump all local authorities together as one, but patently this is not the case in practice.
I will re-enter my amendment on Report Stage.
Does Deputy Barry wish me to put the question on amendment No. 6?
I am in some difficulty here as I think the Minister agrees with Deputy Taylor and me that the definition would be better without the words "for gain".
I said there are other ways it could be done and they might be clearer but I have been advised that this definition will be effective.
I do not agree with the Minister and I should like to press my amendment.
Question: "That the words proposed to be deleted stand" put.
The Committee divided: Tá, 72; Níl, 63.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Hillery, Brian.
- Hilliard, Colm.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lyons, Denis.
- Martin, Micheál.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J.
- (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Woods, Michael.
- Wyse, Pearse.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Barry, Peter.
- Bell, Michael.
- Belton, Louis J.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, Richard.
- Byrne, Eric.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Finucane, Michael.
- Flaherty, Mary.
- Flanagan, Charles.
- Foxe, Tom.
- Garland, Roger.
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- McGrath, Paul.
- Mitchell, Gay.
- Mitchell, Jim.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Timmins, Godfrey.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Flanagan and Boylan.
Question declared carried.
Amendment declared lost.
Amendment No. 7 has already been discussed. Does Deputy Taylor wish me to put the question?
No.
There was agreement that the two amendments be discussed together.
I have not moved or discussed the amendment yet. We have not dealt with amendment No. 7 yet.
Then the Chair has been misled. The Chair took it that amendments Nos. 6 and 7 were being discussed together.
Amendment No. 7 is a different matter altogether. I have not addressed it yet and no discussion has taken place on it.
The Chair is guided by the advice here. The advice I have is that there was agreement to have amendments Nos. 6 and 7 discussed together. If Deputy Taylor indicates that that was not his understanding, then Deputy Taylor will be assisted.
Thanks.
Originally it was agreed to discuss amendments Nos. 4, 5, 6 and 7 together and then it was suggested that amendments Nos. 6 and 7 be taken together and the points were argued.
Amendment No. 7 has not been addressed. It is a separate matter.
They were discussed together.
Amendment No. 7 deals with the same subsection as amendment No. 6, but the point being made in the amendment is completely separate and distinct as will appear when I speak on it.
The Deputy will appreciate that the Chair must uphold any decisions made. I gather there is no doubt but that the House agreed that amendments Nos. 6 and 7 would be discussed together. The Deputy will appreciate that his or her inadvertence would not permit us to change backwards and forwards. Would the Deputy be happy to wait until Report Stage?
I want to outline to the House the purport of the amendment. We were dealing with amendment No. 6 as a separate matter. I could not discuss two completely divergent matters at the same time, we would be switching from one subject to a completely different matter.
The Deputy should have indicated so when the agreement was sought.
The matter was getting into a mish mash because first we were going to discuss amendments Nos. 4, 5, 6 and 7 together; then we discussed amendments Nos. 4 and 5 and then amendment No. 6. It has been confusing. Amendment No. 7 is important and we have to discuss it. Maybe the Minister will clarify the point. The amendment has not been addressed yet. I was waiting until amendment No. 6 had been dealt with to deal with amendment No. 7. If I may move amendment No. 7——
There are 100 amendments. If every one of them is discussed individually it will take an inordinate amount of time. It is the normal practice to group amendments; it is done with every Bill.
Yes, where they are related, but amendment No. 7 relates to a completely different matter from amendment No. 6. It has no connection; it is on a different point altogether.
I repeat, the understanding is that amendments Nos. 6 and 7 were discussed together and the Chair is very seldom astray——
We will have to be more pointed in future——
The House did accept that there was a relationship between amendments Nos. 6 and 7 and that they be taken together for discussion purposes, and separate questions could be put. So Deputy Taylor indicates now that he was unaware of what he had agreed — which is not like him — we will accept that it is not a precedent but an exception.
I appreciate that and I thank the House. I move amendment No. 7:
In page 4, subsection (1), line 3, after "service" to insert", or, if not engaged for gain, that has as one of its interests or objects the review or control of anti-competitive activities".
This amendment is connected with amendment No. 37 in my name. If there was to be a grouping of amendment No. 7, it should have been with amendment No. 37 rather than with amendment No. 6. The amendment also impinges on a very important section, section 6. It deals with the question of who is entitled to enforce the law in the event of a breach of the provisions. All sides of the House agree that that is most important. Section 6 states that any person who is aggrieved in consequence of an agreement and so on shall have a right of relief. Deputy Rabbitte dealt with that matter earlier. He made the point that there is a distinction between the case of a person who is aggrieved and that of a person who is injured but I do not see that there is any such distinction. The right of action provided for under section 6, which is very important, is specifically given only to a person who is aggrieved. It seems that no right of action is given to a person who is not aggrieved and no right of action is given to an undertaking, that is an unincorporated body.
The Minister in an earlier reply conveyed that a group of consumers could get together in an association or an undertaking to enforce their rights under section 6. Perhaps I am missing the point — if so I apologise — but an undertaking, that is an unincorporated group of consumers who get together to bring an action, would not be entitled to do so under section 6 (1) as it stands. First, the undertaking per se would not have been aggrieved although their members would have been aggrieved. I am attempting to remedy that position by expanding the definition of an undertaking and adding “or, if not engaged for gain, that has as one of its interests or objects the review or control of anti-competitive activities”. In other words, if a petrol user's protection society was set up they would, if my amendment No. 37 is adopted, come within the definition of an undertaking that would be entitled to bring proceedings as provided for in section 6. As the Bill stands that would not be possible.
A person could be an individual or a limited company. An unicorporated body would not be a person within the meaning of the Bill and consequently such an undertaking, if the Bill is left unamended, would not be entitled to bring proceedings. This amendment provides, as is the Minister's intention, that a grouping formed to protect the position of consumers or people who are adversely affected by a breach of the Bill should be entitled to avail of the remedies set out in section 6. The amendment would have that effect if taken in conjunction with my amendment No. 37.
I have listened to the Deputy and I think he is trying to change the definition of the wrong thing. He is concerned about aggrieved persons and those who might have a right of action but the definition he is trying to change is that of undertaking. The undertaking is the person or entity against whom the action would be taken, the entity which engages in the restrictive practice, and therefore it would be wrong to change that definition. It would become self-defeating and contradictory if the Deputy tries to cover some group of persons who might act as plaintiffs but he changes the definition of the defendant to enable that to be done. The amendment would not do what the Deputy intends to do and for that reason I do not think he should persist with it. If one is trying to expand the definition of a potential group of plaintiffs in a particular action one does not do that by changing the definition of the defendant.
The Minister is saying that the undertaking is the defendant. According to the Bill an undertaking is also somebody who applies for an exemption under Part II. He may wish to appeal against the decision of the authority to refuse him a licence or an exemption but under the Bill he cannot do so. He may be the defendant but he is also an undertaking or somebody who applies for an exemption or a licence.
In the context of section 6 (1), the subsection to which the Deputy referred, the undertaking is the defendant.
With the greatest respect to the Minister, to say that the undertaking is the plaintiff or the defendant makes no sense. An undertaking might be a plaintiff or a defendant depending on which way the structure works. An undertaking is a group of people, possibly incorporated but more usually unincorporated. It could be a plaintiff, a defendant or anything. An undertaking is defined in the Bill as a defendant. I am not trying to interfere with that definition but to add to it "or, if not engaged for gain, that has as one of its interests or objects the review or control of anti-competitive activities". If that is accepted by the House an undertaking for the purpose of this Bill could be the defendant who is in breach of the Competition Bill or it could be a petrol user's protection society. If my related amendment No. 37 is accepted by the House it would add to section 6 (1), "or any group of persons so aggrieved, or any association, company or undertaking whose members include persons so aggrieved or which was established or has as one of its objects the protection of the interest of persons so aggrieved". The Minister's point does not hold up because those two amendments would provide for what is intended. The Minister did not respond to the kernel of the point I was making. Whereas he indicated to the House earlier that it is his intention that a group of consumers could get together to protect their right he did not respond to my point that as the Bill stands an unincorporated grouping or society would not be entitled to do so. As section 6 (1) stands they would not constitute a person who is aggrieved in consequence of a breach of the provisions of the Bill.
It seems that the Deputy feels that provision should be made for more than one person in section 6 (1). If that is so, the matter will be dealt with later. There is no point in discussing in the context of section 6 (1) what the definition of an undertaking should be from the point of view of trying to add it as a potential plaintiff when it is perfectly clear from the terms of section 6 (1) that the undertaking in that context is the defendant and can be only the defendant. There is no point in wasting time on it. If the Deputy wants to expand the group of potential plaintiffs, and, as I understand it, that is what he wants to do, that is fair enough but——
Yes, that is what I want to do.
——why does he want to expand the group of potential defendants? The definition is not just something academic, something out of the blue, it is for use, according to the Deputy in section 6 (1). The Deputy should consider the use of the word there. It can only be that a defendant "shall have a right of action for relief under this section against any undertaking which is or has at any material time been..." That is the only place in that subsection in which the word "undertaking" is used. Therefore, it can apply only to a defendant, because it provides for the right of action against any undertaking. If the Deputy wants to expand the range of potential plaintiffs under section 6 (1), he should not try to do that by changing the definition of the word "defendant". That is a simple point, and we need not go into all the technicalities. If you wish to expand the range of potential plaintiffs you do not so do by changing the definition of the defendant.
Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.
I wish to advise that in the opinion of the Chair amendments Nos. 9 and 10 are alternatives to amendment No. 8. Amendments Nos. 11 and 13 are related, and amendments Nos. 14 and 15 are alternatives to amendment No. 13. In those circumstances it is in the best interests of order that amendments Nos. 8, 9, 10, 11, 13, 14, and 15 be taken together for discussion purposes.
I hope you are right, A Leas-Cheann Comhairle.
What the Chair reads out here is the essence of what is considered to be in the best interests of the purpose of Committee Stage. I remind the House that, while the amendments are taken together, any Deputy whose amendment is included reserves the right to move that amendment when it is reached and to have a question put.
To avoid confusion later, A Leas-Cheann Comhairle, I advert to the fact that in the absence of my having had the opportunity to listen to Deputy Barry outline the case for amendment No. 13 I have to fall back on my own ability to decipher what he is about. I am not clear on the way in which amendment No. 14 is an alternative. However, if the Chair in its wisdom says that it is an alternative then I shall take it that it is, but I shall speak separately in due course on amendment No. 14.
I hope it will be shown presently that the Deputy's trust in the Chair is not misplaced.
Are you saying that amendment No. 8 relates to——
Amendments Nos. 8, 9, 10, 11, 13, 14 and 15 may be taken together.
They all relate to section 4. They will be discussed together and then taken separately, is that correct?
Separate questions may be put, but for discussion purposes the amendments may be taken together. Discussion on all those amendments will take place following the moving of amendment No. 8 by Deputy Barry.
If that is what the Chair wants to do, I have no objection to it, but I make the point that my own amendment No. 10 makes a particular point that is not reflected in any of the other amendments in the grouping you mentioned. It is a separate, distinct matter. I have no objection to its being discussed in conjunction with the other amendments, but it will not be a related matter. It makes a separate point from those made in any of the other amendments, so the House will be jumping from one subject to another.
No, I am sorry, Deputy Taylor, but your amendment is an alternative to amendment No. 8. The Chair has determined that for discussion purposes the amendments be taken together. I am again reminded that Deputy Barry's amendment refers to the same lines in the Bill.
It may refer to the same lines in the Bill, but it touches on a different point. I do not mind, but——
The Deputy will accept that a decision on amendment No. 8 would affect his amendment.
I submit that because different amendments refer to the same lines in a Bill that does not necessarily mean that they have anything else in common. For example, my own amendment No. 14 seeks to include a new section that attempts to deal specifically with the question of new entrants.
Deputy Rabbitte, I put it to you that if amendment No. 8 was discussed in isolation the question that would be put then would be that the words down to and including the word "section" in line 14 stand. That decision having been made, there would not then be any point in having discussion on anything else that is included in the same lines.
When an amendment is an alternative one has the right to move that separately and have it dispensed with separately.
No, when an amendment is an alternative there may be a separate question on it, but the wise thing to do is to have it discussed with the other amendment.
I seek further clarification. As I said, I do not want to be difficult and I do not mind discussing the amendments together if that is to be done, but, frankly, amendment No. 10 is not an alternative to amendment No. 8. It could not by any stretch of the imagination be an alternative to amendment No. 8. In fact, it could be an amendment to amendment No. 8 in the same way as it purports to be an amendment to section 4 (1).
In respect of the text of the Bill they are alternatives. The Deputy will recognise that they refer to the same lines in the Bill. If a question is put that those lines stand or do not stand, you could not then move your amendment because the House would have already made its decision. The Deputy would not have the opportunity to make his case.
That may be, but——
Immediately following the decision of the House that the lines stand the Deputy could not move to have another discussion on anything related. That is the order in which business has been taken here since the House was established.
I know that, but I have not been here as long as yourself.
Whether or not it is time to have it changed, there is nothing we can do about it here. I do not want to indicate the position of the Chair in relation to the technicalities of it because the interpretation of order resides with the Ceann Comhairle. If that is his decision, so be it. There is a tradition that the agreement of the House is anticipated but it is the prerogative of the Ceann Comhairle to decide how business will be administered.
Of course it is.
Will Deputy Taylor proceed now and if he finds some difficulty he has the right to have a separate question put on his amendment when it is reached. The Deputy is being invited now to avail of the opportunity, after Deputy Barry has moved and contributed to his amendment, to address himself to his own amendment.
The Leas-Cheann Comhairle is quite right when he says that it is the prerogative of the Ceann Comhairle to order the Business of the House. I am sure the Chair would also agree with me that it is the prerogative of each Deputy of this House to make a submission on a matter which he considers appropriate, as, after all, that is what he was elected by the people to do.
Nobody contests that.
I submit that not by any stretch of the imagination can I see that amendment No. 10 is an alternative to amendment No. 8. An example of an alternative might be if a Finance Bill outlined an allowance of £500 and one amendment suggested £1,000 another £2,000 or another £4,000, but when one is dealing with a different matter altogether it cannot and should not be described as an alternative. I will say no more on the subject.
It is a different matter from what is presumed in amendment No. 8. I am not talking about an alternative in black and white. It is an alternative view to what is presented in amendment No. 8 but it is relevant to the text of the Bill. If we deal with one amendment in isolation, the House having decided that those lines will stand cannot have a subsequent debate on it. We should proceed now and I hope that Deputy Taylor will discover that his rights have not been infringed in any way.
I disagree with the Chair's ruling but bow to it.
So, what is new?
In so far as that allows us to proceed with the business, the Chair acknowledges your co-operation.
I move amendment No. 8:
In page 4, subsection (1), to delete lines 14 to 20, and substitute the following:
"(1) Subject to the provisions of this section all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade in goods and services and which have as their object or effect the prevention, restriction or distortion of competition within the State are prohibited and void, and in particular those which".
Section 4 (1) as originally drafted reads:
Subject to the provisions of this section, all agreements, decisions or concerted practices between undertakings or associations of undertakings which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which——
Spot the difference.
The Minister introduced the Bill on the basis that it reflects Articles 85 and 86 of the Treaty of Rome. The Treaty of Rome coincides precisely with what I am saying. If we are introducing into Irish law the rules of competition as laid down in the EC under the Treaty of Rome we should not change the words. The Minister when introducing the Bill, at his press conference and again here today said that the objective of the legislation was to bring what have been termed the best competition laws in the world into effect in the State.
It is obvious that some aggrieved persons will test this legislation at some stage by an appeal to the High Court and the High Court will base their decisions presumably on the body of case law in Europe as to whether this legislation has been breached. If it is the Minister's intention to use the European model in drawing up the legislation, in applying the rules of competition and in adjudicating court cases, the more accurately we stick to the wording in the Treaty of Rome, the less chance there is of appeals going from here to the European Court and the less chance there is of misunderstandings about precisely what is intended.
My amendment No. 8 suggests that the wording of Article 85 is what the Minister should use in section 4 of the Bill. My amendment and Article 85 both use the words "which may affect", whereas the Minister uses the words "which have as their object". Article 85 has stood the test of time and has been the subject of court cases in the European Community since the treaties were signed. We should not change the words without good reason. I am waiting for the Minister to tell me why he has changed them. My amendment would be as near as possible to the wording of Article 85.
Section 4 (1) refers to "without prejudice to the generality of this subsection". I did not include that in my amendment because I do not know what it means, although it appears frequently in legislation. Paragraphs (a), (b), (c), (d) and (e) are taken precisely from the rules of competition of section 1 of Article 85 of the Treaty of Rome except for paragraph (e) which says:
(e) make the conclusion of contracts subject to acceptance by the other parties of additional obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
That is what the Minister says. The Treaty of Rome says:
(e) make the conclusion of contracts subject to acceptance by the other parties or supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
One word was changed there. The word "supplementary" was changed to "additional". That does not seem like a typing error or a slip of the tongue in dictating. It seems to be a deliberate change by the Minister and perhaps one of the lawyers — Deputy Taylor — might tell us the difference betwee "supplementary" and "additional". There must be a reason for the Minister changing this. The Minister has been saying for some time that this is based on European law and, if that is so, we should stick to the wording of European law because it will be understood in Europe. Also, if cases are brought before the High Court here they will be able to adjudicate on the wording in Europe, not on the wording contained in our Act even though we recognise that they are under no obligaton to do so.
Why has the word "supplementary" in subsection (1) (e) been changed to "additional"? I am not sure I understand the difference, but if there is a difference I should like to be assured that there is a point to it and if there is no difference, for the sake of neatness and exactness we should stick to what is in the Treaty of Rome.
Will the Minister also reply to an additional point——
Or a supplementary point.
Deputy Barry did not refer to it but the CII referred to the inclusion of the phrase "or in any part of the State".
I am sorry, I meant to refer to that.
The Minister is probably familiar with the comment from the CII in relation to this; they take objection to this particular clause "in any part of the State" and suggest it might cause problems in the Irish context because of the size of the Irish market. They make the point that it does not mirror the wording in Article 85 and that, because we are such a small economy, it may not be in our interest to subdivide the market further. They comment——
It leaves open the possibility that distortions of competition in a market smaller than the national one may be actionable. By sub-dividing the already small market in Ireland, Irish companies seeking to achieve a certain size on the Irish market in order to ensure economies of scale to operate in the wider EC market may be impeded.
What was the purpose in going out of the way to include "goods, trades, etc., in the State or in any part of the State"? Is the suggestion that if a particular brewery have a dominant position in the southern capital they may be guilty of an abuse of dominant position in the context of the southern capital as distinct from in the national context? I am not clear why it should be there. Since we are all agreed that it is necessary to encourage the development of large scale players in the economy who can compete in the wider European environment, why should we seek to subdivide an already small market within the constraints of the Irish economy?
Amendment No. 8 tabled by Deputy Barry is covered by amendment No. 9. The intention of the amendment is to make the text of the Bill as close as possible to that of the Treaty because it will facilitate interpretation and strengthen the analogy with Articles 85 and 86 of the Treaty as set out and drawn in the Long Title. Obviously, when you adapt a Treaty such as the Rome Treaty to national law you have to do it mutatis mutandis. For example, you must leave out of it the first reason given in Article 85 for its existence, that the following shall be prohibited as incompatible with the Common Market because the question of compatibility with the Common Market of the Twelve member states does not arise in national law. You must also leave out the phrase in the middle of section 1 of Article 85, “which may affect trade between member states”, because national law has no jurisdiction over trade between member states and does not apply here. However, you must substitute “where it does apply” and that is why we used the phrase “within the State”.
However, if there is an undersirable practice in part of the State but not in the whole State it would be most unsatisfactory for a company to say they agree they are abusing their dominance in 25 counties but that they are not abusing it in County Donegal and, therefore, you cannot do anything about it or be restrictive in any competitive agreements into which they have entered, because, as it does not include County Donegal it does not cover the whole State. Obviously, that would be unsatisfactory, so it is proposed to include in this amendment "part of the State" which is not incompatible with Article 85 as applied mutatis mutandis.
In the same spirit — and for the same reason — I am perfectly happy to accept amendment No. 11 in Deputy Barry's name which substitutes "supplementary" for the word "additional". "Supplementary" is in Article 85 (1) (e). The reason "additional" was used is that the draftsman regarded the word "additional" as more commonly used in common law in this sense than the essentially French word "supplementary". However, the meaning is the same and it does not greatly matter. For the sake of making it easier, particularly for the sake of applying the decisions of the European Court here more readily, I am anxious to stick as closely as I can, within reason, to the wording in the Treaty. For that reason I will accept amendment No. 11.
Amendment No. 8 does not refer to "parts of the State", it refers to the entire State and, for that reason, the wording would not be satisfactory. It also uses the words "which may affect trade" which would be inappropriate or inapplicable because they are taken from the phrase that covers trade between member states in Article 85 (1) and, since that cannot arise here, it is inappropriate to use it. For that reason, I ask Deputy Barry to withdraw amendment No. 8 and to agree to amendment No. 9. I will then agree to amendment No. 11.
On the question of the "part of the State" referred to by Deputy Barry and the Minister, I am curious why a distinction is drawn in sections 4 and 5. In section 4 the anti-competition agreement position, the expression used is "or in any part of the State" whereas section 5 states, "in the State or in a substantial part of the State".
Progress reported; Committee to sit again.