Before I reported progress I had drawn attention to the fact that section 4 (1) deals with anti-competitive agreements, decisions and concerted practices. The prohibition deals with activities in the State or in any part of the State. That is at variance with section 5 where the equivalent prohibition dealing with abuse of a dominant position refers to "in a substantial part of the State". All these variations could, quite clearly at some stage, result in litigation. Uniformity in both sections would be appropriate and the description in section 4 would be the better of the two. The limitation in section 5, making the requirement to be "in a substantial part of the State" is not the best description because the word "substantial" is not a good word to use having regard to the fact that a good deal of argument could take place as to what exactly it meant, what part of the State it referred to, and whether territory or population might be involved in its use.
Amendment No. 10 is quite distinct in its intent and purport from any of the other amendments. It would insert after the word "effect" in line 16 "or a decision of an association or an undertaking which has as its object or effect". In this amendment I am trying to cover a possible legal loophole in section 4 as it stands.
To be caught by section 4 (1), even with the amendments proposed by Deputy Barry or the Minister, would require two or more undertakings to come together to make an agreement, to devise a concerted practice or to make a decision between themselves. In other words, we are talking about a multiplicity of organisations coming together to reach a decision. The plurality is used throughout —"all agreements, decisions or concerted practices between undertakings or associations". However one important position could arise which would escape the net of section 4 (1) and that is a position where a single large organisation make a decision to introduce an anti-competitive measure. An example would be the representative organisation of the vintners, motor dealers, or the oil companies, the members of which agree to comply with any directives issued by the board which could be appointed in such a way that it is not representative of each of its constituent members. The board of that single organisation then meets and issues or adopts a resolution which would bring into force an anti-competitive measure which would otherwise be in breach of section 4 (1). This would not be covered by section 4 (1) as that would not amount to an agreement made between undertakings or associations but rather to a decision of one organisation. Consequently, there must be a serious risk that they could escape the net which is intended to catch that kind of activity.
My amendment does not seek to delete anything but rather to introduce a new element to close off that escape route for a single umbrella organisation which may decide to bring such a practice into play which could become widespread even though technically it would not arise directly from an agreement, decision or concerted practice made between undertakings or associations. The word "between" is very important and clearly implies that two or more undertakings or associations will be involved in making an agreement. The example I have put forward would not involve the making of an agreement but rather a governing body adopting such a policy which would not be caught by section 4 (1). It seems that it presents a possible escape route.