Dáil Éireann debate -
Thursday, 8 Feb 1996

Vol. 461 No. 3

Written Answers. - Private Contract Tendering.

John Ellis

Question:

97 Mr. Ellis asked the Minister for Enterprise and Employment the action, if any, he proposes to take regarding public companies tendering for private contracts in view of the fact that they are not operated as commercial organisations; and if he will make a statement on the matter. [2811/96]

Minister for Enterprise and Employment (Mr. R. Bruton)

From a competition perspective, the Competition Act, 1991 sets out the conditions under which free and fair competition takes place, by prohibiting anti-competitive practices and the abuse of a dominant position. The 1991 Act applies to undertakings be they in the public or private sectors. An undertaking is defined in the Act as "a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service". At present the Act is enforced primarily by way of private civil actions in the courts between disputing parties.

Section 4 of the Competition Act prohibits and makes void all agreements between undertakings, decisions by associations of undertakings and concerted practices 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. Section 5 prohibits any abuse of a dominant position. Below cost selling is not anti-competitiveper se. However, if the below cost selling was by a firm in a dominant position this might be considered predatory and to be in breach of competition law.

Section 6 provides that any person aggrieved in consequence of anti-competitive activity has a right of action in the courts for relief, by way of injunction or declaration and damages, including exemplary damages. The Minister has a similar right of action but the reliefs available to the Minister are restricted to an injunction or declaration.

While the Act illustrates examples of what may be prohibited, it is ultimately for the courts to decide what constitutes a breach of the law in any case brought before them.

I would also refer the Deputy to the Competition (Amendment) Bill, 1994 which proposes to give the Competition Authority powers to investigate anti-competitive activity, either on its own initiative or as a result of third party complaints, including the power to take court actions where necessary. In line with the Policy Agreement for Government I am committed to strengthening the enforcement of competition by giving the Competition Authority powers of enforcement and by enabling the courts to impose stiff fines on those found to be engaging in unfair competition. I intend to seek to have the Bill, which passed Committee Stage recently, enacted as soon as possible.