I move amendment No. 16:
In page 5, lines 9 to 36, to delete all words from and including "amended" in line 9 down to the end of the section and substitute the following:
"amended by the insertion of the following subsection after subsection (1):
‘(1A) A notification in accordance with this section shall be accompanied by such fee as the Minister may prescribe by regulations.'.".
Amendments Nos. 17, 21 and 22 are related and it is proposed that they be taken together by agreement. Amendment No. 17 is in substitute for amendment No. 17 on the principal list of amendments circulated on 30 November 1995. It appears on the additional list of amendments dated 18 January and circulated this morning.
I move amendment No. 17:
In page 5, before section 10, to insert the following new section:
10.—(1) The Act of 1978 is hereby amended by the deletion in section 1 (1) of the definition of ‘monopoly'.
(2) The Principal Act is hereby amended—
(a) by the insertion in sections 20 and 21 after ‘this Act', in each place where those words occur, of ‘the Competition (Amendment) Act, 1996, or the Act of 1978', and
(b) in section 21, by the addition of the following subsection after subsection (3):
‘(4) In this section "records" includes, in addition to records in writing—
(a) discs, tapes, sound-tracks or other devices in which information, sounds or signals are embodies so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) films, tapes or other devices in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and
(c) photography,
and a reference to a copy of records includes, in the case of records falling within paragraph (a) only, a transcript of the sounds or signals embodied therein, in the case of records falling with paragraph (b), a still reproduction of the images embodied therein and, in the case of records falling within both of those paragraphs, such a transcript and such a still reproduction.'.".
This amendment deals with two issues. It deals with an anomaly in existing legislation by deleting the definition of monopoly in the Mergers, Take-overs and Monopolies (Control) Act, 1978, which has been superseded by the definition of dominant position in section 5 of the 1991 Act. It restores powers to the Competition Authority in terms of the use of authorised officers in the context of the 1978 and 1991 Acts and in the context of the present Bill. There was an anomaly in that the powers of authorised officers were not included in the Authority's powers under the 1978 Act, although they were included in respect of the Competition Act, 1991. The amendment provides that the powers of authorised officers apply in respect of this Bill which introduces criminal offences. It deals also with the issue of records and provides that records may include discs, tapes, films and photographs as outlined in the text.
Unfortunately we did not get the amendment until this morning. It proposes a significant change to the original amendment to section 10. Its length illustrates how far we have strayed from the original section 10 which contained a provision of a line and a half dealing with the application of the Public Offices Fees Act, 1879 and nothing else. This amendment provides for the insertion of a long section dealing with totally different matters including discs, tapes, sound-tracks, films and other devices on which visual images are embodied to be capable, with or without the aid of some other instrument, of being reproduced in visual form.
This is a new section.
I know, but it is totally different from the one it replaces. It relates to completely different matters. It is not easy to assimilate its provisions. For example, it is impossible to read section 7, as amended, without seeing it printed and the same applies to this section. The Minister made the argument this morning that because he was including the words "the Competition (Amendment) Act, 1996" after the words "this Act" in sections 20 and 21 of the 1991 Act and including the Act of 1978, the powers in the 1991 Act applied for the purposes of the criminal law, but it is open to argument that those powers do not apply. Having thought about what he said this morning and what I said, and considering that this amendment enormously expands the original section and the original amendment, the words "for the purposes and for the purposes of the criminal law" should be inserted before the words "the Competition (Amendment) Act, 1996" to make it abundantly clear that this evidence will be available for the purpose of the criminal law. It would be much better drafting if after the words "this Act" in sections 20 and 21 of the 1991 Act the words "the Act of 1978" were inserted and were followed by the references to the Competition (Amendment) Act, 1996. It would follow chronologically and it would also make it clearer if after the words "the Act of 1978" the words" for the purpose and for the purposes of the criminal law the Competition (Amendment) Act, 1996" were inserted.
Provision should also be included for the purposes of civil enforcement powers in relation to this Bill. I do not believe it would be helpful to confine the powers of authorised officers to criminal enforcement and omit civil enforcement provisions. The existing amendment covers both and ensures that authorised officers will have the necessary powers in respect of all the provisions of the 1996 Bill which deals with civil enforcement by the Authority and criminal enforcement.
I fear it does not. I am advised that where there are civil powers they do not automatically extend to criminal powers unless specified in legislation. I am trying to be helpful by suggesting that paragraph (2) (a) of the amendment, the third amendment to the section which originally dealt with the Public Offices Fees Act, 1879——
This provides for a new section, not an amendment to section 10.
It does not amend the original section.
It provides for the insertion of a new section before section 10.
I thought it proposed a new section 10.
I also came to that conclusion when I first read the amendment.
Does the existing section 10 stand?
Yes.
Aside from that point, given that the existing section 10 stands, I consider that paragraph 2 (a) of amendment No. 17 should be amended along the lines I indicated. The Minister refused to accept a number of my earlier amendments because he said the point was covered by the phrase here, but I do not believe it covers the point. It would be a matter of great regret if there were any doubt about it and it were open to challenge. The Minister and the committee may overcome the problem by inserting the words "including for the purposes of the criminal law the Competition (Amendment) Act, 1996".
This section was drafted to ensure that the necessary powers would be provided for criminal and civil sanctions. In principle I do not have a problem with the Deputy's suggestion. He is reiterating what I believe is being done. I will deal with that point on Report Stage. What the Deputy suggested is superfluous, but it represents the spirit of what I am trying to achieve. If there is a need for it, we will provide for what he suggested on Report Stage.
I believe that resolves the problem.
I move amendment No. 18:
In page 5, before section 10, to insert the following new section:
11.—(1) For the avoidance of doubt, it is hereby declared that
(a) references in Part II of the Principal Act to the parties to an agreement, decision or concerted practice of a kind described in section 4 (1) of that Act include, and shall be deemed always to have included, references to one or more of the parties to such an agreement, decision or concerted practice,
(b) an agreement or decision as aforesaid which a person proposes to conclude or make with one or more other persons may be notified to the Authority under section 7 of the said Act and shall be deemed always to have been capable of being so notified.
(2) Subsection (1) (a) of this section is without prejudice to section 11 (a) of the Interpretation Act, 1937.".
This amendment deals with problems that have arisen under the 1991 Act in the matter of unilateral notifications and validity of category licences and certificates without individual notifications. Matters arising in a recent court case suggested that the wording of the original 1991 Act could be clarified and improved. In practice the wording of the 1991 Act requiring that both parties to an agreement notify the Competition Authority has proved inoperable. For example, a draft or standard contract could not be considered by the Competition Authority as the identity of the putative parties to the agreement could not be known. Also, it could not be possible for all parties who could benefit from a category licence or certificate to notify parties by the very nature of such a category licence or certificate. This amendment seeks to make the operation of the Act more practicable. In effect it provides that one alone can notify and it is not only those notified who can benefit from a category licence or a licence in the case of an individual agreement.
I thought I understood what the amendment meant when I read it, but having heard the Minister's explanation I have grave doubts. I believe he has the same problem. The explanation is far less clear than the amendment. It was claimed that there were similar difficulties in relation to the 1978 Act.
Is the Deputy referring to the mergers Act?
Yes.
I am not aware of any such difficulties. I understand that the review group will be considering the question of notification, particularly in the case of a contested bid and that may be an issue. This is essentially a tidying up amendment.
Why is this without prejudice to section 11 of the Interpretation Act? I am referring to subsection (2) of the proposed section which states:
(2) Subsection (1)(a) of this section is without prejudice to section 11 (a) of the Interpretation Act, 1937.
I will have to come back to the Deputy on that question.
The Oireachtas should be very slow to repeal aspects of the Interpretation Act, 1937, unless there is a compelling reason. We will create awful confusion because people will read an Act without knowing the reason such things are changed.
The point is well made and the Minister has indicated that he will examine it and report back.
I move amendment No. 19:
In page 5, before section 10, to insert the following new section:
10.—Section 5 of the Principal Act is hereby amended by the insertion of the following subsection after subsection (2):
(3) The Authority may certify that in its opinion, a practice notified in accordance with regulations set out by the Minister does not offend against this section.'.".
This amendment seeks to provide that the Authority could issue certificates in respect of dominant positions, in other words that it would certify that a practice, notified to it, did not offend against section 5, namely, abuse of dominant position. This would be a hugely onerous imposition on the Authority as it would have to establish in each case whether the applicant was in a dominant position. That would be an extremely difficult task. It would also have the effect of doubling the work of the Competition Authority without any tangible gain in the operation of the competition law. I do not intend to proceed with this amendment. It would only be for the convenience of firms in a dominant position and would tangle up the Competition Authority in a huge amount of work that would not benefit the effective implementation of competition law.
Where do third parties come into section 5, to which the Minister referred in his reply?
Section 5 of the Principal Act deals with a dominant position.
Is there a relationship between that section and this section?
Deputy O'Rourke sought to provide that the Authority could certify that certain practices carried out by a particular firm would not constitute an abuse of dominant position. I do not propose to accept that amendment because of the huge work load it would impose on the Competition Authority and the lack of any tangible benefit in having an effective competition law. I see no advantage in taking on board this amendment, as proposed.
I move amendment No. 20:
In page 5, before section 11, to insert the following new section:
11.—Nothing in this Act shall prejudice any legal proceedings instituted before the date of its passing.".
Does this amendment mean that none of the provisions of this Bill will apply to any proceedings which had commenced before the date of its passing?
This amendment is tied in with anti-avoidance measures. It is aimed at ensuring that if proceedings are under way prior to this Bill being passed, the outcome of those proceedings cannot be affected by the passing of the Bill. An action could be under way where a notification was not made by the two parties. The provision for avoidance of doubt will mean that in future one party is sufficient, but this will not affect the proceedings.
Where is the point of this provision?
The reason for this amendment is to ensure that proceedings already under way will not be affected.
Would it not be better if they were affected in light of the example the Minister gave? If a person challenged, for example, the fact that only one party had notified an agreement would that not invalidate that notification?
This amendment will mean that one party will be sufficient for the future but this will not affect proceedings now under way.
I do not see the point of it.
Amendment No. 21 has already been discussed with amendment No. 17.
I move amendment No. 21:
In page 5, before section 11, to insert the following new section:
12.—The following provisions of the Act of 1978 are hereby repealed, namely — sections 2 (2), 6 (2) and 8 (3).".
This amendment has not been discussed. It may have been grouped with amendment No. 17 but it was not discussed.
Once it has been agreed that the amendments be grouped, the discussion takes place on the amendments so grouped. According to Standing Orders individual amendments are then formally moved. Is amendment No. 21 agreed, having been already discussed?
Will the Minister specify the three subsections of sections 2, 6 and 8 of the 1978 Act that are being repealed?
Section 2 (2) put thresholds on classes of monopoly which fell to come under scrutiny under the 1978 Act, which is now redundant, because it has been replaced by the concept of a dominant position. Section 6 (2) deals with section 15 of the Restrictive Practices Act, 1972, and is spent by virtue of the Competition Act. Section 8 (3) deals with investigations and inspections by a person authorised by an examiner which is spent as a result of the Competition Act, 1991. They are tidying up exercises.
