Dáil Éireann Debate, Wednesday - 15 June 2016
41. Deputy Shane Cassells asked the Minister for Jobs, Enterprise and Innovation if she examined empowering the Competition and Consumer Protection Commission in order to issue civil fines for anti-competitive practices; and if she will make a statement on the matter. [15803/16]
View answerThis question is hugely relevant to the public, in particular consumers, in regard to anti-competitive practices. Has the Minister examined empowering the Competition and Consumer Protection Commission in regard to issuing civil fines for anti-competitive practices? To outline the definition of anti-competitive practices, as we would see them, there is what is called hard-core cartel activity, for example, price fixing, bid rigging or market sharing, and also what are called non-core infringements, which would be an abuse of dominant position within the marketplace.
The current legal position is that civil fines are not provided for in Irish law for anti-competitive practices. The Attorney General has previously advised my Department that providing for them would pose legal difficulties, having regard to Article 38.1 of the Constitution, even at the level of a class A fine. In that context, any legislation to introduce civil fines that would lower the burden of proof from "beyond reasonable doubt" to "the balance of probability" would pose constitutional difficulties, having regard to the protection afforded in Article 38.1.
I am aware the Law Reform Commission published an issues paper, Regulatory Enforcement and Corporate Offences, on 27 January 2016. The issues paper invites views on the supervisory and enforcement powers of the State’s main financial and economic regulators, including the Competition and Consumer Protection Commission. The issue of administrative and civil fines has been raised. I look forward to the outcome of this consultation process. Any recommendations or proposals that may emanate from this exercise in due course will be carefully considered by my Department.
Will the Minister outline, as far as she can, the Attorney General's legal advice? If I am quoting her correctly, she said the Attorney General has said there may be legal difficulties. Are there constitutional difficulties with the proposal? Like all of these proposals, the consumer and the public are being disadvantaged by some of these practices. Given the Competition Authority asked for these powers five years ago, and given we discussed in earlier questions the potential re-emergence of the rip-off culture in the Irish economy, does the Minister not think we should push a little harder and try to get clarity about this?
The main argument is that the level of proof required to achieve a successful prosecution is too high for hard-core competition offences, for example, cartels and price-fixing, which are criminal in nature. In criminal cases, the level of proof is "beyond all reasonable doubt". By contrast, the level of proof in civil proceedings is on balance of probability grounds. Thus, proving a case in criminal cases is at a higher level.
Very high penalties apply to criminal offences under the Competition Act. There is a fine of up to €5 million or 10% of turnover, whichever is the higher, for an undertaking, or a term of imprisonment of up to ten years for a person. That is the reason for having a high level of proof. The issues at stake are the constitutional implications of imposing large civil fines while having a lower level of proof. The imposition of large fines signifies the criminal nature of an offence.
