Before the Adjournment there was an argument put forward by the Minister and others that there was no difference between a licence and an exemption. If there is no difference, why should we depart from the text of the European Community draft treaty, particularly Articles 85 and 86? I cannot understand why the word "exemption" should not stand in the Bill before us.
Competition Bill, 1991: Report Stage (Resumed).
Debate resumed on amendment No. 5:
In page 5, line 18, to delete "A licence" and substitute "An exemption".
—(Deputy Hogan.)
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Amendment Nos. 7 and 10 are related, and therefore may be discussed together. Is that agreed? Agreed.
I move amendment No. 7.
In page 5, to delete lines 28 to 30 and substitute the following:
"(4) (a) The Authority may issue a negative clearance certificate, that in its opinion, on the basis of the facts in its possession, an agreement, decision or concerted practice notified under section 7 does not offend against section 4 (1).
(b) A decision on the issue of a negative clearance certificate by the Authority must be made within two months of being notified under section 7.".
This is to put a time limit on the decision that will have to be made by the Authority in relation to issuing licences. We are proposing a two months' time limit. There is plenty of precedent to illustrate why this amendment is necessary. When there was not a time limit on local authorities in relation to planning applications there were consistent delays in the issuing of planning permissions. If there is not a time limit on the competition authority within which to issue a licence it could be detrimental to business and perhaps to employment. Without a time limit the competition authority will not be compelled to make speedy decisions. In our experience, State and semi-State bodies take a long time to make decisions, perhaps due to lack of staff and facilities. However, we cannot ignore the fact that delays take place in State and semi-State organisations. We should give adequate staffing and resources to the authority and put a time limit on making decisions. Business would then know that within a definite time they would have a decision on the applications. This would not unnecessarily hold up business.
In amendment No. 7, I am puzzled about the expression "negative clearance certificate". That is not defined in the Bill and maybe it comes from the Treaty of Rome. Perhaps Deputy Hogan could clarify that when replying to this amendment. If that expression is being used it should be defined in the Bill.
Amendment No.10 in my name seeks to bring finality to the period for deliberations of the authority on applications for certificates or licences. We propose that the authority should have a period of three calendar months to examine applications for certificates and licences and to give a decision on them. If the authority fail to do anything on the expiration of the three months period, the application should be deemed to have been refused. I put that in on the basis of a refusal because this relates to a derogation from a general law and the onus therefore should be on the applicant who seeks the derogation. There is nothing unusual about this suggestion. Under the Planning Acts a local authority are given two months to make a decision on a planning application and if a decision is not given, the planning permission is deemed to have been granted rather than to have been refused. I suggest the reverse here because it is a derogation that is being sought.
It was argued on Committee Stage that there was no need for this provision and that the authority could be relied on to deal with these applications expeditiously and to give their decisions within a reasonable period. Perhaps they would, but there is a regrettable tendency in many judicial or quasi-judicial bodies to take far too long to give decisions. Even the courts are guilty of that offence all too frequently. Many of the superior courts hear cases and reserve judgment for months on end. I have known some cases where people have been waiting for judgments for upwards of 18 months or two years. A person in that position is helpless. He has no remedy. The holding up of a decision by a judicial or quasi-judicial authority could be a denial of justice. Whether an application is to be granted or refused, the fact of not knowing the outcome could be a denial of justice. I wish I could have the confidence to say that the authority being set up here will give their decisions within three months but when one looks at the record of other judicial and semi-judicial authorities, one regrettably cannot have the confidence that they will do so.
The question can be asked whether three months is a reasonable and adequate period for the Authority to examine any application which comes before them with all the care and attention necessary. Deputy Hogan's amendment suggests a period of two months. I considered this proposal but thought it would be better to err on the other side so that the Authority would not be rushed or pressured in any way. For that reason I felt that three months was a very fair and adequate period for any Authority to examine the material submitted to them and to reach a decision.
Speed and reasonable expedition on any matter of this nature is of the utmost importance. We are talking here about business and commercial activities. Companies have to know where they stand, whether they are in business, whether this is a viable proposition and whether they can get on with doing their business. It is most unfair to delay people for an unnecessarily long length of time and it should not be necessary. Decisions ought to be given within a three month period. These are basic matters for examination and the Authority should have adequate time — within a few weeks, two months or three months at the outside — to make their decision. All too often applications to local authorities are held up and decisions are not given until the very last minute. This is not a great idea either.
The Authority should get on with their job. If they know that this constraint exists it will be a sober reminder to them to get on with their job and give their decisions with reasonable expedition. That is their job, and they should get on with it. I would be afraid that there could be many cases where the Authority, because they know they have all the time in the world, would not feel pressured to give a decision or may not realise the importance of speed in giving a decision and they may take their time considering an application — I agree with no malicious intent — because there is no pressure on them. They would get around to dealing with the application when they could, not knowing the pressure being put on businessmen and companies who might be hanging on, hour-by-hour or day-by-day, waiting to know what has happened to their application, whether it is being granted or refused. In many cases they would prefer their application to be refused rather than to be left waiting. Why should they be left waiting?
A person who submits his application and is left waiting cannot do anything about it; he has no recourse to the law to get a decision from the Authority. He is helpless. In many cases people who are adversely affected by a decision can seek court orders but they will not be able to do so under this Bill. The Authority will be able to say they will let him know when it suits them. There is no power on earth which would constrain them to get on with their job and make their decision known, whatever it may be. There should be a time constraint when it comes to making decisions.
If the Minister or anyone else thinks that the figure of three months is too short — Deputy Hogan thinks it is too long — so be it, I do not mind, but there should be some cut-off point. As I have said, commercial decisions, employment and all sorts of important matters could depend on that decision. Members of the public, the applicant and the Authority should know that the Authority are operating within a reasonable time limit, within which they have to make up their minds and give their decision one way or the other.
Time limits for particular actions by the Authority in relation to notifications should not be imposed by the Bill. I fear they would be too inflexible if that was done. The system envisaged by the Bill is new to Ireland and needs a chance to operate flexibly, particularly in its earlier years. The Authority will be able to make arrangements in relation to time limits where necessary. If this is appropriate after some experience of the workings of the Bill it can be done by way of ministerial regulation under the terms of the Bill. It would be best if this were done on the basis of practical experience rather than providing rigidly for it in the Bill in advance.
There may well be applications of great complexity and some considerable size which could not be dealt with by the Authority within the relatively short periods mentioned by the Deputies. On the other hand, I would envisage that the vast majority of applications will be decided within a period of months, as is suggested.
Amendment No. 7 proposes a deadline system which I believe would be dangerous. While every effort will be made by the Authority to deal with notifications as speedily as possible, it is impossible to guarantee that any predetermined deadline will be observed in every case. For example, what would happen under amendment No.7 if the deadline passes?
The term "certificate" just like the term "licence" is being used to distinguish the administrative nature of the Authority's decisions. Amendment No. 7 refers to negative clearance. Although that is a well known concept at European Community level, those words are not found in the Treaty or defined in the Bill.
The proposal in amendment No.10 would result in automatic refusal if a deadline was not observed by the Authority. The approach of automatic grant of a licence if a deadline has passed, as suggested on Committee Stage by, I think, Deputy Barry, is far too lenient. Correspondingly, the suggestion of automatic rejection on the passing of a deadline is far too harsh. It is obvious that the appropriate way of dealing with this matter is between those two extremes, which is what I proposed in the Bill and which I ask the House to accept.
(Carlow-Kilkenny): I find it hard to accept what the Minister has said. Those of us who have been members of county councils are fully aware of what An Bord Pléanála can do to individuals and companies because there is no time limit on them when it comes to making decisions. Very often people have to construct buildings, for which they got clearance from An Bord Pléanála, during the winter months. This can give rise to financial difficulties for them, and sometimes they have to abandon their plans. In view of this, I do not think we should pass a Bill which does not provide for a time limit in regard to making decisions.
There is a regulation which provides that if An Bord Pléanála have to write to applicants seeking information the time can be extended. Perhaps this could get over the rigid time limit envisaged. We have to remember that these applications can be left for a long time before any decision is given. Companies who invest a lot of money in the hope that an application will be granted may get into difficulties if it takes too long to make a decision. I do not see any difficulty in sticking with the three month period. However, I would prefer a period of two months, the period within which county councils have to give their decisions. If no time limit is provided for in the Bill, people will be left waiting for decisions. Time and money are very important to these people and sometimes they can be driven out of business if there is a delay in making a decision. I ask the Minister to reconsider this point as I do not think the argument he has put forward stands up.
I agree with the points made by my colleagues in regard to this matter. This is an important amendment. As Deputy Taylor said, time is one of the most important factors for commercial businesses. Time will not be a factor for the Authority, but in the case of many commercial businesses two months is a long time. Indeed, some concerns may go out of business during that period. This will have a knock-on effect for consumers.
If we are not willing in introducing competition legislation to impose a time limit on the Authority we will defeat the whole purpose of the Bill. In some cases some businesses may go out of business while awaiting a decision from the Authority. It is important, therefore, that a time limit of two months be laid down. In the case of applications to local authorities for planning permission a local authority can hold up an application pending the receipt of further information, which could delay a decision by up to two months. That should not be allowed happen in the case of the Competition Authority, given that the time factor in commercial businesses is extremely important.
I am amazed that the Minister favours the introduction of regulations. With all due respect, such regulations will not be introduced in one day and a night as the civil service do not motor at great speed on occasions. The Minister should accept the amendment, which is not unreasonable. If he wants to extend the time limit by one month we will agree. The Bill will be flawed if it is not amended now.
I am disappointed at the Minister's response. All he had to say was that the period proposed in the Fine Gael amendment was too short while that proposed by Deputy Taylor was to the other extreme.
I did not say that.
The Minister did say that. He told us we need to strike a balance, that one was too lenient while the other was too harsh.
Not the periods, but the consequences, which is a different matter.
I am sorry, I misunderstood the Minister. Prompt decisions will be required if a business makes an application for an exemption. This Bill will lead to considerable extra costs on businesses if a decision is delayed. That runs contrary to what the Minister has in mind. If a time limit is laid down people will be forced to make decisions quickly. There is no reason, if the Minister allocates sufficient resources and personnel to the Competition Authority to deal with these matters, there should be a problem in making decisions quickly. If a time limit is laid down people will be forced to make a decision quickly in the interests of the applicant and consumer. Past experience in the Department of the Environment should tell us that delays in deciding on planning applications lead to substantial extra costs on businesses and job losses when decisions were not made quickly. We should not allow this Bill through without laying down the necessary time limit.
Question put: "That the words proposed to be deleted stand".
The Dáil divided: Tá, 73; Níl, 64.
Tá
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- Ellis, John.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- 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.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
Níl
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Belton, Louis J.
- Bruton, Richard.
- Byrne, Eric.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Joe.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Ferris, Michael.
- Flanagan, Charles.
- Foxe, Tom.
- Garland, Roger.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kavanagh, Liam.
- Boylan, Andrew.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Flanagan and Boylan.
Question declared carried.
Amendment declared lost.
Amendment No. 8 not moved.
Amendments Nos. 9 and 12 are related and therefore may be discussed together. Is that agreed?
Is the Chair saying that amendments Nos. 9 and 12 are related? I do not see any relationship. They seem to be dealing with two completely different matters. Amendment No. 9 provides that the Authority may invite any person concerned with the matter to make observations, while amendment No. 12 provides that if an application is refused it must be published in Iris Oifigiúil. I do not see any relationship between those amendments.
The Chair indicates to the House what has been considered and presented to the Chair. In the circumstances where Deputy Taylor has drawn the attention of the Chair to the apparent lack of relationship, with which I concur, I take it that Deputy Taylor has made the point that it would not be in the best interests that they be taken together. We will take amendment No. 9.
(Carlow-Kilkenny): Is that a form of divorce?
I move amendment No. 9:
In page 5, to delete lines 31 to 34 and substitute the following:
"(5) Before deciding on an application for an exemption or a negative clearance certificate under this section, the Authority may invite any person concerned with the matter to offer such observations as they may wish to make and may accept and consider such observations or submissions from persons claiming to be interested as it may think proper."
This amendment seeks to allow people who are concerned with the matter, other than Ministers of the Government, to offer such observations as they may wish to make before the granting of a licence. I cannot understand how any business person or individual concerned with a licence application cannot make a submission or an observation to the Authority as he or she may see fit. Confining this privilege to a Minister of the Government may not generate all the additional information or bring to attention all the material evidence and information required to make a mature decision on the application. This is anti-business in that it does not give due consideration to all the facts that might be available before a decision is made. The widening of this definition to include any individual is important in opening up the application process to as many people as possible who would be directly concerned. I hope the Minister will accept it.
This amendment addresses an issue which is purely procedural. If something of this kind is provided for, it should be done either by the Authority adopting procedures as they are free to do under their powers in the Schedule, or, if it proves absolutely necessary, by the Minister prescribing procedures for the Authority. If procedures are laid down in the Bill and subsequently found to be unnecessary, unduly burdensome or otherwise undesirable, they can be changed only by primary legislation in this House. If the Authority found them to be burdensome or unnecessary and dispensed with them, it would call into legal doubt their decisions. As well as the principle involved that the regulations should not be made in the Bill but should be made either by the Authority or by the Minister, amendment No. 9 is, in any event, superfluous in that section 7 (5) permits the Authority to accept observations or submissions from persons claiming to be interested. This covers what the Deputy wants to achieve.
The Minister makes the point that the question of who the Authority invite to make submissions is a procedural matter and is not appropriate for inclusion in the main Act. He claims it would be more appropriate to regulations by the Minister or by the Authority. If that concept is only procedural and is inappropriate to the Act, why did the Minister find it necessary to insert subsection (5) of this section, putting into the Bill — not into any procedural arrangement — a specific Authority to invite any Minister of the Government. It goes beyond procedure and is an enabling rather than a procedural provision. It enables and empowers the Authority to do a certain thing. The Authority would need power delegated by this Bill to put them in a legal position to take this step.
The Minister says it could be a burdensome provision on the Authority but that argument does not hold up. The amendment provides that the Authority may invite any person; it does not provide that they shall invite people. It is purely a power given to the Authority if they wish to use it. If they consider it necessary they may invite other persons to make observations or submissions. If it is appropriate to make this provision in respect of a Minister, why is it not appropriate to make a similar provision in respect of anybody else? It could be deemed beyond the powers of the Authority to call in other people or beyond the power of the Minister to enable them to do so. The fact that there is already in the Bill a specific provision dealing with the delegation of power to the Authority to call in the Minister would mean by exclusion that nobody other than a Minister could be invited to make submissions. The argument could run that, if the Oireachtas intended it to be open to the Authority to invite in persons other than Ministers, the power in subsection (5) would not have been confined to a Minister. The subsection would have provided for them to invite the Minister or any other interested person to make a submission.
It is a very modest and reasonable amendment. What harm could it do? It does not compel the Authority to do anything. It simply provides that if they feel that another person or group can be helpful to them in their deliberations they can invite that person or group to make a submission. There could be an application to do with the motor trade and the Authority might decide it would be helpful to have a submission from the motor traders' association and send for their representatives. Maybe they have something to say about this which would be of interest to us. It would give an invitation to the Authority to proceed along those lines. It seems quite harmless. It could not be burdensome as the Minister says because their is no obligation——
As I pointed out to the Deputy, section 7 (5) provides exactly the same thing, so what is the point of putting it twice into the Bill?
I do not think it is quite the same thing. Section 7 (5) provides: "For the purpose of the exercise of its functions in relation to licences under section 4 (2) and certificates under section 4 (4) the Authority may accept such observations...." I think there is a distinction between accepting observations, as the subsection provides, and going out to invite people, in other words taking the initiative and seeking people who might be in a position to make helpful submissions on the matter. I agree it is close to it but not quite the same. Under the amendment the initiative would rest with the Authority and they would be entitled to decide whom they would seek to invite in, whereas section 7 (5) would slimply authorise a person, who had by some unknown means, I do not know who, heard the application was pending, to send in a observation. I do not know how anybody is going to be in a position to exercise section 7 (5).
How are they to know the application is pending? I think I have an amendment down on Committee Stage to provide that applications pending were to be advertised so people would know they were pending and consequently would be in a position to make observations as would be possible under section 7 (5), but that was voted down and not accepted by the Minister. Therefore a member of the public, other than a person concerned with the application, would not know an application was pending, so how could such a person make observations?
The Fine Gael amendment is different. That gives an initiative position to the Authority. They say they will on their own initiative go out there and invite people to come in, but the fact that section 7 (5) is there negatives the Minister's suggestion that it is a purely procedural matter that should be dealt with by regulations. There it is, even in his format, in section 7 (5).
I think Deputy Taylor made a very valid point on section 7 (5). The difference is that the Authority may accept observations or submissions, while this amendment seeks to insert in the Bill a provision that the Authority would notify people who are directly concerned with an application and invite submissions or observations on it. It is an automatic notification that such an application exists, that an application has been made. How often do we hear of instances where for one reason or other the publication per se of applications or notification through various official media are not always seen by certain individuals or people directly concerned through no fault of their own? We have experience of that, particularly in planning applications. In rural areas if newspapers are not in wide circulation, particularly evening papers, on a Saturday evening you might find a planning application.
While the Minister has rightly pointed out that section 7 (5) is to some extent a modification of the amendment and he goes some way towards the principle of what the Fine Gael amendment is about, nevertheless I feel the onus should be on the Authority to inform people better and invite submissions and observations from interested parties rather than merely accept them per se from organisations. In that way they can just accept them literally and leave them at that, in other words cover themselves in so far as they have asked people to make observations and they can decide to do nothing about them. Nevertheless, I am not going to make a big issue out of it on amendment No. 9. Section 7 (5) goes someway towards resolving the matter but I feel the Minister is walking a thin line and should understand the difference between inviting and accepting observations.
Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 5, lines 35 to 41 and substitute the following:
"(6) On granting or refusing an exemption or on issuing or not issuing a negative clearance certificate under this section, the Authority shall forthwith give notice in the prescribed manner to every undertaking to which it relates and to such interested persons as it chooses stating the terms and the date thereof and the reasons therefor and cause the notice to be published in Iris Oifigiúil and in at least two separate national circulation daily newspapers published in the State. In so doing it shall have regard to the legitimate interest of undertakings in the protection of the confidentiality of their business. The Competition Authority shall prepare and publish on a quarterly basis a report of all decisions to grant or refuse an exemption or to issue or not to issue a negative clearance certificate along with a summary of the reasons for the decisions. Such report shall also contain information relating to court decisions with respect to matters relating to the Competition Act, 1991. In so doing the Authority shall have regard to the legitimate interest of undertakings in the protection of the confidentiality of their business. The reports are to be published in January. April, July and October of each year and the report published in a given month shall refer to the preceding three month period.”.
The point here is confidentiality. This amendment deals with the publication of the granting or refusing of an exemption in two separate national daily newspapers. There was an argument on Committee Stage about the manner in which this notification was to be circulated. This amendment also deals with the reporting procedure under the Competition Act, 1991, and states that reports should be published on a regular basis. The amendment suggests that it be done quarterly and that it not go further than three months after the end of the previous calendar year for discussion. Often various reports under legislation in this House wait for the annual accounts of a company or an authority. This should not necessarily be the case. One should not have to wait for the annual accounts or annual report of any company. Issuing a report three months after the end of the calendar year and regularly on an intermittent basis in January, April, July and October of each year gives people valuable information on the working of the legislation and provides a mechanism by which businesses can examine the decisions of the Competition Authority and the court decisions so they become familiar with the decisions and the case law. This will build up a reservoir of experience for companies for future application.
Confidentiality can be breached by publication of these reports, so it is important to confine the information so that it does not get into the hands of business competitors. Confidentiality is very important in this matter. Experience built up is important and can be gained only as a result of publicising the report on a regular basis. Various reports that are laid before this House are kept under wraps for a considerable time and issued only at the appropriate opportunity. There is no compulsion on the Minister or on authorities to issue reports regularly or under a time limit. The fair trade report is a perfect example. It was finalised in December 1989 and was not published until late April 1991. In relation to this legislation regular reports should be made quarterly and an annual report should be made not later than three months after the end of the calendar year.
I will let Deputy Taylor go ahead.
No, I am not going ahead of the Minister.
The main part of this amendment was discussed at length on Committee Stage and disposed of then. As far as I can see, the part of it that is new is that relating to quarterly reports. This amendment would require the Authority to carry out administrative actions which in many cases may not be appropriate. It is certainly not appropriate to make these requirements compulsory in the Bill. They are issues best left to practical experience. If practical experience showed that any of these were in fact necessary it should be done by ministerial regulation, for which there is a power in this Bill.
The notion of a quarterly report is an overly bureaucratic approach. It is ridiculous to expect this body or any other to produce five reports every year. They would probably need a couple of staff employed full time to do nothing else except produce reports which are of limited value. The Authority will publish their decisions on a regular basis, so the question of having to produce another quarterly report as well as publishing their decisions every week, every fortnight or whatever it will be, does not make sense.
Apart from the annual report, which is already provided for in section 12, I think there is no need for these periodic reports. The weekly publication of decisions and the annual report will give more than enough publicity or information to anyone who requires it.
Amendment, by leave, withdrawn.
Amendment No. 13 not moved.
I move amendment No. 12:
In page 5, between lines 41 and 42, to insert the following:
"(7) On refusing an application for a licence or on refusing an application for the issue of a certificate under this section, the Authority shall forthwith give notice of such refusal in the prescribed manner to everybody to which it relates, stating the date thereof and the reasons therefore and shall cause the notice to be published in Iris Oifigiúil and in at least two daily newspapers published in the State.”
The Bill provides that when an application for a licence or a certificate is granted, information about it is published in Iris Oifigiúil. That is perfectly right and understandable. The ideal scenario, as I said earlier, would have been that advance notification of a pending application to the Authority would be published so that people could deal with them and respond to them, but that is not to be. However, I take the view that the refusal of an application for a licence or a certificate is also a matter that warrants publication. The public generally are entitled to know that such an application for a licence was made and refused and the outline of the circumstances of the application. Other people in that trade and in that business should know and are entitled to know what is going on in their trade in regard to competition and applications for derogations under the Bill. It is not a matter that should be kept secret. There is nothing secretive about it. It is in the public interest.
Mention was made of the fact that if these refusals had to be published that would involve expense. The publication of a result in Iris Oifigiúil certainly would involve some small expense — I am not sure what exactly that expense would be — but the fact that it was published, while it might result in some expense in some way, would save much expense in another way because other people, firms or individuals who might be minded to make a similar application, would thereby be discouraged from doing so because they would know from having read it that such an application for a licence was made in particular circumstances and was refused. If it is not published they have no way of knowing that such an application was made and refused; for all they know it is still an open issue, they may very well go to considerable expense in retaining the services of consultants and experts and putting together a substantial application for a derogation, all of which would be a complete and utter waste of time for the simple reason that an identical or similar application has already been refused by the Authority. That is why I say it is in the public interest that these things should be known.
When the Authority give a considered decision on a substantive application before them, be it granted or refused, members of the public and people in that trade are entitled to know about it. The publication of the result of these applications would build up a body of guidelines and knowledge about the trade and that activity that would be available for consultation. People who specialise in making these applications would know what was going on and would be in a position to advise prospective companies as to the position, just as in legal matters law cases are reported and nobody says when the plaintiff wins it is reported and when the defendant wins it is not reported. A body of case law is built up and that provides a guideline for people's acts and actions in the future. I would have thought that was a fair point. While I accept the point that the publication would involve some small expense, it would be relatively small compared to what might be thrown away in a lot of unnecessary duplicated applications. The cost of putting in an application and preparing the material would be very substantial and out of all proportion to the cost of one publication in Iris Oifigiúil and it would save the Authority much time in dealing with duplicate applications which might build up and which would not be submitted in the first place if the people making them knew that a similar application had previously been made and was rejected.
This amendment deals with a request for the publication of refusals of licences of certificates. Since refusals have no effect whatever on third parties it seems that publication is not essential and if it is not essential it should not, therefore, be compulsory. It will be possible for the Authority to publish a refusal if they consider in individual cases that that might be beneficial. There is no prohibition on the Authority doing that. My view in all of these matters is that the system should be kept as simple, as inexpensive, as flexible and as reasonable as possible.
Procedural requirements of the kind being urged on me now in the last four or five amendments should not appear in the Bill unless they are absolutely essential. Such procedures can be carried out by way of regulation if they prove to be necessary. There is nothing in the section or in the Bill which prohibits the Authority publishing. I would envisage that in some cases, where a great deal of public interest might be involved or where it might be beneficial to the public at large to know of the refusal, they would publish it but it should not be compulsory because a huge number of these cases would be similar and, of course, a great many of them would be very trivial and would be of no public interest.
The amendment does not require just a publication in Iris Oifigiúil— which I believe is very expensive — but also requires publication in two daily newspapers. If notices have to be put in newspapers under the obligation of a statute, they will be charged at the very highest possible rate, so that the question of expense and bureaucracy are not irrelevant here and there would be no public benefit from it.
I take the point the Minister makes about the expense and I dealt with it when I moved the amendment. I would say this and I am not asking the Minister to give a reply to it now: I would have thought that some basis should be devised whereby any decision of the Authority should be accessible to members of the public, particularly people who are considering making an application to the Authority. Maybe the Authority and the Minister could consider dealing with the matter by way of providing a register to be maintained at the offices of the Authority under which all decisions would be recorded, perhaps with a cross-index in relation to subject matters, names of applicants and so on. That register should be open to the public and available for inspection so that intending applicants for a licence could check the register to see what applications had been made and if a decision had been given on a particular matter. At least that would avoid the expense of publication and would mean that there was some public accessibility to the information.
Amendment, by leave, withdrawn.
We come to amendment No. 14 in the name of Deputy Barry. Amendment No. 15 is related and I suggest, therefore, that we discuss amendments Nos. 14 and 15 together. Is that agreed? Agreed.
I move amendment No. 14:
In page 6, between lines 22 and 23, to insert the following:
"(3) (a) `Below cost selling' which constitutes unfair trading is to be considered an abuse of a dominant position.
(b) In examining `below cost selling' of an `unfair trading' nature the Authority must have regard among other aspects not only to the interests of consumers at the point in time in question, but also to the likely state and development of competition and the future interests of consumers as the consequences of `below cost selling' are experienced over a reasonable time horizon.
(c) In examining `below cost selling' activities the Authority must have regard to the following:
(i) competition within the sector in which the supplier and/or retailer exists,
(ii) the implications for suppliers and/or retailers specialising in the product or product grouping subject to `below cost selling',
(iii) the immediate and longer term likely impact of below cost selling activities on prices and service (including hours of opening) across the product and product grouping subject to below cost selling and across the range of products and products groupings supplied and/or retailed by the undertaking engaging in `below cost selling' activities.".
This amendment dealing with below cost selling was the subject of considerable debate on Committee Stage. The Minister will be aware of the Restrictive Practices (Groceries) Order, 1987, and we believe that this Order should be enshrined in the Bill. Everybody is aware of the difficulties which pertained before this Order was implemented in 1987. Indeed, one supermarket chain went into liquidation, a considerable number of suppliers lost very heavily financially and many employees lost their jobs, with a consequent loss of pensions. This was because of below cost selling. If there were good reasons for introducing the Restrictive Practices (Groceries) Order, 1987, surely the same reasons prevail today? The Order balanced the market in so far as it brought some stability to the grocery trade. It has ensured that no major supermarket chain which is much stronger financially than another can engage for a period in a price war and drive another supermarket chaim out of business. That would result in a monopoly which is not in the best interests of the consumer.
The basis of the amendment is to ensure that the long-term interests of the consumer are protected, that there is a level playing pitch in relation to the sale of grocery products in particular and that there is not an abuse of a dominant position by one individual supermarket chain over another. We should ensure that the small shopkeepers in our towns and villages are not victimised vis-á-vis large supermarket chains. The argument will be that the consumer is best served by the large supermarket chain in the nearby town in so far as their prices are lower than the neighbourhood shop. That might be the case in relation to some products or it could be predatory pricing. However, one must also take social factors into account in small towns.
As I said, if the reasons for introducing the Order in 1987 were good and valid, why is it not stated in this Bill that we should ban below cost selling? The knock-on effect of not doing so could be considerable. While I understand that the Minister is awaiting a report from the Fair Trade Commission on this Order, it is very unusual to introduce legislation in advance of it. The report will give us some indication of what is happening in the marketplace in relation to that Order, if it has been effective and, if not, what changes could be made or what improvements are necessary in the Bill to ensure that there is not unfair domination by one group over another. Perhaps this report will not be published for 18 months, as happened to the report by the Fair Trade Commission on competition. However, I hope that will not be the case. I would be grateful for the Minister's response to my complaint that below cost selling is not enshrined in this legislation. What impact does he consider it will have on consumer prices and the abuse of a dominant position? What powers will he subsequently have to reintroduce the ban on below cost selling through this Bill, if necessary, following the publication of the report?
The Minister to reply.
I would prefer to wait, it prolongs the matter if I reply too soon because Members can then disagree with me.
No Member is offering.
(Carlow-Kilkenny): The Minister is slow in coming out of the starter stalls.
It is a siege mentality.
Since no Deputy is offering I call on the Minister.
As Deputy Hogan said, this question was debated at great length on Committee Stage. This is essentially the same point, I think it is exactly the same amendment, if not, it is certainly within a word or two of it. It is not the normal purpose of Report Stage to replicate the debate on Committee Stage, particularly in respect of matters which were specifically decided there, as this question was.
The Treaty of Rome does not contain any explicit reference to below cost selling and it does not contain any explicit ban on below cost selling. It also does not contain any explicit reference or ban on perhaps 200 other practices which are disapproved of an disallowed for different reasons in particular circumstances. However, that does not invalidate the fact that they are not allowed. Selling below cost is not always necessarily anti-competitive — I emphasise that — and to put in a provision like this would have unfair results. It would mean that fresh produce which was going off, or liable to go off shortly, could not be disposed of by a shop and anything fresh unsold within one day of coming in would have to be thrown out if it could not be disposed of in the normal way. We cannot have a blanket ban of this kind. The existing order in force does not create a blanket ban of the kind envisaged in this amendment.
Predatory pricing has been recognised by the European Court of Justice as being one form of abuse of a dominant position. Below cost selling can often be regarded as predatory pricing but the two terms are not necessarily the same. One does not necessarily equal the other. Below cost selling which constitutes predatory pricing is the form that creates the problem. I am satisfied that the Bill will cover it for that reason, when one takes into account the judgments that have been given in the European Court of Justice.
The amendment seems to intend to deal with difficulties perceived in the grocery trade but this section and this amendment is not the way to address these difficulties; it can be done differently. What I have made clear during Committee Stage and I repeat it now — I have said this many times in the House and outside it — is that I have no proposal or intention to repeal the existing grocery Order until I have had the opportunity to see consider fully the report of the Fair Trade Commission into the grocery trade and until I have had the opportunity to see how this Bill will work in practice in relation to the matter concerned. Until I am satisfied in that regard I do not propose to repeal the order. The Deputy need have no fears in that regard.
Amendment No. 15 which I understand is being taken with amendment No. 14 seeks to add a further provision to what effectively are the provisions of Article 86 of the Treaty of Rome. The introduction of these terms would mean a significant departure from the wording of the Treaty of Rome. It would not be a good idea to encumber section 5 of this Bill with a long list of particular practices. If that is done, anything that might arise in the future and which is not included in the list would, by implication, be excluded from the provisions of the section and from the protection that is given by the section, and that would be a pity.
Subsection (2) of section 5 lists particular general examples which are drawn directly from Article 86 of the Treaty of Rome. It should be noted that that subsection starts with the words "Without prejudice to the generality of" in order not to prejudice the generality of the prohibition. Thus it will be open to the courts to examine particular practices without their being enumerated separately in the Bill. If we start enumerating them in the Bill anything that is not enumerated will in practice tend not to be considered by the courts. Therefore, undesirable practices of a kind that are not engaged in at present but which might start in a year's time or five years' time would be regarded as being outside the scope of the prohibition, and I think everyone in the House would agree that that would be entirely wrong.
Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
I move amendment No. 16:
In page 6, between lines 22 and 23, to insert the following:
"(3) If a complaint is made to the Authority by any person that an abuse has occurred which is prohibited by this section the Authority shall, unless it considers the complaint to be frivolous, investigate the complaint and shall report its findings to the Minister. If, in the opinion of the Authority, the findings so warrant, the Authority may proceed with any of the proceedings provided for in this Act.".
This is an important amendment. It proposes to give an important role to the Authority that they otherwise would not have under the terms of the Bill. It seems that an ordinary individual or consumer would not have the resources available to them to investigate the question of whether a dominant position had been built up in trading goods and whether it was being abused. That is a very major and complex question and would require resources and expertise that the ordinary citizen in this country would not have. A person or small company who felt they were being adversely affected and were losing out would not be in a position to retain economists and experts and to make all the exhaustive detailed inquiries necessary to enable them to go to the High Court or Circuit Court, as may now be the case under the Minister's welcome amendment, to try to prove that a particular large company had established a dominant position in a particular trade and that they were abusing that position. One would need the evidence of economists, experts, specialists and so on to establish that.
What I am seeking to do by way of this amendment is to give a role to the main controlling body in charge, namely the Authority. The Authority should have at their disposal staff to examine these matters. After all, they will be dealing with applications and will need expertise at their disposal all the time to enable them to come to informed decisions. If any individual or small company makes a complaint to the Authority that an abuse of a dominant position has occurred of a type which is prohibited by the Act the Authority, unless they consider the complaint to be a frivolous one not worthy of being followed up, would investigate the complaint. They would put at the disposal of members of the public and of consumers their staff and resources to investigate the allegation, provided they have first come to the conclusion that the complaint is not a frivolous one.
If this Bill is to have any real meaning in so far as ordinary people, consumers and small companies are concerned, the Authority must have a role in the enforcement of the protections being granted by this Bill. The Bill is an important one, and I know the Minister regards it as such. I would not over-emphasise its importance but it certainly has a very important role to play. In common with others, I am anxious that the new rules and controls being introduced in this Bill have at least a reasonable prospect of being enforced. If the enforcement is to be left entirely to the private citizen to carry out from their own resources a major difficulty would arise in many cases.
There would be no problem in so far as big powerful companies are concerned. They could call in economists and all the expertise they would need to set about a court action to try to stop an abuse of a dominant position, but that would not be the case for the ordinary person. The only body they could turn to for help would be the Authority set up under this Bill, who would have knowledge of these cases, would have examined them and dealt with applications for exemptions and would have people at their disposal to carry out an investigation. My amendment states that the Authority shall carry out an investigation, report their findings to the Minister and, if there has been an abuse of a dominant position they may — may is the word I use — proceed with any of the actions authorised by the Act. There would be no obligation on them to do so. It will be noted that they may proceed to do that, and hopefully in an appropriate case they would do so. I commend amendment No. 16 on that basis.
I concur with what Deputy Taylor has said. The whole purpose of the Bill is weakened by the fact that the Authority will not be able to provide this remedy to the aggrieved person. It seems that on the one hand the Minister wants to end anti-competitive or concerted practices that disort trade, whether it is an abuse of a dominant position or whatever, but the actual remedy is beyond the scope of the aggrieved person envisaged in this section. Therefore, since the amendment carefully seeks to provide that frivolous or trivial cases that might be initiated be dismissed out of hand, when a prima facie case is established I do not see why, if we are serious about having sanctions imposed against people who engage in anti-competitive practices, the Authority should not be permitted to take the necessary action. At the end of the day, it is not much of a sanction if people feel they can engage in anti-competitive practices with impunity because an aggrieved person does not have the financial capacity himself or herself to cause the necessary investigations to be carried out as envisaged under the legislation. The amendment is eminently reasonable, and I cannot imagine why the Minister would not wish to take it on board.
The amendment suggests that the Authority carry out investigations on foot of representation received from any member of the public leading to the possibility of proceedings being taken by the Authority.
The primary work of the Authority is to issue licences and certificates and make judgements on exemptions and matters of that kind. The amendment would place an obligation on the Authority, unless they could satisfy themselves that a complaint was frivolous, to carry out an investigation. In a country like this, I wonder whether it is right that a particular statutory body — which would be, certainly in its early years, under great pressure of time and other resources — could be required to carry out an investigation into every complaint it received other than those that were clearly frivolous. That would be an obligation placed on the Authority; the Authority are given no discretion. It would be possible for them to carry out an investigation into every complaint received.
The amendment puts no restriction on the people who could complain. For example, a major competitor or a group of major competitors of a particular business could very easily couch a complaint in such a way that the Authority could not discount it as being frivolous. Such people could, for purely selfish and competitive reasons, cause an investigation into one of their competitors. If Members reflect on that point, they will agree that such a position would be most unsatisfactory. If the amendment were accepted, the Authority would not have the time to do anything but investigate matters that had been brought to their attention, which is really not their appropriate function.
The amendment is in many ways similar to the earlier proposal that the Director of Consumer Affairs and Fair Trade play an enforcement role. The idea of the Authority playing a role as is proposed in the amendment is not appropriate. The same arguments of principle apply with respect to an enforcement role for the Authority as those detailed on Committee Stage when talking about the Director of Consumer Affairs and Fair Trade. If anything, the arguments would be somewhat stronger, because the Authority have a quasi-judicial function in any event whereas the director had none.
An additional point that needs to be made is that since the Authority carry out the role of investigation and adjudication on applications for licences and certificates, it would be particularly inappropriate to give them the role of prosecution also.
One of the Bill's core features is its enforcement mechanism, which has been debated at length on both Second Stage and Committee Stage. It is not necessary to go into that issue again, but in the very limited competition or anti-restrictive practice law in Ireland until now, emphasis was laid on the State as the primary enforcement agency. Provision was made for some private enforcement of the legislation, but that was rarely used. The kind of enforcement provisions under the Bill are the best in all the circumstances.
Section 6 (4) gives the Minister power to take action in the public interest when he considers that it is appropriate to do so. In other cases it is appropriate that the aggrieved party take the action, particularly when that concerns people whose economic rights have been damaged. It is not appropriate that the Authority should be compelled to hold an investigation on the complaint of "any" person in the State unless that complaint were shown to be frivolous. It is easy to put together a complaint and show that it is not entirely frivolous, but the amendment would place an impossible burden on the Authority and would open up avenues for the most serious abuse between competitors in a particular trade.
It should not impose any undue burden on the Authority for them to send out an investigator to investigate a complaint when such complaint is genuine and not frivolous. After all, section 5 takes steps to prohibit certain activities, that is, the abuse of a dominant trading position. Abuse of a dominant trading position is prohibited by law. We have an obligation to ensure that that means something, that that will be carried into effect. I hope it is not intended to convey that abuse of a dominant trading position is prohibited, provided the person adversely affected has substantial money and resources and is able to do something about it. Is that what is meant when it is said that such activity is prohibited? Is the activity prohibited only provided the company hit by it has substantial resources? The legislation must mean more than that. The free legal aid system would be completely inadequate and of no help in such instances.
People or companies adversely affected by the new right given under the Bill would have to be able to turn to somebody or some Authority for help if they did not have the resources behind them to take the necessary action, and most people will not have the necessary resources. The Authority would be an appropriate body to do that. They will know about the business, they will be involved in it; they will have a quasi-judicial function in so far as applications for exemptions are concerned, but that is not at issue here. What is at issue is abuse of a dominant position.
It is open to any citizen to make a complaint to the gardaí about actions prohibited by law, and nobody says that it imposes a terrible burden on the gardaí to investigate things that are prohibited. That is their job. When something is prohibited by an Act of the Oireachtas a private citizen should be able to turn to someone or some Government institution — be it the Authority, the Director of Consumer Affairs or someone else — for help. That is all I seek to provide in the amendment. There should be a person or an organisation to whom private citizens can turn, otherwise there is no great merit in prohibiting anti-restrictive activity. That may be prohibited, but nothing will happen unless there are the means provided to do something about it.
It could be argued that the matter should be amendable to prosecution in the District Court but the Bill does not provide that. The Minister considered that, as he told us on Committee Stage, and decided that the civil remedy was the appropriate one. I am not sure whether that was the correct decision, but that is neither here nor there. It is the civil remedy that has been decided on, even though the conduct is described as being prohibited rather than as unlawful or anything else. It must be the Authority and it is a matter for the Minister and the Government to provide whatever resources are reasonably necessary to the Authority to enable them to investigate a genuine complaint made to them, and if they decide that there is something in the complaint when they carry out the investigation and they consider it appropriate, they may — they do not have to — bring an application or an injunction. They may do so if they consider the circumstances warrant it. I believe this amendment is important and I hope the House will support it.
Amendment put.
The Dáil divided: Tá, 60; Níl, 74.
Tá
- Ahearn, Therese.
- Allen, Bernard.
- Barnes, Monica.
- Belton, Louis J.
- Boylan, Andrew.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Joe.
- Durkan, Bernard.
- Enright, Thomas W.
- Fennell, Nuala.
- Ferris, Michael.
- Finucane, Michael.
- Flanagan, Charles.
- Garland, Roger.
- Gilmore, Eamon.
- Gregory, Tony.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Bradford, Paul.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Kavanagh, Liam.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael.
- (Limerick East).
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Pattison, Séamus.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- 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.
- McCreevy, Charlie.
- 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'Hanlon, Rory.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Quill, Máirín.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
Tellers: Tá, Deputies Howlin and Ferris; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
On a point of order, I think there is agreement in the House that we may rise for 30 minutes at 6.30 p.m., if that is agreeable to the Chair.
The Chair will not take issue with the House over having made such a wise decision. Agreed? Agreed.
(Carlow-Kilkenny): I move amendment No. 16a:
In page 6, between lines 22 and 23, to insert the following:
"(3) This section applies to both private and public sector companies and agencies."
This amendment seeks to ensure that public sector companies are covered. Semi-State companies have a tremendous advantage and a monopoly in many cases and it is difficult to justify their exemption from this. The ESB, for instance, have an effect on traders dealing in television. By using their offices to sell television sets, and through their use of an unfair hire purchase system, the ESB have a definite advantage. They also send out advertisements with their bills. It would be grossly unfair if small family firms and private companies who have been giving employment and a service down the years were wiped out. The figures show that the ESB may have up to 87 per cent of hire purchase sales and that is serious. If we are talking about a Competition Bill and a level playing pitch we will have to see that the pitch is levelled in favour of private individuals. I want an assurance from the Minister that my worries are unfounded and that companies such as the ESB will be covered by this Bill.
This amendment is unnecessary. We discussed this issue fully this morning and I made it clear that the Bill applies to commercial activities in both the private and the public sector without distinction. That was made abundantly clear this morning in a debate on an amendment in the names of Deputies Rabbitte and Taylor which would have had the opposite effect, in other words that the Bill should not apply to public sector companies. I was not prepared to accept that. It applies to all commercial activities carried on in the private and public sectors.
This was thrashed out on Committee Stage. It is important to emphasise the problems with regard to, for instance, the dominant position which the ESB have over small family retailers. Letters were sent to each Member to the effect that people who work in ESB offices sell white goods for some part of the day and spend the rest of the day accepting payments for bills. This leaves small retailers competing with this semi-State body in an unfair position. It is extremely important that this legislation brings to an end the dominant position enjoyed by the ESB. If this is not done our efforts to bring in a competition Bill which will enable businesses to compete on an equal footing and consumers to get the best prices on offer will amount to nothing. If this practice is not brought to an end small companies will go out of business. This will inevitably lead to a monopoly by the ESB in this area, which will mean that prices will be increased. While consumers may get a better deal in the short term from the ESB they will suffer in the long term. The ESB are able to give consumers a better deal, which is understandable in view of the amount of State funding they receive, but as I said, consumers will suffer in the long term if small family run enterprises are put out of business and the ESB are allowed to gain a monopoly in the market.
(Carlow-Kilkenny): I am glad to note that this issue will be covered by the Bill. The first duty of the company set up by the State to provide a specific service must be to provide that service at the cheapest rate possible. The ESB were set up to provide electricity and I do not think they should be in the business of offering hire purchase agreements with no interest charges. As I said, I am glad the Bill covers this point.
This Bill will enable smaller companies to compete with the ESB on a level playing pitch. We must remember that we now have to rely on small employers as the days when foreign companies set up here giving employment to 500 or 600 people are over. We need to ensure that small businesses are given a fair crack of the whip and do not have to compete with a company who have large offices, in some cases offices much too large for what is required, whose offices are well heated, equipped with computers and so on so that there is no problem in offering hire purchase agreements to people buying televisions. I welcome the provisions in this Bill to protect small retailers dealing in television sets.
On this point——
Having called on Deputy John Browne to conclude the debate on the amendment, the debate on Report Stage must be regarded as having being finalised.
Will I be allowed to correct the record? It was stated here specifically by the Minister and by the Fine Gael spokesperson that the ESB cut off electricity supply if people do not pay for the goods they have purchased from them. Those allegations were wrong. The ESB specifically bill people for the electricity they use and that electricity supply is cut off only if there is default in payment for electricity——
Deputy Byrne, tá tú as ord.
This is an abuse of the procedures of the House.
I thought Deputy Byrne was going to make a minor point.
I was making an important point.
Nothing is more important than the order of the House, Deputy Byrne.
What he is saying is untrue anyway.
I thank you for facilitating me.
You have abused the concession given you, Deputy, and the Chair has learned a lesson.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 6, between lines 22 and 23, to insert the following: "6.—(1) The Authority shall submit proposals to the Minister on unfair practices or unfair methods of competition in respect of particular sectors or activities where the issues arising cannot or cannot adequately be encompassed by sections 4 (1) and 5 (1) of this Act. (2) The Minister having considered the proposals of the Authority and the report on which they are based may, if the interests of the common good so warrant, make an order to do all or any of the following— (a) to prohibit unfair practices or unfair methods of competition, (b) make such provision in regard to unfair practices or unfair methods of competition as to promote competition.".
This amendment arises out of a recommendation made by the Fair Trade Commission in their report. They referred to the need to cover all other eventualities not covered under sections 4 and 5. This amendment seeks to ensure that other unfair methods of competition will be covered by the Bill. Some practices which may seen to be pro-competition may, in fact, constitute unfair trading.
The approach adopted in this legislation is to move away from the sector by sector or trade by trade approach of the old restrictive practices legislation. We have also with this new legislation provided broad general rules to protect competition in the common good. All anti-competitive practices and abuses of a dominant position are prohibited. The making of orders in particular cases would be a time wasting exercise. In a sense, the proposals provide means for the Authority and the Minister to side-step decisions taken by the court in applying sections 4 and 5. If this were to happen it would be undesirable. Therefore, I cannot accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 6, to delete line 29 and substitute the following: "(2) (a) Subject to paragraph (b), an action under this section shall be brought in the High Court.
(b) An action under this section may be brought in the Circuit Court in respect of any abuse which is prohibited under section 5 but any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort.".
As I said on Committee Stage, it has always been my intention to make the law as accessible as possible to all. There are certain constraints which must direct our decision making in this area. Principal among these is the jurisdiction of the courts as it stands. I mentioned that it would not be possible to give power to the District Court as it does not have the jurisdiction to grant injunctive relief as specified in this Bill. I see no reason the Circuit Court should not have jurisdiction in this area where this is feasible under the new legislation once a body of law has been built up.
This amendment proposes to give the Circuit Court jurisdiction in respect of any abuse which is prohibited under section 5. This would have the effect of reducing the cost to litigants and make the bringing of an action logistically simpler. I would not propose commencing the subsection immediately. As I said on Committee Stage, time should be given for the High Court to settle the important points of jurisprudence before extending jurisdiction to the Circuit Court.
Full and thorough consideration was given to the possibility of conferring jurisdiction on the Circuit Court for actions under section 4. Several difficulties arose but the pivotal one centred around the right already enshrined in the Bill to appeal decisions of the Authority to grant a licence or certificate. If jurisdiction were granted to the Circuit Court it would lead to the unsatisfactory situation where proceedings in some cases would be commenced in the High Court and others in the Circuit Court in different counties with the potential for different decisions in different courts at the same time. This would certainly lead to protracted confusion and uncertainty which would be in nobody's interests.
I welcome the amendment in so far as it goes but I am sorry that the Minister did not see his way to go further with it. On Committee Stage I moved an amendment which proposed to give the Circuit Court and District Court jurisdiction to entertain claims for damages. I excluded the relief by way of injunction being granted in the District Court because the District Court does not have power at present to grant injunctions. However, it does have the power to award damages up to, I think £2,500, which will shortly be increased to £5,000. I made the point on Committee Stage that it would be inappropriate to require a claimant wishing to enforce his rights under this Bill and seeking no more than £1,000 or £2,000 in damages to go to any court other than the District Court having regard to the high legal costs and risks involved. I argued it would be unfair and unjust to push a would-be litigant into a higher court, to the High Court or even the Circuit Court, if all he was seeking was small or nominal damages. The Minister has met us half way in proposing that jurisdiction be given to the Circuit Court which was not proposed in the Bill as published. That is to be welcomed in so far as it goes.
I do not agree that there is a need to defer the implementation of that subsection until, as the Minister said, a body of judicial decisions is built up in the High Court. It will be a long time before a major corpus of court decisions is built up in the High Court for the simple reason that proceedings brought under the subsection will be few and far between having regard to the fact that such proceedings in the High Court will involve enormous expense. That will be the position initially. The sooner the subsection is brought into play the better.
I also regret that the Circuit Court jurisdiction, being granted in the Minister's amendment, is confined to remedies under section 5 and that remedies under section 4 are excluded. This seems to be entirely illogical when the matter is looked at objectively. The Minister's explanation is that appeals against the grant of licences under section 4 will be heard in the High Court which is correct but I would have thought that the way to rectify the anomaly would be to amend section 4 to provide that appeals against the grant of licences would be heard in the Circuit Court, an adequate court to hear such appeals under that section. If the Authority are an adequate body to consider applications for licences in the first instance the Circuit Court should be considered to be the appropriate body to hear appeals given that it is the court of appeal for many other quasi-judicial bodies in matters such as taxes, planning and so on. I say this having regard to the fact that a decision of the Circuit Court may always be appealed to the High Court. The matter has the capacity in an appropriate case to end up in the High Court.
The present position is unsatisfactory in this respect: if an appeal is taken to the High Court it has the capacity to end up in the Supreme Court. That amounts to major, expensive and prolonged litigation. The level at which the provision has been pitched in so far as court hearings are concerned is too high. The Minister's amendment represents one modest step in bringing reality to the jurisdiction in which the case is to be heard. To that extent it is welcome but in all honesty it does not go far enough.
I welcome the amendment as it is important that a person can gain access to justice. Taking a case to the the High Court can involve considerable compliance costs and delays. The Minister said this Bill will make a major impact on employment and a proposal which will lead to considerable compliance costs is not a step in the right direction. This amendment which will allow cases to be heard in the Circuit Court represents an improvement. Allowing for Deputy Taylor's interest in this matter — the legal profession would prefer to see the matter being dealt with in the District Court — because of the importance of this legislation to major companies and, in some instances, to small companies the Circuit Court is the appropriate court to deal with this matter.
I welcome the decision of the Government to establish a small claims court. Time and again Bills have been enacted without the necessary resources or backup facilities being made available to the Judiciary and the court system. Once this Bill is enacted extra activity will be generated in the Circuit Court and the High Court. Indeed it may be necessary to extend the number of sittings in those courts and allocate extra resources to deal with these matters. Fine Gael have sought by way of amendment to ensure that decisions are not delayed and that action is taken promptly.
The provisions in the Bill dealing with the powers of enforcement are inadequate. The Competition Authority will be given great powers of investigation but not the power of enforcement. I will deal with that issue later. Access to justice is very important and, accordingly, I welcome the amendment.
I regret that the Minister in bringing forward the amendment sought to defer its implementation. As Deputy Taylor said, we will have to wait a long time before a consistent number of judicial decisions is established. It is my understanding that when jurisdiction lay with the High Court the courts here borrowed very heavily from the corpus of decisions reached in the European context. I cannot see any reason why we should defer the implementation of the concession the Minister made on Committee Stage. The Circuit Court is the appropriate court to hear the bulk of cases. The major players in any event will go to the High Court ab initio.
I fail to see why people with small claims cannot be allowed access to the District Court with the exclusions listed in the amendment tabled originally by Deputy Taylor on Committee Stage concerning either a declaration or injunctive relief. The amendment represents an improvement and will be welcomed.
I am glad the amendment has been welcomed. I note the view that we should try to bring subsection (2) (b) into effect as soon as possible. I will do so as soon as possible as there would be no point in having such a provision if one was not going to use it as soon as one reasonably could. I will certainly endeavour to do so as soon as feasible.
Amendment agreed to.
Debate adjourned.
Sitting suspended at 6.30 p.m. and rsumed at 7 p.m.