Amendment No. 18 arises out of committee proceedings.
Competition and Consumer Protection Bill 2014: Report Stage (Resumed)
I move amendment No. 18:
In page 46, between lines 28 and 29, to insert the following:
“Amendment of section 6 of Act of 2002
49. Section 6 of the Act of 2002 is amended by substituting the following subsection for subsection (7):
This proposed amendment changes the definition of competing undertakings in section 6(7) of the Competition Act 2002 by removing references to the applicable market and linking the concept to the provision of goods or services to the same purchaser or purchasers instead.
What is that in English?
It is the definition of a grocery undertaking.
Amendment agreed to.
Amendment No. 19 arises out of committee proceedings.
I move amendment No. 19:
In page 55, between lines 31 and 32, to insert the following:
“Amendment of section 50 of Act of 2002
72. Section 50 of the Act of 2002 is amended—
(a) in subsection (1), by deleting “and in good faith”, and
(b) in subsection (3), by deleting “and in good faith”.”.
Amendment agreed to.
Amendment No. 20 arises out of committee proceedings.
I move amendment No. 20:
In page 56, line 21, to delete “prevalent” and substitute “present”.
We mentioned this on Committee Stage. There is a concern here. The issue is one of diversity. One of the main points of good media policy is to ensure proper diversity within the media and that media reflect diversity. I ask the Minister to accept this amendment.
Having considered Deputy Tóibín's explanation of this amendment on Committee Stage, I reviewed it in more detail but I am still not minded to accept the amendment to the definition of diversity of content, which is taken in its entirety from the advisory group on media mergers' report.
To do so would change the meaning of the definition as "present" is more absolute than "prevalent" and it would make the proper measure of diversity extremely complex. The backdrop to the situation is that a range of things define diversity of content and diversity of ownership. This is about striking a balance in the decision to make sure that where a merger is under consideration, there are criteria against which it can be judged. The view is that the way in which the media mergers report set this out in the first instance when it defined diversity of content was in the context of balancing, which is required in such a decision, whereas what Deputy Tóibín is seeking to do is effectively say that virtually every cultural identity that is present must in some way be reflected in a decision of this nature on a merger. In practical terms that would make it very difficult and on that basis I cannot accept the amendment.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Amendments Nos. 21 to 24, inclusive, may be discussed together.
I move amendment No. 21:
In page 76, between lines 3 and 4, to insert the following:
“(2) The Minister for Communications, Energy and Natural Resources may, from time to time, following consultation with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate, prepare and make guidelines on the manner in which he or she shall carry out his or her functions under section 28H(2), including in particular, the factors he or she shall take into account in considering whether market conditions have substantially changed and, if they have so changed, the manner in which he or she shall review the conditions contained in a determination.”.
The amendment to section 73 introduces provisions under section 28L to enable the Minister for Communications, Energy and Natural Resources to prepare and make guidelines following consultations when he or she is considering whether market conditions have substantially changed and the manner in which he or she shall review the conditions contained in any determination made in respect of a media merger. The three subsequent amendments are consequential on this new insertion.
Reference is made to “such other persons as he or she considers appropriate”. Is there a listing from which those persons will be selected or is it up to the Minister of the day to decide who in his or her view is considered appropriate? Will they be people who hold licences in the sector or have an influence in the sector? Is there a mechanism to ensure transparency and accountability in terms of consultation with “such other persons as he or she considers appropriate”?
The Minister will have consultations with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate. Obviously, there is some discretion for the Minister but the purpose of the measure is to allow him or her to carry out his or her function under the Bill, which is to consider media mergers that might not be in the public interest. Clearly, if he or she is developing guidelines, he or she will want to embrace those who have a view. Obviously, such consultations would be held by way of invitations of interest in making such guidelines.
Where is the public element of the requirement? Is it attached to the regulation?
We are giving the power to the Minister to prepare and make guidelines. We provide for consultation. It is not in the nature of consultation to list who should be able to get involved. This is a public consultation in respect of guidelines that are in the public interest. The Minister will consult widely. It is not a case of giving a group other than the Broadcasting Authority of Ireland preferential access by listing it in legislation. The approach being taken is to provide the Minister with the authority to develop such guidelines, which is appropriate. If one started to list individuals who ought to be consulted, one would give them an inside track and one would in some way disengage from those whom one does not list. The approach being taken is the proper one.
My concern is that in the absence of a list some people will have an inside track. A Minister of any Government might have a preference as to who gets selected for consultation. A Minister might owe a political favour to a person who owns a broadcasting licence and might give him or her precedence over someone else. If the Minister could point me to the reference to the public nature of the consultation, he would assuage many of my concerns.
An interesting point has been raised. Could the Minister outline the possible outcome he would expect the Minister for Communications, Energy and Natural Resources to seek in such circumstances?
The circumstances involve the Minister considering market conditions that have substantially changed and the manner in which he or she will review the conditions contained in the determination made in respect of a media merger. If he or she is looking at a media merger in the context of an increased prevalence of online communication, social media or whatever else and he or she feels there is a need to look afresh at the perspective within which a media merger might be considered, he or she must work off guidelines. Rather than the Minister making up guidelines without consultation, what we propose is that such guidelines as he or she would institute as a context for such decisions would be subject to public consultation.
The way in which that would happen is that draft guidelines would be introduced by the Minister and then there would be an opportunity for people to comment and make submissions. The draft guidelines would be made publicly available and then consultation would ensue. What Deputy Calleary is seeking is an assurance that there will be a list but if one has a list it must be exhaustive. One cannot leave people out. The intention is not to give an inside track in the context of such guidelines. That is the approach being taken. The Bill provides that before making guidelines the Minister shall publish on the Internet a draft of the proposed guidelines and allow persons 30 working days from the date of publication to make written representations to him or her on the draft. Having considered the representations received, he or she may make the guidelines with or without modification. This is not, as Deputy Calleary fears, a way to ensure a cosy draft set of guidelines that would meet the needs of one or other party in contention; it is to provide a context within which decisions can be made. I hope the provision on page 76 meets Deputy Calleary’s concern.
Yes.
Amendment put and declared carried.
I move amendment No. 22:
In page 76, line 4, to delete “(2) Before” and substitute “(3) Before”.
Amendment agreed to.
I move amendment No. 23:
In page 76, line 4, to delete “subsection (1)” and substitute “subsection (1) or (2)”.
Amendment agreed to.
I move amendment No. 24:
In page 76, line 12, to delete “(3) The” and substitute “(4) The”.
Amendment agreed to.
I move amendment No. 25:
In page 77, to delete lines 29 to 35 and substitute the following:
“(5) In this section—
‘confidential information’ includes—
(a) information that is expressed by the undertakings involved in the merger or acquisition to be confidential either as regards particular information or as regards information of a particular class or description, and
(b) submissions of a commercially sensitive nature made by any other person;
‘public body’ means—
(a) a Department of State,
(b) the Garda Síochána,
(c) the Permanent Defence Force within the meaning of the Defence Act 1954,
(d) a local authority within the meaning of the Local Government Act 2001, or
(e) a body established by or under any enactment or charter other than the Companies Acts;
‘submissions of a commercially sensitive nature’ means submissions the disclosure of which could reasonably be expected to—
(a) substantially and materially prejudice the commercial or industrial interests of—
(i) the person who made the submission,
(ii) the person to whom the submission relates, or
(iii) a class of persons in which a person referred to in subparagraph (i) or (ii) falls,
(b) substantially prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation, or
(c) substantially prejudice the financial position of the State or a public body.”.
These amendments are intended to provide greater legal certainty by explaining what is regarded as confidential information and by providing definitions of the terms "public body" and "submissions of a commercially sensitive nature". These terms are used in the provisions of section 28N, as inserted, on the sharing of information and documents and the disclosure of confidential information.
Amendment agreed to.
Amendments Nos. 26 and 28 are related and will be discussed together.
I move amendment No. 26:
In page 78, to delete line 16 and substitute the following:
“(d) by inserting the following definition:
“ ‘relevant statutory instruments’ means the statutory instruments for the time being in force specified in Schedule 9;”,
(e) in the definition of “relevant statutory provisions”—
(i) by inserting the following paragraph after paragraph (a):
“(aa) relevant statutory instruments;”,
(ii) by substituting “(j) the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013);” for
“(i) the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013);”, and
(iii) by inserting the following paragraph after paragraph (j):
“(k) the European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014 (S.I. No. 250 of 2014).”,”.
Section 2 and the schedules of the Consumer Protection Act 2007 are being updated to reflect the establishment of the new competition and consumer protection commission and to include references to statutory instruments and so on that have been made since 2007. This has associated consequential amendments with an insertion of the defining of relevant statutory provisions, an expansion of the definition of relevant statutory provisions in section 74 to include relevant statutory instruments and the insertion of a new section 79 to refer to the new Schedule 9 of the 2007 Act. The other amendments correct a duplication in the sequence of statutory instruments listed under the definition of relevant statutory provisions and update the list to include a related statutory instrument signed by me on 5 June 2014, namely SI 250 of 2014, the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2014. This statutory instrument is recent and relates to people trading outside their premises and consumers making an agreement not at the normal point of sale. This can happen online, over the phone, by cold calling and so on.
Amendment No. 28 is a technical assembly of the relevant statutory instruments in order that there is a comprehensive list to which to refer.
Amendment agreed to.
I move amendment No. 27:
In page 81, between lines 1 and 2, to insert the following:
“Amendment of section 87 of Act of 2007
78. Section 87 of the Act of 2007 is amended—
(a) in subsection (1), by deleting “and in good faith”, and
(b) in subsection (3), by deleting “and in good faith”.”.
Amendment agreed to.
I move amendment No. 28:
In page 81, between lines 5 and 6, to insert the following:
“Insertion of Schedule 9 to Act of 2007
79. The Act of 2007 is amended by inserting the following Schedule after Schedule 8:
“SCHEDULE 9
Section 2
Relevant Statutory Instrument
|
Number and Year (1) |
Citation (2) |
|
S.I. No. 63 of 2005 |
European Communities (Distance Marketing of Consumer Financial Services) (Amendment) Regulations 2005 |
|
S.I. No. 376 of 2007 |
European Communities (Labelling, Presentation and Advertising of Foodstuffs) (Amendment) Regulations 2007 |
|
S.I. No. 587 of 2007 |
European Communities (Plastics and other materials) (Contact with food) Regulations 2007 |
|
S.I. No. 774 of 2007 |
European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 |
|
S.I. No. 808 of 2007 |
European Communities (Labelling, Presentation and Advertising of Foodstuffs) (Amendment) (No. 2) Regulations 2007 |
|
S.I. No. 316 of 2008 |
European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2008 |
|
S.I. No. 407 of 2008 |
European Communities (Machinery) Regulations 2008 |
|
S.I. No. 424 of 2008 |
European Communities (Labelling, Presentation and Advertising of Foodstuffs) (Amendment) Regulations 2008 |
|
S.I. No. 566 of 2008 |
European Communities (Prepacked Products) Regulations 2008 |
|
S.I. No. 61 of 2009 |
European Communities (Labelling, Presentation and Advertising of Foodstuffs) (Amendment) Regulations 2009 |
|
S.I. No. 88 of 2009 |
European Communities (Plastics and other materials) (Contact with food) (Amendment) Regulations 2009 |
|
S.I. No. 383 of 2009 |
European Communities (Payment Services) Regulations 2009 |
|
S.I. No. 463 of 2009 |
European Communities (Plastics and other materials) (Contact with food) (Amendment) (No. 2) Regulations 2009 |
|
S.I. No. 1 of 2010 |
European Communities (Placing on the Market of Pyrotechnic Articles) Regulations 2010 |
|
S.I. No. 281 of 2010 |
European Communities (Consumer Credit Agreements) Regulations 2010 |
|
S.I. No. 416 of 2010 |
European Communities (Placing on the Market of Pyrotechnic Articles) (Amendment) Regulations 2010 |
|
S.I. No. 555 of 2010 |
European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010 |
|
S.I. No. 105 of 2011 |
European Communities (Plastics and other materials) (Contact with Foodstuffs) (Amendment) Regulations 2011 |
|
S.I. No. 310 of 2011 |
European Communities (Machinery) (Amendment) Regulations 2011 |
|
S.I. No. 333 of 2011 |
European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 |
|
S.I. No. 337 of 2011 |
European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) Regulations 2011 |
|
S.I. No. 485 of 2012 |
European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2012 |
|
S.I. No. 13 of 2013 |
European Communities (Safety of Toys) (Amendment) Regulations 2013 |
|
S.I. No. 122 of 2013 |
European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2013 |
|
S.I. No. 160 of 2013 |
European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2013 |
|
S.I. No. 200 of 2013 |
European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) (No. 2) Regulations 2013 |
|
S.I. No. 373 of 2013 |
European Communities (Placing on the Market of Pyrotechnic Articles) (Amendment) Regulations 2013 |
|
S.I. No. 381 of 2013 |
European Communities (Labelling, Presentation and Advertising of Foodstuffs) (Amendment) Regulations 2013 |
Amendment agreed to.
Amendments Nos. 29 to 32, inclusive, are related and will be discussed together.
I move amendment No. 29:
In page 82, between lines 8 and 9, to insert the following:
“(b) garden plants,”.
The Minister has adapted this to one of his own amendments. We discussed this area on Committee Stage. The list of goods outlined under the grocery goods undertakings in Chapter 5 should include garden plants as it is an area of huge growth. This issue relates to small suppliers whose lack of protection in legislation is used against them commercially and I welcome the Minister's willingness to accept a version of the amendment.
Garden plants are a staple of the retail sector in recent years. This area raises again the issue of what constitutes a grocery good in 2014 and my later amendment will seek to widen this further.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 82, line 9, to delete “and”.
Deputies Calleary and Tóibín raised the issue of including garden plants in the definition of grocery goods on Committee Stage due to claims that serious issues affect producers in this market. Having considered the matter, I am prepared to accept the amendment with the addition of the words "garden plant bulbs". I thank the Deputies for raising this issue. However, the inclusion of garden plants and bulbs under the regulations means a new cohort of businesses, such as large garden centres and DIY retailers, suppliers and wholesalers now come within the definition of the grocery goods undertakings. These businesses had not, to date, engaged in any consultation process on the proposed measures to ascertain the extent of any problems with these products. To this end, a public consultation process will have to be undertaken but, as I do not wish to see any delay in the promulgation of regulations under this proposed legislation, a separate amendment, amendment No. 73, is being proposed to allow me as Minister specify the types of grocery goods that may be included in any set of regulations. This would allow relevant businesses to engage in a public consultation process on this issue in parallel with regulations that are being made for other classes of grocery goods.
The second element of Deputy Tóibín's proposed amendment is extremely wide and could cover everything from greeting cards to petrol to electrical equipment. Even occasional items that are offered for sale by a grocery goods undertaking would be covered. For the purposes of this Bill the term "grocery goods" means any food or drink that is intended to be sold for human consumption and can include any substance or thing sold or represented for use as food or drink for human consumption and any substance or thing sold or represented for use as an additive, ingredient or processing aid in the preparation or production of food or drink for human consumption. It also includes intoxicating liquors, household cleaning products and toiletries. We are adding garden plants and garden plant bulbs today.
Although it is clear that many relevant goods undertakings may sell other products along with grocery goods as part of their service to consumers, it is worth recalling that the inclusion of the products proposed by Deputy Tóibín would mean a new cohort of businesses such as retailers, suppliers and wholesalers could now come within the definition of "relevant grocery undertakings". None of these businesses has engaged in the public consultation process on this issue as the discussions centred on the traditional definition of grocery goods, which did not include this catch-all element. There would thus be an extra and unforeseen administrative burden imposed on such businesses without prior consultation.
The UK code does not include such a catch-all provision on the goods it covers and my Department is unaware of such a provision in the code or measures of any other state. The addition of an unspecified range of products, for which there is no evidence of any problem, is neither appropriate nor proportionate. In view of this I am not in a position to accept the second part of Deputy Tóibín's amendment.
Amendment agreed to.
I move amendment No. 31:
In page 82, line 10, to delete “toiletries;” and substitute the following:
“toiletries, and
(d) garden plants and garden plant bulbs;”.
Amendment agreed to.
I move amendment No. 32:
In page 82, between lines 10 and 11, to insert the following:
“(d) garden plants, and
(e) all other goods sold in grocery goods undertakings;”.
Amendment put and declared lost.
Amendments Nos. 33 and 36 are related and will be discussed together.
I move amendment No. 33:
In page 82, line 12, to delete “supply or distribution” and substitute “supply, distribution, wholesale or retail”.
These technical amendments refer to the definitions of "grocery goods undertaking" and "relevant grocery goods undertaking", respectively. They are intended to ensure there is consistency in the terminology used.
Amendment agreed to.
I move amendment No. 34:
In page 82, line 12, after "goods," to insert "newspaper and magazine distribution companies".
A number of organisations have made representations to me on how they are treated under the legislation. A large number of newsagents throughout the country feel the issue of newspapers and magazines should be included. One of their major fears is that an uneven balance of power exists between some newspaper distribution companies and newsagents. In their experience these oligopolies exert unfair leverage when trading with them because there are only two suppliers or distributors while there are hundreds of newsagents. In their experience they have had no option but to accept whatever has been dictated to them. The amendment was submitted in an effort to even out the power structure in the market.
We are regulating for a concern that large retail outlets have excessive power which has resulted in a number of sharp practices with regard to suppliers, about which many of us have heard anecdotal stories. We are not trying to institute in this legislation new provisions for every sector; we are dealing with this particular sector. Under existing competition law there is capacity for the Competition Authority to investigate abuse by a dominant supplier in the marketplace. I am not trying to replace the general remit of competition law as it applies throughout most sectors. Most sectors have big and small players and the Competition Authority has the power to pursue any practices by dominant players which represent abuse of their dominance. This is the approach which should be taken if there are cases of such abuses in the distribution of newspapers and magazines. We are dealing with a specific issue in the grocery goods sector, on which a commitment was made in the programme for Government, where there is a fear because of very dominant retail players and small suppliers. There is concern about some activities, which are listed, such a lack of contracts and certain provisions which have not been properly applied. I am not seeking to usurp existing competition law which applies in every other sector. This legislation is targeted at a particular problem in the grocery sector. I am not willing to extend it to subsectors which have nothing to do with the primary target of the legislation.
There is hardly a grocery retail outlet which does not sell newspapers so it is a closely related product. My understanding is the newsagents' organisation went to the Competition Authority to seek redress because of what it felt was an imbalance. It did not have satisfaction and was forced to go to court, which added a large cost to a representative organisation which does not have massive resources. This is why newsagents' organisations throughout the State have sought, through their representative organisation, to have this amendment made.
I do not accept this is how we should go. The issue regarding groceries has long been building as a concern, and there have been many practices such as "hello money" and special promotions which have left suppliers exposed. There is also an issue with regard to how wastage and forecasting are used by large retailers to militate against the interests of suppliers. This set of problems is unique to the sector and we are seeking to address it by having written contracts and making general regulations in respect of the contracts. There has been lengthy consultation on this. In the first instance we hoped to have voluntary codes, but this proved impossible, so we are moving to a statutory approach, which is the only way we can achieve this. We will require retention of evidence of these contracts and compliance statements. We will give power to the Competition Authority to serve notice of malpractice in the sector. I do not propose to extend it beyond the grocery sector into any number of cases which could be made on individual experiences. The role to investigate these individual experiences rests with the Competition Authority and the new competition and consumer commission.
The Competition Authority has the power not only to take enforcement action but also to examine conditions of competition in any particular sector. It has this right so if it feels there is public concern about newspapers and magazines or another sector it has the power to have the necessary studies undertaken to examine what is happening in the sector. This is the approach we should continue to operate. I understand that a case can be made with regard to the small dealing with the large but it is not the approach we propose here. This is a specific targeted intervention to deal with a sector where, because of the sheer size of many of these retailers compared to the suppliers, this is the approach which we consider is appropriate.
As a follow-on to Deputy Tóibín's comments, what we knew as the newsagent is becoming more and more the convenience store, which falls under the groceries umbrella. Big multiple stores such as Tesco, are scaling down to convenience-type stores in certain locations, particularly in cities which have a passing population for convenience purposes. The blurring of the types of goods which appear in these types of stores suggest the types of products with which the newsagents was traditionally associated are now common convenience store items, which include groceries. This is the 21st century rather than the first half of the 20th century.
This is special legislation introduced to address a specific problem in the grocery sector which all parties, in Oireachtas committees, have examined. The legislation has a long provenance coming from work done, much of it driven by concerns about primary food suppliers of one type or another. I do not seek to rewrite completely the competition legislation. Our legislation is derived from articles 85 and 86 of the original European Union treaties which are against collusion, price-fixing and abuse of a dominant power. These remain the powers through which we seek to evolve flexibly the management of the marketplace. A considerable new obligation is being proposed and it requires the existence of written contracts, supervision of these contracts and having compliance officers. It requires a set of significant new requirements for very large grocery undertakings, namely those of €50 million and over. We seek to solve in a proportionate way a problem which has been a public interest concern. We do not seek to reinvent our competition legislation.
To graft this legislation, which is designed for a very specific problem, on to every sector is not the approach in the programme for Government nor do I feel it is appropriate. This is targeting a particular set of problems. If it transpires that the Competition Authority identifies problems in other sectors, it can, of course, use its powers and can, obviously, ultimately come back here to the Oireachtas with reports outlining that there are difficulties in the enforcement of the existing legislation. As the sectors evolve, obviously, new challenges will come along. That is why I am not keen to stray into other areas. Today it could be newspapers and magazines, and tomorrow it could be another sector and we would suddenly be creating a huge regulatory structure to be imposed. As we will see later on, some people are looking to bringing down the threshold of business on which this sort of structure would be imposed.
I do not believe it is the right way to go. The purpose here is to tackle an issue highlighted by the Oireachtas committee in the previous Dáil under the chairmanship of Deputy Penrose and by the current Oireachtas Joint Committee on Agriculture, Food and Marine under the chairmanship of Deputy Doyle. This is an issue of public concern and that is why we are pursuing it in this way.
Amendment put and declared lost.
I move amendment No. 35:
In page 82, line 26, to delete “consideration or inducement” and substitute “consideration, allowance or inducement”.
This is a technical amendment to the definition of payment to include allowance as a means of payment.
Amendment agreed to.
I move amendment No. 36:
In page 82, line 33, to delete “distribution or retail” and substitute “distribution, wholesale or retail”.
Amendment agreed to.
I move amendment No. 37:
In page 82, line 35, to delete “€50 million” and substitute “€10 million”.
A large representative group, the IFA, made representations to all the political parties. The idea was that many of the products in the fresh produce sector would not come into the remit of the particular floor the Government had envisaged resulting in the necessity to substitute €10 million for €50 million for the annual turnover figure. This makes sense, as especially in an Irish context it would be more protective of different organisations.
We had a long discussion on this on Committee Stage. There is no sense in us introducing this legislation and restricting its impact to the very biggest of multinational companies. The Minister has spoken today about the difficulties that lie in the relationships between very small - in many cases independent - producers and large multiples. The Bill goes some way to dealing with that, although there are issues we will discuss later. If we restrict the turnover to €50 million, many people will be protected from this legislation. Its potential benefits will be considerably weakened with such a high turnover figure.
Deputies Calleary and Tóibín have again called for a reduction in the turnover threshold specified in the Bill for a qualifying relevant grocery goods undertaking from €50 million to €10 million annually. As I set out on Committee Stage, the current threshold has been carefully chosen and I will repeat the main considerations again. First, I want to ensure these provisions are not disproportionate by including a broader swathe of processors, suppliers and retailers which are not regarded in major players in the national grocery goods sector. At the level of €50 million, we are bringing in 41 major retailers. The backdrop to this was that there are very large retailers which are exercising unfair power and the result is that they are imposing unfair contract conditions.
Many people advocated that we follow the UK approach where only 11 retailers covered as it chose a much higher threshold than we did. In the UK the threshold for qualifying designated retailers for the purpose of the Groceries (Supply Chain Practices) Market Investigation Order 2009 is any retailer with a turnover exceeding £1 billion with respect to retail supply of groceries in the UK. The €50 million we are choosing is based on an extrapolation of the qualifying turnovers under the UK legislation on a population basis.
We are also going beyond the UK legislation in including suppliers meaning that we are embracing, as an area where we will provide regulation of contracts, small retail outlets that feel a large supplier is treating them unfairly. No such protection is contained in the UK provisions. We are going beyond what is done elsewhere.
Moving the threshold to €10 million would bring more than 2,500 operations into the requirements to set out in writing, have compliance officers and all the rest of it, which we do not feel is proportionate. The sort of issue that has given rise to public concern in the Oireachtas Joint Committee on Jobs, Enterprise and Innovation, and the Oireachtas Joint Committee on Agriculture, Food and Marine has been around the really large players in the sector.
The other significance of €50 million is that it is the threshold that the European Commission uses for distinguishing between small and medium-sized enterprises, and large enterprises. I believe that is appropriate.
We are trying to deal with a specific set of problems arising from the very significant market power of particular operators in the retail sector. We are trying to ensure fair sets of practices are applied to those who have to deal with them. We are not trying to go beyond the origin of this public concern. I do not want to be disproportionate about the approach being taken here which is why the €50 million is appropriate. Relative to the UK we are setting the right threshold. We are using the EU definition of SMEs.
This has had a very long history as the Deputies opposite know. Many people are saying on one side that the €50 million should be pushed up to €100 million and there are many people on the other side who say the €50 million should be brought down. In the consultation this emerged as a via media. As I have explained, it has been defined in a way that is much more in the middle compared with the UK whose provisions were extolled by those who were saying we should move to a UK-style approach in this area. We are striking a reasonable balance. I am not disposed to accept the amendment.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
As amendments Nos. 39 to 42, inclusive, are consequential on amendment No. 38, amendments Nos. 38 to 42, inclusive, may be discussed together by agreement.
I move amendment No. 38:
In page 83, to delete lines 2 and 3.
Again, this issue was raised by Deputy Tóibín on Committee Stage. As indicated then, I propose this amendment to clarify that there is no intention to include small franchise retailers in the category of relevant grocery goods undertaking. The majority of such small franchisees have a threshold of less than €5 million per annum. The renumbering of subsequent indents is consequential on this removal.
I welcome the Minister's clarification in this regard because it caused a great deal of fear in small businesses that were part of small organisations that did not have particular muscle or power within the system. The Minister's agreement in this regard will be greatly appreciated.
Amendment agreed to.
I move amendment No. 39:
In page 83, line 4, to delete “(d) if” and substitute “(c) if”.
Amendment agreed to.
I move amendment No. 40:
In page 83, line 8, to delete “(e) if” and substitute “(d) if”.
Amendment agreed to.
I move amendment No. 41:
In page 83, line 12, to delete “(f) a” and substitute “(e) a”.
Amendment agreed to.
I move amendment No. 42:
In page 83, line 14, to delete “(g) if” and substitute “(f) if”.
Amendment agreed to.
I move amendment No. 43:
In page 83, lines 19 and 20, to delete “or indirectly through franchise arrangements,”.
Am I to take it that this amendment is defunct on the basis of the passage of amendment No. 38 and so on? The purpose of this amendment was to delete arrangements that dealt with franchises but as I believe the Minister has already conceded that point, I take it that this amendment is defunct.
As there are no wider issues in amendment No. 43, I believe I have dealt with the concerns raised by the Deputy in this regard.
Amendment, by leave, withdrawn.
Amendments Nos. 44 to 48, inclusive, are related. Amendments Nos. 47 and 48 are consequential on amendment No. 46, therefore, amendments Nos. 44 to 48, inclusive, may be discussed together agreement.
I move amendment No. 44:
In page 83, between lines 33 and 34, to insert the following:
“(a) the importance to and impact on the economic viability and sustainability of primary producers of decisions made at processing and/or retailing level,”.
Again, I acknowledge the Minister has tabled a similar amendment. Members had a good discussion on Committee Stage on this issue, which concerns the importance of placing the producers in the legislation and on an equal footing, in terms of their importance, with the wholesalers and retailers. I welcome that the Minister has done this. A very good event was held last night at which many small food producers involved in Good Food Ireland came together to show their wares. Many colleagues attended and enjoyed those wares and consequently, I am glad to see the Minister giving some protection to those producers. However, he has not given enough, which is a subject to which Members will turn shortly. Nevertheless, I welcome that the Minister is willing to at least put into the legislation the language and the spirit of protection of small producers. What this actually means will be a matter for discussion a little later in this debate.
The wording I have chosen is what I consider to be the appropriate one. It gives the context within which consideration should be given in the framing of regulations. Deputy Calleary's version goes too far in seeking to be too prescriptive. Consequently, I cannot accept the wording he has offered. However, the wording I have drafted as an alternative hopefully meets the concern raised by the Deputy.
Amendment, by leave, withdrawn.
I move amendment No. 45:
In page 84, line 1, to delete “freely negotiated contractual arrangements” and substitute “maintaining freedom of contract”.
This is a technical amendment.
Amendment agreed to.
I move amendment No. 46:
In page 84, between lines 4 and 5, to insert the following:
“(f) the economic importance to the State of the production, supply, distribution, wholesale and retail sectors in respect of grocery goods,”.
Amendment agreed to.
I move amendment No. 47:
In page 84, line 5, to delete “(f) the” and substitute “(g) the”.
Amendment agreed to.
I move amendment No. 48:
In page 84, line 8, to delete “(g) the” and substitute “(h) the”.
Amendment agreed to.
Amendments Nos. 49 and 74 are related and may be discussed together by agreement.
I move amendment No. 49:
In page 84, line 11, to delete “persons” and substitute “persons (including relevant grocery goods undertakings and other grocery goods undertakings)”.
This is a technical amendments to ensure that relevant grocery goods undertakings and other grocery goods undertakings will be consulted when regulations and guidelines are being drawn up.
Amendment agreed to.
Amendments Nos. 50 and 53 are related and may be discussed together by agreement.
I move amendment No. 50:
In page 84, between lines 14 and 15, to insert the following:
“(2) All retailers defined as relevant grocery goods undertakings shall disclose their profits in the Irish market.”.
Members had a very long discussion on this issue on Committee Stage and the Minister earlier mentioned the manner in which some large multinationals dance around in terms of their responsibilities regarding this legislation and also in respect of their moral responsibilities in the manner in which they treat suppliers and small suppliers in particular. The Minister has made some changes in this regard on Report Stage but for as long as there is no knowledge within the Irish market of the profit and margin levels of large retail organisations, one is shooting in the dark, which is what this legislation is doing. I cannot think of another situation in which organisations that provide an essential service, that is, food, can so do without being obliged to show how much people are paying properly for that food, how their business model works and what profit level they are taking from this market. At present, it is necessary to extrapolate how they are doing in the Irish market from their annual accounts published in the United Kingdom. The price of food on this island is higher than that of our neighbour. Depending on currency fluctuations, people regularly travel to the Six Counties to get the basic goods, yet there appears to be a queue of people willing to enter the Irish market to provide food because it appears to offer rich pickings for large traders and large grocery operations.
The fact that one cannot get this information also allows them to drive a coach and four through this legislation, because they have huge resources and are using the lacunae in it to offer products at below cost and as loss leaders. They can afford to do this because of the profits they are taking on other products. They are abusing Ireland's public health laws by offering products, that is alcohol, that are harmful. They use these products as an enticement to get people into their stores to buy other products they are selling at prices far above the margin and above cost to balance out their ability to sell stuff at below cost. They can do all this because there is no scrutiny or control over the profit level they are taking from the Irish market. This lacuna is not freely available to them in any other market.
It is time that Ireland stood up to these operators.
Hear, hear.
They have been allowed to run ramshod and before the Minister says it, I acknowledge my party allowed it to happen. However, I also point out that Fine Gael and the Labour Party were in power at a local government level, where these operators have been allowed to run ramshod through the planning laws for long enough. This is a major issue in respect of competition, the supplier relationship and with regard to public health. For as long as Members kowtow to them, they will give this Parliament and this country the two fingers.
In many ways, the Minister's job is to manage the area of enterprise, innovation and jobs. I cannot think of another manager who would state that he or she did not wish to know a significant piece of information that would be a building block to that person's ability to manage the sector. It is inconceivable that anybody would shut the door and declare he or she did not wish to know.
The profitability of a particular business in Ireland is an issue of huge importance on a range of levels. It is very difficult for a government to be able to plan properly for taxation or for competition, or to plan properly to ensure there is no abuse of power unless this information is known. Resigning oneself to blissful ignorance on this vital issue is not good enough. I believe that when one takes a profit out of the country, one has a responsibility to that country. There is a need to move towards a business model of transparency, in which ethical business is based on the fact that the people engaging with that business know exactly what is happening to their euro and what profits are being made.
Our ability to rate businesses progressively is severely hampered by the absence of information on the profits being made by large retail companies. Indigenous retailers located on street corners are struggling to keep the shutters up and the lights on, yet they are rated at a level similar to some of the largest retailers, including Tesco, which are taking substantial profits out of the country.
Sinn Féin strongly supports the concept of progressive rates. The majority of organisations representing retailers that appeared before the Joint Committee on Jobs, Enterprise and Innovation stated that rates must be applied progressively. It will be impossible to introduce a progressive rate until we ascertain how much profits various companies are making. Access to this critical information will be key to the Minister's ability to make decisions. In that context, it is impossible to comprehend his statement that he does not want to know.
We have reached an important point in the legislation because this issue boils down to whether we know what we are doing. These amendments relate to transparency regarding the food and household goods bought by families and individuals. We need to know what are the sales of the large organisations in question and what costs they incur when they buy the goods they sell. The power of these companies over their suppliers is so great that they are, in effect, cash and purchasing managers, rather than companies providing a distribution service to customers. Their customers come by car or other means of conveyance and engage in a form of self-distribution by taking home the household goods and services they purchase. It is of paramount importance, therefore, that some fairness applies in respect of the costs and profits of these companies.
Ascertaining who owns the operations of the large retail companies, what are their gross profit margins and how much cash they control would be a form of quality control in this sector of the economy. Whereas these companies are paid by their customers upfront at the tills, they do not pay their suppliers for two or three months, which means they have a mountain of cash in their operations. Transparency is needed and now is the time to provide for it. We have arrived at a crossroads and it is time to be assertive rather than beholden to the companies in question. The only reason large retail operations have located here is that there is good money to be made.
Amendments Nos. 50 and 53 seek to have retailers, defined as relevant grocery goods undertakings, to be obliged to disclose their profits in the Irish market. The proposed amendments are stand-alone provisions, which are not related to the regulations that I, as Minister, may make to regulate certain practices in the grocery goods sector. The backdrop to this issue is a particular problem in the supply chain.
As I have stated on previous occasions, companies operating in Ireland are free to establish and organise themselves in the most suitable forms to promote and run their businesses, provided they comply fully with relevant national and European Union legislation, including relevant legislation on the content of their financial statements. The requirements regarding the preparation and publication of the financial statements of limited companies and groups are determined by the first, fourth and seventh EU company law directives, Regulation (EC) No. 1606/2002 and international reporting standards adopted by the European Union under its provisions. These requirements are largely reflected in the Companies Act 1963, Companies (Amendment) Act 1986 and European Communities (Companies: Group Accounts) Regulation 1992, as amended. Equivalent requirements apply across the European Union. The fourth and seventh directives have been replaced by a new accounting directive 2013/34/EU, which is required to be transposed by July 2015. The requirements concerning the accounts of unlimited companies are governed by domestic legislation.
The extent to which profits are or are not disclosed is of general application and is not determined on the basis of the sector in which a company or group of companies operate. The requirements under company law are essentially the same for companies or groups that operate supermarkets as they are for companies or groups active in any other sector of the economy. I consider that a disclosure regime targeting a specific sector would be viewed as disproportionate and discriminatory and would have negative consequences in terms of business costs and in attracting foreign direct investment. For these reasons, I am not in a position to accept the amendments.
I have listened to the arguments advanced by the Deputies. Deputy Calleary claims that abuse of our public health laws is taking place. Every grocery undertaking must comply with our public health laws and there is no question that they do not all do so. We do not have a ban on loss leaders, which are a normal feature of competition everywhere. There is nothing wrong with offering loss leaders and sales are common in all business sectors. It is normal that sales are offered and consumers benefit from them.
We will have free bets next.
The Deputies are forgetting the objective we are seeking to achieve in the Bill, namely, fair treatment for the suppliers in the supply chain. We are setting out contract terms that will protect suppliers and it is not true, as Deputy Calleary alleges, that this is a waste of time if we do not know the profitability of different retailers. The motivation behind the legislation is to ensure abusive terms are not built into contracts with suppliers. A separate discussion will take place on whether the Government should adopt a particular approach to alcohol. We cannot pretend that supermarkets are obliged to make public policy as this is a matter for the Oireachtas.
Competition law addresses the abuse of dominance, price fixing, collusion and similar activities as opposed to the profits of individual companies. The description I offered of company law relates to general provisions. We enforce a substantial amount of competition law and it is not necessary to introduce particular sectoral approaches to profit reporting to deal with competition and fair contracts.
Deputy Tóibín raises other issues and wants to introduce a rating system that amounts to an additional profit tax for companies. I do not support such an approach. We have been steadfast in defending an approach to our laws on corporation profits that provides for certainty in respect of the obligations companies face. This policy has served us well.
I do not agree with the argument made by Deputy Mathews that to regulate the supply chain and the manner in which large retailers deal with their suppliers, we must have knowledge of their ownership, control, financial arrangements, business models and this, that and the other. Our objective in this regard is to provide that large retailers treat their suppliers fairly in the contracts into which they enter. While the Deputy is free to articulate different views on companies, he should not forget the objective of the legislation, namely, to ensure small suppliers are not abused by retailers, for example, by being compelled to pay what is known as "hello money" or pay for promotions.
Our approach is effective. Obviously, we must introduce the regulations, but they will deal forensically with the problem we seek to address here, not create a new obligation on a sectoral basis that we would not apply to other sectors.
Public policy must be proportionate. We should look at the issue we are trying to solve and address that issue in a proportionate and forensic way. That is what I am doing here. We are looking at a problem in the supply chain and we are addressing it in a fair and proportionate way.
The Minister tried to separate the notion of putting a restriction on grocery operators from the Bill, which contains ten pages devoted to the control and management of grocery goods, and that immediately puts them in a different category. They provide a basic service and there is certainty that many of the operators in the market are providing that service at a significant profit. I have no difficulty with one making a profit but if companies are willing to share that information and show how much consumers are paying for basic commodities, they are different from other companies.
On the public health issue, loss leaders are acceptable, although not when it is alcohol. We had this discussion at Committee Stage. The Minister is three and a half years in office and we are still waiting for legislation on alcohol sales, particularly off-sales. Nothing has been done on it and this is an opportunity for us to do something. I would have hoped that in the intervening month since Committee Stage the Minister might have taken soundings from the Minister for Health, Deputy Reilly and, although he has been busy, the Minister of State at the Department of Health, Deputy White, on the potential of the Bill to send a signal that the Government is serious about tackling the alcohol problem. In particular, as the Minister who is bringing in legislation on grocery supplies, Deputy Bruton has a responsibility. It is not good enough for him to wash his hands of the alcohol problem when he is bringing in a Bill that has ten pages about the sale of grocery goods, including reference to alcohol. It is not an issue for the Department of Health. It is not something we should have to wait for when Deputy Bruton has the ability, through the Bill, to send a signal and when he was given an opportunity some time ago to involve the Minister for Health pursuant to the challenge that we put to Deputy Bruton at Committee Stage.
It is relevant to this legislation when companies are using this market to make excessive profits and using those profits to ensure that they will drive a coach and four through every bit of this legislation and to ensure that they have enough well-paid lawyers to get around their responsibilities to the legislation. The Minister states this is legislation to protect suppliers. I am afraid they will not be well protected if they are using their resources to get a coach and four through it.
In World Cup terms, the Minister has an open goal.
I do not agree with the notion that one starts to introduce sectoral policies on companies' accounting practices on the basis of the product they are supplying. We are trying to do a forensic job of dealing with the supplier supply chain here.
Deputy Calleary raises the much wider issue of alcohol abuse in society. There are many dimensions to that which need a broad-based public policy response. Those public policy responses, as I understand it as I do not deal with them on a day-to-day basis and I do not have an expertise in them, deal with looking at advertising, sponsorship, public education, the sort of activities consumers have as alternatives and role models, and they involve, as Deputy Calleary states, the price promotions where alcohol is concerned. The Ministers responsible are looking at a coherent response to that. They will bring forward the appropriate legislation in a coherent way to deal with what is a multifaceted alcohol problem. It is not appropriate for me to dream up public health policy in the context of legislation to deal with competition concerns. The issues of public policy in the health area are rightly the domain of the Minister for Health and those involved on the Joint Committee on Health and Children that is developing appropriate responses, including many Departments - not my own - which have an approach to this.
I understand that an approach on minimum alcohol pricing which has been introduced in Scotland is under consideration. That is being developed, I understand, by the appropriate Minister who must look at its legal viability in terms of EU law. I understand they are steering that legislation along, but it is complex legislation that must be viewed in its own right. It is not for me to pre-empt without proper consultation or appreciation of the legal issues and to agree to a piece of legislation that has not been properly developed. Indeed, Deputy Calleary has not offered a particular piece, but I would not be supporting it anyhow. One needs to have the issue of alcohol abuse dealt with in a coherent way and the Ministers will bring forward that approach.
What we are having here is a discussion about whether we should impose particular profit reporting on particular types of company in Ireland. Such an arbitrary approach should not be a feature of our approach to companies. We should approach this in a balanced and proportionate way. If we have concerns about public policies that are being affected by such companies, we regulate them in the public policy arena, for instance, in public health law or, as we are doing here with groceries, in competition law. It is not a proper approach to business regulation to introduce legislation that applies on an ad hoc basis.
Amendment put and declared lost.
Amendment No. 51 is in Deputy Calleary's name. Amendments Nos. 51, 56 and 72 are related and will be discussed together.
I move amendment No. 51:
In page 84, between lines 14 and 15, to insert the following:
"(2) The Minister, having regard to subsection (1) may, from time to time, give a direction that a retailer shall not sell grocery goods at a price that is less than the net invoice price of the goods.".
The Minister stated today on a number of occasions that the role of the producer and protecting the producer from the dominant relationship is central to this Bill and this is a chance for him to put his money where his mouth is. We had the bizarre situation - the Minister is all in favour of loss leaders - where vegetables were being sold for 5 cent or 6 cent immediately prior to Christmas. We have had the debate on alcohol, and one sees alcohol being sold in an off-licence at crazy prices that bear no relationship to the cost of producing it, when in some cases it is cheaper to buy it from a supermarket than from a wholesaler for many publicans, that is a competition issue, but the Minister is happy enough for that to continue.
If the relationship, in particular, between small suppliers and dominant suppliers is to change and is to be in some way levelled out, then we must be serious about below-cost selling. At present, the practice happens. The dominant providers are demanding it from their producers. They are putting such pressure on producers to provide goods at prices that have no relationship with the production price that many producers end up going out of business, we end up with unemployment and the choice available to consumers is that much less.
I will be calling a vote on this because this is crucial to the Bill which, the Minister states, seeks to protect producers. It is essential for consumers that the greatest possible choice be available to them, particularly in food. It is essential for us to continue to grow the food sector that small producers be given the opportunity to break into the market and be given the right to defend their goods in the face of the attack that is laid on them by large multiples.
If this legislation is in any way true to what it seeks to do, which is to protect consumers, then the Minister should accept the amendment.
My amendment No. 72 is roughly the same. The majority of the population is actually in favour of legislation to ensure that farmers and other suppliers get fair prices. Three out of ten people believe that below cost selling of vegetables is of long-term benefit to consumers. In reality, below cost selling of products will not bring average or complete benefits to consumers. However, it does put fierce pressure on suppliers. It also reduces the understood value of a product in the view of consumers.
In recent times we have seen some German multiples selling vegetables at extremely low levels. At a time when a lot of food is being thrown out and food waste levels are high, that type of behaviour is accelerated when individual consumers can pick up products at such low prices. I therefore ask the Minister to support the amendment.
I do not support this amendment at all. The idea that one would allow suppliers to define the price at which their goods would be sold-----
It is the cost.
-----is totally contrary to any form of competition and would militate against the consumer. Any market is based on the meeting of two different sides and bidding down the price. It is a question of supply and demand depending on the pressure. However, the suggestion that people should be able, through the invoice they serve, to define the price at which goods will be sold is what would be called resale price maintenance. That is a well recognised abuse of competition, yet the Deputy is not only suggesting that we would tolerate resale price maintenance but that we would also make it an obligatory requirement by introducing it into our law. It is totally contrary to any form of competition approach that protects consumers. Consumers cannot have suppliers telling them the price at which they must buy, and enforce it by law. That is not a marketplace, it is some sort of regime for suppliers. I do not support that.
We need healthy competition in the marketplace, which involves people having to compete. They should not be able to write their own price and know they will get it because it is protected by law. That is not competition. When Deputy Calleary's own party leader had this portfolio, he decided it should not be in our law. The abolition of the restricted prices order-----
The groceries order.
-----has removed the statutory basis for the Minister to make minimum price orders in any sector. Having price competition is a healthy feature of our marketplace. That is the way new businesses develop. They come in at a cheaper price and they undercut someone. We do not seek to underpin the established interests by underpinning in law the price they want to charge. If that were the case, the next thing they would want is barriers to entry so they could not be disturbed and because they like the existing incumbents.
The nature of the marketplace is dynamic, with new people coming in offering consumers better deals. That is perfectly right. In this legislation we are not trying to give such powers to retailers or suppliers. We are trying to ensure that suppliers are not abused by over-powerful retailers in the approaches they take. Upholding prices is not the way to do that. The way to do it is to ensure that there are no unfair terms in their contracts. That still leaves players to compete and negotiate on price. We are not stopping the normal commercial negotiations that should occur in contracts about price levels. That sort of competition and negotiation is in consumers' interests. One wants to see both sides, suppliers and retailers, setting prices in a competitive environment that protects consumers. That is the way the marketplace works.
I am surprised at support for the notion that suppliers would set their own prices and that we would underpin it in law. That idea was abandoned because it was not effective. It served to keep prices up. I am sure that Deputy Martin, when he was a Minister, made the changes for those reasons.
Predatory pricing is another issue that arises in this context. Aggressive price competition is fine but where it becomes predatory and is designed to drive someone else out of the marketplace there is a genuine competition concern. Low prices are not a concern in competition law but where the motivation is to undermine some legitimate player in the marketplace, then there is abuse of dominance and the Competition Authority has the powers to pursue it. It is the authority's right and obligation to go after such pricing. Low prices are good but predatory pricing is an abuse. It is prevented by our competition law.
Irish statute law and EU law recognise simple retention of title clauses of the kind set out in the amendment. The courts have also upheld such clauses. It is one thing for the law to uphold certain forms of retention of title clause, freely agreed to by contracting parties, but quite another for it to insert a mandatory title retention clause into commercial contracts. To the best of my knowledge no other jurisdiction has introduced a legislative provision of that kind. The aim of the Bill's provisions on grocery goods is to achieve a proper balance in commercial relations between suppliers and retailers, but this should not be done by introducing a potential imbalance into relations between suppliers and retailers, and other parties.
The proposed amendment would affect the interests of third parties, including the Revenue Commissioners, employees and unpaid service providers, who have no equivalent option to take back services that have been provided by reducing the pool of assets available for distribution to other creditors of an insolvent buyer, and effectively permitting an unpaid seller to jump the queue of creditors.
The potential for retention of title clauses to lead to inequity between creditors has, in fact, led a number of jurisdictions, including the United States, Australia and New Zealand, to treat such clauses as a form of security interest against third parties that must be registered by the seller. The Law Reform Commission proposed a similar system of registration and other conditions regulating the retention of title clauses. Those recommendations were not implemented. In its comprehensive 2011 report on legislation governing the sale of goods, the Sales Law Review Group also concluded that because of their impact on third parties who had no say in the contract, any reform of retention title clauses had to be considered in the context of a broader reform of the law on personal property security interests.
Although I have some sympathy with the aim behind this amendment, I am not in a position to accept it. I am referring to the one on retention of title.
Where do we start? I noted the Minister's comments about predatory pricing and retention of title, which he read from the memorandum, but when it came to protecting the big beast he was quite passionate about it.
I do not know if the Minister really understands what is happening with small producers. On "Planet Richard" all is lovely and everybody gets on well together. It is all fine, with suppliers being nice to producers. They all arrange a price and everyone is happy. In the real world, however, the supplier is a multinational or a major Irish company that goes to the producers - many of whom are in the Minister's own constituency - and tells them, "This is what we want and this is the price you are getting. In addition to that price, we want more money for shelf space. We want you to supply us and you might have to come in and lay out the stock. We basically want you lock, stock and barrel, and give us your children while you're at it." Is that all find and happy? That may be the kind of relationship the Minister wants, but it is not the kind of country I want. It is not the kind of business relationship that is healthy.
The Minister says that our amendment could stop competition but the current relationship is blocking competition.
Big producers will be able to sustain that way of doing business but the small guy will not be able to disrupt the market, to use the Minister's phrase, in this kind of relationship. That is the reality. The Minister is a farmer's son and a former agricultural economist. He knows it is not possible to produce a cabbage for 5 cent. He appears to think those who produce the cabbages are able to tell the supermarkets the price at which they will sell their produce but they are told what they are going to get. Producers are being driven out of the market and consumer choice is being restricted.
I do not know if the Minister attended the reception organised by the IFA and Good Food Ireland last night for small producers from all over the country. The colleagues of the Minister who attended the reception, and who will troop into the House to vote in support of his version of events, told all the small producers they were super. Now that they have a chance to protect these producers, however, I suspect they will not take it.
A large number of producers are experiencing an increasing squeeze on prices. This is literally putting suppliers and farmers out of business. It is not just me that is saying this. Ms Mairead McGuinness, MEP, made a similar comment recently when she agreed with a suckler beef and tillage farmer from County Laois that the type of practices we are discussing are making it exceedingly difficult for businesses and farms to continue. Last year, the Joint Committee on Agriculture, Food and the Marine, which is chaired by a Fine Gael Deputy, stated that future supplies of milk could be endangered by the practice of below cost selling. Such is the squeeze on farmers producing milk that it is going to reduce future supply.
We also have a ludicrous situation whereby large retailers, such as the Tescos of this world, are selling alcohol below price and reclaiming tax on their sales. Through the tax code, the State is subsidising these retailers' as they sell products below price. Whenever the Minister sees a crate of beer on sale below cost in a large multiple, he should remember that his Government is subsidising the store to sell it. It is reasonable to give producers a fair price for their products. A fair price has to include a margin that is above the cost not under it.
I find it difficult to deny the obvious. As Deputies Calleary and Tóibín have pointed out, we are staring at the obvious. It is an open goal. The Minister is at a landmark moment or a crossroads in that he is able to do something meaningful for all of the families and individuals in this country. The volume supply of food and household goods is controlled by a few large corporations, such as Tesco and Lidl. It is obvious that there is a disproportionate imbalance between the competitive presence in the market of those large corporations and their producers and suppliers. The Minister is living in a land of unreality if he thinks the small producer of vegetables or fresh produce has any sort of power, other than to the extent that the most efficient and effective producing methods have been employed, in delivering to the supermarkets. It is so simple that it is staggering if he cannot grasp that fact or see the opportunity that now arises to level the playing pitch. We need more transparency on the financial engineering and structures of these companies. I refer to simple stuff that could give us a benchmark or measurement of the fairness or otherwise in their operations. It is wrong that agricultural producers have to sell their goods at far below efficient agricultural production costs. It is an abuse of power and it should be recognised for what it is. It is that simple.
I do not know whether Deputy Mathews has read the amendment he is supporting. He supports the notion that companies like Kellogg's, Nestle or Procter and Gamble could set out on their invoices the price at which their products must be sold. These companies would be able to decide what consumers must pay for their grocery goods. The amendment provides that the Minister shall give a direction that a retailer shall not sell grocery goods at a price that is less than the net invoice amount of the goods. That is bizarre economics. We cannot hand over the authority to fix the price at which goods are sold to any such company. This is the amendment the Deputies are sponsoring. It is an attempt to revert to a situation in which suppliers decide the price at which their goods should be sold. That is a well known breach of competition known as resale price maintenance. If it was done under collusive arrangements the Competition Authority would pursue those involved. The Deputies propose to make it the law of the land that every seller to a retail chain can set its own price, and the retailer cannot do anything about it. That is not competition or a marketplace.
I did not say that.
That is what we are debating.
No, that is not what I said.
Please allow the Minister to respond.
The amendment provides that the Minister shall give a direction-----
Excuse me, a Cheann Comhairle, the Minister was attributing to me something I did not say.
You had an opportunity to speak. You are interrupting the Minister's contribution.
Are you going to allow him to claim I said something that I did not say?
You have no right to start questioning him across the floor. You will have another two minutes to respond because you have only spoken once. Let the man make his point.
He is making a point on something I did not say.
You have to learn about procedure in the Chamber. You cannot just interrupt.
You can allow him to say-----
No, I cannot allow anybody to say anything. I only deal with procedure. That is all I do.
All I am saying is that the amendment which Deputy Mathews seems to regard as a no brainer or an open goal-----
I am saying we should do what is right.
Deputy, will you ever stay quiet please?
It states that the Minister shall -----
I said that the Minister has an open goal.
Whatever he said, I am saying -----
He said he should introduce a level playing pitch.
I do not know what he is saying.
Deputy Mathews, I warn you that you will be leaving the Chamber if you are not careful.
If we are not debating the amendment before us I do know what open goal the Deputy is referring to. There are always open goals but we are debating whether the Minister should be able to give a direction that a retailer shall not sell grocery goods at a price that is less than the net invoice amount of the goods. That is not the correct approach. It would militate against consumers' interests.
Does it say in every case?
Deputy, stop interrupting or else leave the Chamber.
It says in every case. It proposes that the Minister shall give a direction that a retailer shall not sell grocery goods at a price that is less than the net invoice amount of the goods. The Bill defines grocer goods in a later section. These are all products that are sold as groceries and we have set out various categories.
The Minister has left out the phrase "having regard to subsection (1)", and that subsection outlines a range of conditions, including "the desirability of the promotion of competitive trade" and "the interests of consumers". There is a range of conditions and this does not give carte blanche to a Minister or supplier. The notion that Kellogg's or similar companies could set the price of Rice Krispies is untrue, as this amendment has the security of subsection (1) and its seven paragraphs to protect the power given to the Minister. The amendment has included the protection of the consumer, supplier and the public interest. It is not a carte blanche amendment by any means.
Amendment put:
The Dáil divided: Tá, 38; Níl, 84.
Tá
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Browne, John.
- Calleary, Dara.
- Collins, Joan.
- Colreavy, Michael.
- Coppinger, Ruth.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Ellis, Dessie.
- Ferris, Martin.
- Grealish, Noel.
- Healy, Seamus.
- Healy-Rae, Michael.
- Higgins, Joe.
- Kitt, Michael P.
- Mac Lochlainn, Pádraig.
- McConalogue, Charlie.
- McGrath, Finian.
- McGrath, Mattie.
- McGuinness, John.
- McLellan, Sandra.
- Martin, Micheál.
- Mathews, Peter.
- Moynihan, Michael.
- Murphy, Catherine.
- Ó Caoláin, Caoimhghín.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Shortall, Róisín.
- Smith, Brendan.
- Stanley, Brian.
- Tóibín, Peadar.
- Troy, Robert.
Níl
- Bannon, James.
- Breen, Pat.
- Bruton, Richard.
- Burton, Joan.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Carey, Joe.
- Coffey, Paudie.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Daly, Jim.
- Deasy, John.
- Deenihan, Jimmy.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Feighan, Frank.
- Ferris, Anne.
- Fitzgerald, Frances.
- Flanagan, Charles.
- Flanagan, Terence.
- Gilmore, Eamon.
- Griffin, Brendan.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Tom.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Kevin.
- Keating, Derek.
- Kehoe, Paul.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Lyons, John.
- McCarthy, Michael.
- McEntee, Helen.
- McFadden, Gabrielle.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Mitchell, Olivia.
- Mitchell O'Connor, Mary.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Nash, Gerald.
- Neville, Dan.
- Nolan, Derek.
- Ó Ríordáin, Aodhán.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Mahony, John.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Penrose, Willie.
- Perry, John.
- Phelan, John Paul.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Sherlock, Sean.
- Stagg, Emmet.
- Stanton, David.
- Varadkar, Leo.
- Wall, Jack.
- Walsh, Brian.
- White, Alex.
Tellers: Tá, Deputies Dara Calleary and Seán Ó Fearghaíl; Níl, Deputies Emmet Stagg and Paul Kehoe.
Amendment declared lost.
Amendments Nos. 52 and 55 are related and may be discussed together by agreement.
I move amendment No. 52:
In page 84, between lines 14 and 15, to insert the following:
“(2) Subject to a grocery goods undertaking choosing to enter into a contract, relevant grocery goods undertakings shall have a contract with a grocery goods undertaking for the sale or supply of grocery goods.”.
The legislation as framed is very vague on the need to have a contract between a producer or a supplier and a grocery goods undertaking. The purpose of this amendment is to ensure that a contract is necessary that will outline the responsibilities of the supermarket, and of the supplier and the producer to the supermarket.
The amendment seeks to address the imbalance in the negotiation power in the supply chain. Providing for mandatory contracts gives a supplier a choice and the opt-out is there too. Some suppliers feel that their power within the supply chain is significantly reduced without this opportunity and this amendment seeks to resolve that imbalance.
These two amendments essentially propose the same thing albeit in a different manner, that where a grocery goods undertaking chooses to enter into a contract with the relevant grocery goods undertaking, the latter must have a contract with the former for the supply of grocery goods. I note a difference in the legal framing of the amendments tabled by Deputies Tóibín and Calleary. Deputy Tóibín’s amendment seeks to include this provision under the list of activities from which the regulations foreseen by the Bill will be drawn up, while Deputy Calleary’s proposal is to make it obligatory outside the regulations as a stand-alone measure.
The provisions of the Bill state on page 84, section 63B(2)(a) that the regulations "may specify the form of the contract that would be entered into by the parties". While I do not want to pre-empt the final regulations, this section is pivotal to trying to ensure that situations such as unilateral amendments to terms, retrospective changes to terms, etc., are covered by the regulations. Without a written contract in place, it would appear to be impossible to enforce any regulations on issues such as unilateral amendments to terms, retrospective changes to terms, etc. It is worth noting that the issue of written contracts is a core part of the UK code of practice for this very reason.
As regards the suggestion that grocery goods undertakings could decide not to have a contract, this would have the practical effect of the grocery goods undertaking having no protection under the regulations. I am not sure if that is what the Deputies intended in their proposals. There is always the possibility that the proposal could have the effect of a grocery goods undertaking being coerced into opting out of contracts by relevant grocery goods undertakings. This would leave grocery goods undertakings having no protection under the regulations.
Since Committee Stage the Department has received confirmation from the Irish Farmers Association, IFA, that it no longer wishes to pursue such an amendment. For all of these reasons I am not convinced that this is a good idea and thus am not in a position to accept the amendments. At the heart of the proposal is having a contract and if it is permissible to contemplate an opt-out there is a very real risk of coercion. The contract is the document which is the instrument of enforcement. It would be counterproductive to go with the proposed amendment.
I am happy to withdraw the amendment if the Minister can give me a guarantee that there will be strong provisions within the regulations on contracts, what they should contain and their enforcement. When is it planned to publish the regulations?
We are developing them in parallel but we need to wait until the Bill has been passed and know exactly what we are providing. We intend over the summer to put out draft regulations for consultation including by the Oireachtas Joint Committee on Jobs, Enterprise and Innovation.
We will seek to implement them thereafter. We are developing them in parallel so that we do not have to wait until everything is completed. Obviously, the regulations will not cover everything from the word go. We will focus on food. We are not going to include garden plants, for example, although we have indicated we will engage in consultation in that regard. The way we have drafted this gives us some facility to introduce the more urgent piece first.
Amendment, by leave, withdrawn.
I move amendment No. 53:
In page 84, between lines 14 and 15, to insert the following:
"(2) A retailer defined as a relevant grocery goods undertaking must disclose the annual profits of its Irish outlets.".
Amendment put:
The Dáil divided: Tá, 34; Níl, 81.
Tá
- Boyd Barrett, Richard.
- Broughan, Thomas P.
- Browne, John.
- Calleary, Dara.
- Collins, Joan.
- Colreavy, Michael.
- Cowen, Barry.
- Crowe, Seán.
- Daly, Clare.
- Doherty, Pearse.
- Ellis, Dessie.
- Ferris, Martin.
- Grealish, Noel.
- Halligan, John.
- Healy, Seamus.
- Healy-Rae, Michael.
- Higgins, Joe.
- Keaveney, Colm.
- Kitt, Michael P.
- Mac Lochlainn, Pádraig.
- McConalogue, Charlie.
- McGrath, Finian.
- McGrath, Mattie.
- McGuinness, John.
- McLellan, Sandra.
- Moynihan, Michael.
- Ó Cuív, Éamon.
- Ó Snodaigh, Aengus.
- O'Brien, Jonathan.
- O'Sullivan, Maureen.
- Shortall, Róisín.
- Smith, Brendan.
- Tóibín, Peadar.
- Troy, Robert.
Níl
- Bannon, James.
- Breen, Pat.
- Bruton, Richard.
- Burton, Joan.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Catherine.
- Byrne, Eric.
- Carey, Joe.
- Coffey, Paudie.
- Collins, Áine.
- Conaghan, Michael.
- Conlan, Seán.
- Connaughton, Paul J.
- Conway, Ciara.
- Coonan, Noel.
- Corcoran Kennedy, Marcella.
- Costello, Joe.
- Coveney, Simon.
- Daly, Jim.
- Deasy, John.
- Deenihan, Jimmy.
- Deering, Pat.
- Doherty, Regina.
- Donohoe, Paschal.
- Dowds, Robert.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Feighan, Frank.
- Ferris, Anne.
- Flanagan, Charles.
- Gilmore, Eamon.
- Griffin, Brendan.
- Hannigan, Dominic.
- Harrington, Noel.
- Harris, Simon.
- Hayes, Tom.
- Heydon, Martin.
- Howlin, Brendan.
- Humphreys, Kevin.
- Keating, Derek.
- Kehoe, Paul.
- Kenny, Seán.
- Kyne, Seán.
- Lawlor, Anthony.
- Lynch, Ciarán.
- Lyons, John.
- McCarthy, Michael.
- McEntee, Helen.
- McFadden, Gabrielle.
- McHugh, Joe.
- McLoughlin, Tony.
- McNamara, Michael.
- Maloney, Eamonn.
- Mitchell, Olivia.
- Mitchell O'Connor, Mary.
- Mulherin, Michelle.
- Murphy, Dara.
- Murphy, Eoghan.
- Nash, Gerald.
- Neville, Dan.
- Ó Ríordáin, Aodhán.
- O'Donnell, Kieran.
- O'Donovan, Patrick.
- O'Mahony, John.
- O'Reilly, Joe.
- O'Sullivan, Jan.
- Penrose, Willie.
- Perry, John.
- Phelan, John Paul.
- Reilly, James.
- Ring, Michael.
- Ryan, Brendan.
- Stagg, Emmet.
- Stanton, David.
- Tuffy, Joanna.
- Varadkar, Leo.
- Wall, Jack.
- Walsh, Brian.
- White, Alex.
Tellers: Tá, Deputies Aengus Ó Snodaigh and Peadar Tóibín; Níl, Deputies Paul Kehoe and Emmet Stagg.
Amendment declared lost.
Amendments Nos. 54 and 57 are related and may be discussed together.
I move amendment No. 54:
In page 84, between lines 16 and 17, to insert the following:
"(a) specify that payments for grocery goods supplied to relevant grocery goods undertakings to be made within 30 days,".
It is current market practice that payment terms are being extended to 90 or even 120 days. Many small producers and suppliers cannot afford to sustain this practice, but there is no protection available to them. This amendment seeks to reduce the maximum payment period to 30 days.
This is a matter of simple economics for small business owners, many of whom find it extremely difficult to deal with elongated credit terms. Such extended payment periods are one of the levers by which large multiples may seek to improve the terms and conditions available to them. The provision of a 90-day credit term allows those multiples to make interest on the money they should be paying to small businesses. By agreeing to this amendment, the Minister would facilitate the flow of credit for a large number of small businesses. The protracted committee meetings we have had regarding banking credit made clear that credit flow is one of the major issues for businesses at this time. If they cannot achieve that blood flow of credit through their system, many businesses will die, even where they have a good business model.
The provision in this amendment offers a simple way to improve that situation. I cannot see how a multiple's desire for 60 or 90 days of credit can be defended by the Minister.
The purpose of the provisions in the Bill relating to the grocery goods sector, and the regulations which I will make in due course on foot of those enabling provisions, is to regulate certain practices in the sector. On the issue of payment, subsection 63B(2)(p) of the Consumer Protection Act 2007, as inserted by section 80 of this Bill, provides that the regulations may specify the manner and timeframe in which payment for grocery goods supplied to relevant grocery goods undertakings is to be made. This issue of the timeframe for payment should be considered in the context of any regulations rather than in primary legislation in order to allow for more flexibility, if required, in any statutory instrument.
Payments are also covered by prompt payment legislation, which must be factored into any regulations. Setting out a period of 30 days or any set period in primary legislation may be too rigid compared with the making of regulations. Thus, while the text of any regulation is not yet finalised or agreed, these amendments are neither required nor appropriate for this Bill.
I welcome the indication that this matter will be provided for in the regulations. It is frustrating, however, that so much depends on those regulations, which we will not see before the legislation is passed. The Minister is saying that regulations cannot be brought forward in advance, but we can safely assume, based on the Government's majority, that what we are looking at here will, in fact, be what is passed into law. On that basis, will the regulations be published before the Bill goes to the Seanad?
It is not my intention to publish regulations before the Bill completes its passage through the Oireachtas. After it is dealt with by this House, we must allow for the possibility of amendments being made by the Seanad. Any draft set of regulations must reflect the primary legislation. That, after all, is the function of regulations.
As I said, we are making provision to allow us to govern payment periods. My issue with what is proposed in these amendments is the inflexibility of including such provision in primary legislation. There already is improved legislation in this field. Under the EU directive, for example, there is penalty interest and the ability to charge for recovery where it is necessary to pursue such recovery in the courts. The regulations will provide an additional enforceability in the sense that whatever we put into them will be overseen by the Commission, which will have a role in ensuring this approach is honoured in practice as well as in the contract terms.
Is the amendment being pressed?
I will withdraw it, pending the regulations.
Amendment, by leave, withdrawn.
I move amendment No. 55:
In page 84, between lines 16 and 17, to insert the following:
"(a) subject to a grocery goods undertaking choosing to enter into a contract, relevant grocery goods undertaking shall have a contract with a grocery goods undertaking for the sale or supply of grocery goods,".
Amendment put and declared lost.
I move amendment No. 56:
In page 84, between lines 25 and 26, to insert the following:
"(c) specify Retention of Title for goods delivered until such time full payment is received,".
Amendment put and declared lost.
I move amendment No. 57:
In page 84, line 34, after "undertakings" to insert "to be made within 30 days".
Amendment put and declared lost.
Amendment No. 58 arises out of committee proceedings.
I move amendment No. 58:
In page 84, line 35, to delete "promotion and sale of goods on promotion" and substitute "price, marketing and sale of goods on promotion and the duration of the promotion".
This is a technical amendment to clarify the issues relating to promotions which might be included in any regulations relating to terms and conditions in contracts for the sale or supply of grocery goods.
Amendment agreed to.
I move amendment No. 59:
In page 84, line 41, to delete "manner" and substitute "circumstances and manner".
This is a technical and grammatical amendment.
Amendment agreed to.
Amendments Nos. 60 to 63, inclusive, and 65 to 71, inclusive, are related. Amendments Nos. 66 to 71, inclusive, are consequential on amendment No. 65. Therefore, amendments Nos. 60 to 63, inclusive, and 65 to 61, inclusive, may be discussed together.
I move amendment No. 60:
In page 85, line 36, to delete "secure better positioning" and substitute "retain shelf space, or to secure better positioning on shelves".
The two issues of introducing a prohibition in respect of compelling of payment in respect of shelf place to the list of prohibited activities that may be included in the regulations as well as a prohibition on requiring a grocery goods undertaking to obtain any goods or services from a third party from which the relevant grocery goods undertaking receives payment for this arrangement were raised by Deputy Tóibín on Committee Stage and I happy to propose amendments, agreed with the Office of Parliamentary Counsel, on these two issues.
I am also introducing a technical amendment to clarify that retention of shelf space is also an activity that may be covered by the regulations in the context of agreed payment for shelf space which would bring the wording of section 63(B)(i) into line with that of the new provision on prohibiting compelling of payments.
On the third and final element of Deputy Tóibín's proposed amendment, which proposes to prohibit a relevant grocery goods undertaking from directly or indirectly compelling a grocery goods undertaking to make any payment or grant any allowance directly related to the value or volume of goods traded, my understanding is that this concerns a desire to prohibit contracts that include long-term agreements which provide for the payment of substantial off invoice rebates at the end of a trading period. I have reflected on this since Committee Stage and I am of the view that the issue of regulating for payments is covered by a series of subsections in the Bill - for example, section 63B(2)(d) - and the situation outlined by Deputy Tóibín appears to be already covered by these provisions. Thus, I am not in a position to accept this amendment.
I welcome the fact the Minister introduced an amendment which broadly reflects the amendment I tabled to copper-fasten the ban on hello money and to ensure there is no abuse in that regard.
Amendment agreed to.
I move amendment No. 61:
In page 86, line 1, to delete "or".
Amendment agreed to.
I move amendment No. 62:
In page 86, between lines 4 and 5, to insert the following:
Amendment agreed to.
I move amendment No. 63:
In page 86, between lines 4 and 5, to insert the following:
Amendment, by leave, withdrawn.
I move amendment No. 64:
In page 86, to delete lines 5 to 8 and substitute the following:
"(k) specify arrangements regarding promotions of grocery goods and related activities and the circumstances in which such arrangements shall be included in the contract for the sale or supply of grocery goods referred to in paragraph (a).".
This technical amendment clarifies the scope of this provision relating to promotions.
Amendment agreed to.
I move amendment No. 65:
In page 86, between lines 11 and 12, to insert the following:
Amendment agreed to.
I move amendment No. 66:
In page 86, line 12, to delete "(m) specify" and substitute "(n) specify".
Amendment agreed to.
I move amendment No. 67:
In page 86, line 16, to delete "(n) provide" and substitute "(o) provide".
Amendment agreed to.
I move amendment No. 68:
In page 86, line 20, to delete "(o) provide" and substitute "(p) provide".
Amendment agreed to.
I move amendment No. 69:
In page 86, line 24, to delete "(p) specify" and substitute "(q) specify".
Amendment agreed to.
I move amendment No. 70:
In page 86, line 27, to delete "(q) provide" and substitute "(r) provide".
Amendment agreed to.
I move amendment No. 71:
In page 86, line 32, to delete "(r) contain" and substitute "(s) contain".
Amendment agreed to.
I move amendment No. 72:
In page 86, between lines 35 and 36, to insert the following:
Amendment put and declared lost.
I move amendment No. 73:
In page 86, line 39, to delete "undertakings" and substitute "undertakings, or one or more classes of grocery goods,".
This amendment provides that the regulations foreseen under the Bill can be made by classes of grocery goods rather than all classes of such goods. Not only will this allow for the possibility to produce more refined regulations, but it also allows me, as Minister, time to consult on the issue of whether regulations in respect of garden plants are required through a full consultation process.
Amendment agreed to.
I move amendment No. 74:
In page 87, line 2, to delete "Commission" and substitute the following:
Amendment agreed to.
Amendment No. 75 arises out of committee proceedings.
I move amendment No. 75:
In page 87, between lines 13 and 14, to insert the following:
There were much debate in this Chamber previously when Deputies from all sides indicated that if suppliers engage in a process whereby they identify problems and lift their heads above the parapet, they get punished and discriminated against. When Deputy Creed was on the Opposition benches and spokesperson for agriculture, he made similar points to myself. I think Ms Mary Coughlan was Minister for Agriculture at the time. This amendment is to gives anonymity and confidentiality to the complainant. Where that is waived, there must be confidence that there will not be discrimination, disadvantage or unfair treatment. If that anonymity or confidentiality is not there, or if an individual does not have confidence that he or she will not be discriminated against, the Minister can be sure that a functioning business will not lift its head above the parapet and the injustice will continue.
Deputy Tóibín has proposed an amendment relating to the protection of anonymity and confidentiality from complainants and their possible subsequent treatment as a result of the complaint. As I outlined on Committee Stage, the commission will have authority under section 63C(2) to initiate an investigation of a relevant grocery goods undertaking on foot of receiving a complaint.
Alternatively, it can act on its own initiative. This alternative is aimed at allowing the commission investigate independently of complaints being made. Equally, the provision to issue contravention notices, and making breaches of such orders an offence, is intended to allow the commission enforce the regulations made without having to base its actions on complaints.
In relation to anonymity for complainants, I am sure the commission will seek to protect the identity of persons who supply it with information in the first instance in the course of commencing its investigation. Indeed, section 25 provides for a prohibition on unauthorised disclosure of confidential information. However, it must be pointed out that in enforcing any regulations the basic tenets of fair procedure and natural and constitutional justice must be upheld. In that context, the right of an accused to details of his or her accuser is a core tenet of the constitutional and legal system. Thus, while understanding the rationale behind Deputy Tóibín's proposed amendment, I am not in a position to accept it.
Amendment put and declared lost.
Amendment No. 76 not moved.
I move amendment No. 77:
In page 91, between lines 9 and 10, to insert the following:
“ Res judicata
83. (1) Where, in proceedings under Chapter 5 (inserted by section 80) of Part 3 of the Act of 2007, a court finds, as part of a final decision in relation to the matters to which those proceedings relate, that a relevant grocery goods undertaking contravened—
(a) a provision of regulations made under section 63B of that Act, or
(b) a requirement in a contravention notice,then, for the purposes of any subsequent proceedings (other than proceedings for an offence) under that Chapter, the finding shall be res judicata (whether or not the parties to the said subsequent proceedings are the same as the parties to the first mentioned proceedings).
(2) In this section—
“contravention notice” has the same meaning as it has in Chapter 5 of Part 3 of the Act of 2007;
“finding” includes a conviction for an offence, whether or not that conviction is consequent upon a plea of guilty by an accused person;
“relevant grocery goods undertaking” has the same meaning as it has in Chapter 5 of Part 3 of the Act of 2007.”.
The introduction of this new section builds on the enforcement provisions already included in the Bill by providing that where a court has made a final finding in a particular case under this Part, that finding is res judicata for the purpose of subsequent proceedings whether or not the parties to those subsequent proceedings are the same as the parties to the first mentioned proceedings. In addition to strengthening the public enforcement regime for breach of the law, this Bill also encourages more civil enforcement through private litigation. By providing that a finding in earlier proceedings shall be res judicata in subsequent proceedings, it lessens somewhat the burden on a private litigant who, relying on this legal doctrine will not be required to prove the contravention of the relevant section afresh in a follow-on action in respect of the same contravention. Rather, he or she will be able to rely on the earlier finding for the purpose of an action for damages.
That replicates a provision inserted into the Competition Act 2002 by way of the Competition (Amendment) Act 2012. This is an additional powerful tool both for potential victims of breaches of the regulations as well as a powerful deterrent to potential offenders and adds to the suite of other provisions in the Bill to deter breaches and protect victims.
I apologise to Mrs. Murphy for not studying my Latin properly.
Res is a thing. I know that much.
We could do with a bit of Greek.
Amendment agreed to.
I move amendment No. 78:
In page 92, to delete lines 1 to 4.
Amendment agreed to.
I move amendment No. 79:
In page 95, to delete lines 1 to 40, and in page 96, to delete lines 1 to 28.
Amendment agreed to.
Bill, as amended, received for final consideration.