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JOINT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS díospóireacht -
Tuesday, 13 Sep 2005

Restrictive Practices (Groceries) Order 1987: Presentation.

The first item is a discussion with Dr. John Fingleton, chairman of the Competition Authority, regarding the authority's submission to the Minister on the groceries order. I welcome Dr. Fingleton; Ms Carol Boate, manager, and Mr. Andrew Rae, case officer of the advocacy division of the Competition Authority. Before their presentation, I draw attention to the fact that while members of the committee have absolute privilege, the same privilege does not extend to those appearing before the committee. Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise, or make charges against a person outside of the House or an official by name or in such a way as to make him or her identifiable.

I invite Dr. Fingleton to make his submission, after which we will have a question and answer session. I congratulate Dr. Fingleton on his elevation and wish him well in the future.

Dr. John Fingleton

It is a great pleasure to appear before the committee for what I suspect will be the last time unless I am called again in the next three or four weeks. If it is acceptable to the committee, I will not read from but refer to the material members have received. It will be a summary.

The committee has no objections if Dr. Fingleton wishes to do so. Will he refer to the submission of the CSO made here a few weeks ago because it appears there is only a very scant reference to it in his submission?

Dr. Fingleton

I will happily do so.

The Competition Authority is an independent public body which has no axe to grind on this or any other issue. Our job is to analyse how competition works in the market and make recommendations to the Government on the effects of legislation and regulations on competition. In doing so, we must routinely balance the interests of producers and consumers.

This is but one of the many very fine submissions the authority has produced in recent years. It has presented new data and placed them in the public domain in a transparent manner. Obviously, our submission has hit a nerve, especially with vested interest groups, to which the data seem to have come as a surprise. They are inconsistent with what they have been saying.

The groceries order harms consumers in the economy through high prices, which has been the Competition Authority's long-held position since before I went there. It is supported by a diverse range of other independent groups and consumer bodies. Even the joint committee's report from 2004 concedes that the groceries order raises prices. It is a special law protecting grocery shops from competition and if it applied in other sectors, it would ban Christmas sales, low prices by——

I am assured that the groceries order raising prices is an inaccurate statement.

Dr. Fingleton

If the Chairman wishes, I can come back to the committee's report.

Dr. Fingleton should please do so. We want the facts.

Dr. Fingleton

Indeed. I share the Chairman's desire for them. I will go through the report with the committee and point out the places at which it conceded that point. Consumers in Ireland are feeling the pain of higher prices across all sectors. When one investigates deeper, it is clear that we have become the highest priced country in the European Union in terms of food and that our food price inflation, relative to other countries in Europe, sticks out as an anomaly. The Competition Authority's new data show it is groceries order items rather than non-groceries order items that have been driving this higher inflation.

The Central Statistics Office, when it appeared before this committee on 31 August 2005, validated entirely the Competition Authority's data, despite misrepresentation by vested interests. Ultimately, even the vested interests' myths about predatory pricing agree that the effect of removing the groceries order would be to lead to lower prices. I do not believe there is any doubt that this would lead to lower prices. The question revolves around the extent to which it would do so and whether it would have a significant effect, that would be important in terms of policy consideration, or whether that effect would be small or insignificant. What our data have done is not just prove that these groceries order prices are driving higher food price inflation, rather it has enabled us to quantify and give an indication of the volume. Given that we spend €6 billion per year on food, the figure is very large.

This is a hidden tax on consumers. It is collected by RGDATA and IBEC members. No matter what way one parses the data or makes assumptions about starting data on including food and household necessities or excluding alcohol, the figure comes out as hundreds of millions of euro. This is because we spend so much money on food. What is even worse is that this is a regressive tax levied by shopkeepers and suppliers because it takes a higher proportion from the poorest and lowest income groups in society. Removing the groceries order would be the equivalent of giving the lowest 10% between one and two extra weeks' income each year.

In contrast to the authority's transparent approach in putting all of its data, assumptions and sources into the public domain, the numbers and figures given by the vested interests in this debate simply do not stack up. They have relied on a series of myths that they have constantly repeated like a mantra until people have almost accepted them as being true. However, nobody has questioned their sources. There are four of these myths, namely, that predatory pricing will happen, that costs are to blame for high prices, that we will see the advent of ghost town Britain and that suppliers are threatened. These four myths have one point in common, which is that there is not one shred of evidence behind any of them.

I will deal with predatory pricing first. The Competition Act 2002 is the right ban on below cost selling. The groceries order is not a ban on below cost selling but a ban on selling below the invoice price. It is not even what it says on the can. However, not one shred of evidence has been produced from the United Kingdom or anywhere else to show that intense competition has led to prices increasing and people being driven out of the market. It is easy for competitors to complain about the low prices of their rivals. They do it all the time. We routinely receive complaints about predatory pricing because other people are offering consumers a better deal. When we examine matters, what we discover, for the most part, is that this is just healthy competition. People always like to complain about their competitors selling at lower prices. We recently received a complaint from people about a pharmacy that had opened next door to them. They asked whether regulations could shut that shop down because two shops being in the area was confusing consumers. It is much easier for people to complain about lower prices but this is healthy competition. The fact is that Northern Irish and UK consumers have had permanently lower prices from higher competition. The prices have not gone back up.

Costs are a lame excuse. It is always those protected from competition that plead costs. Companies that operate in highly competitive markets do not do so. Aer Lingus pleaded high costs when it was faced with real competition. When it had to compete in the marketplace, knowing the taxpayer would not provide another tranche of State aid, it managed to reduce costs. It effected a remarkable transformation, which nobody could have predicted four years ago. The idea that high costs explain this matter must be challenged. Wages account for between half and two thirds of convenience store costs. High wage rates are not the same as wage costs because one must take account of productivity. Ireland wants to be a high wage, high productivity economy. Therefore, we cannot listen to people who complain that wages have gone up but who ignore productivity increases.

There have been productivity gains in the retail and distribution sectors. Real farm gate prices, a major cost for retailers about which we do not hear, have gone down. Telecom costs have also diminished. Therefore, not everything is increasing in cost. There are many positive pictures in the Irish economy which are ignored in this debate. Other sectors are not complaining about price and are passing through international price reductions.

The association representing distributors, such as Musgraves, and shopkeepers, RGDATA, has repeatedly claimed that 70% of UK villages have no shops. The employers' body, IBEC, made similar claims and these have been repeated so often that people believe them to be true. No reference has been produced to indicate the source of this data. The Competition Authority has searched for data supporting this claim at the Office of Fair Trading in London and at other places. It has found no data to support this claim and nothing has been put in the public domain. We have found a report by the Countryside Agency, concerning England rather than the United Kingdom. It paints a picture of rural households that are well served by grocery shops. The only evidence we can find supports the opposite of what is claimed.

I suggest that comparisons with the United Kingdom are unlikely to be meaningful. We have very different demographics, different transport and a different sense of community. Irish consumers are different, as Tesco discovered when trying to sell us spam and mashed potatoes. Our preferences are different to those of UK consumers and our retail environment is going to be different.

The fourth myth is that the abolition of the groceries order would wreak destruction and job losses on suppliers in the Irish food processing sector. The major threat is from international competition rather than domestic competition. We are part of an international trading community and a European trading community. We cannot opt our food processing sector out of it and we no longer have the option of giving State aid to companies that find it difficult in the international trading environment.

International competition is a serious long-term threat about which we cannot be complacent. Strong domestic competition is recognised as the most important ingredient to prepare a domestic sector to face international competition. We saw an example of this with Aer Lingus, which was protected from competition for many years. Four years ago it was forced to compete and it is now better placed to face challenges or a negative shock than almost any state owned airline in Europe.

The same cannot be said of our food processing industry. When the enterprise strategy group examined enterprise policy, it singled out this sector as one with low growth, low productivity growth and a lack of customer focus. We have a serious problem in our food-processing sector and while the comfortable thing to do would be to cushion it rather than lance the boil, there is a risk that this will delay a serious and important decision for the Irish economy. This is a matter about which we cannot afford to be complacent.

These four myths are little more than a smokescreen to hide the truth that the abolition of the groceries order would benefit every Irish household to the tune of hundreds of millions of euro each year. It is important that people listening to these myths know that no evidence has been produced to support them.

There has been some discussion on amending the groceries order. I am happy to take questions on this but it poses difficulties with regard to wording a specific ban on below cost selling in this sector and compliance with this ban. My major concern is that if one changes the order to allow shops to pass on off-invoice discounts, apart from the difficulties of enforcement and compliance, companies would take a long time to understand the new environment. The benefits to consumers probably would not arrive for two to three years, until the companies got used to the new regulatory environment, and these might be less than the benefits of removing the groceries order completely. If we think it is an important issue to deal with, that delay would be a concern.

We quantified the cost of the groceries order to consumers for the first time and showed that it is in the order of hundreds of millions of euro, which is hundreds of euro for each household each year. It is important that policy is based on sound and transparent data and I am happy to place that information in the public domain. We can choose to keep the groceries order, high prices for consumers and please the powerful vested interests of employers and shopkeepers who collect this tax on consumers.

The Competition Authority is the independent public agency set up by the Oireachtas to examine these issues and it is pro consumers in this debate. It is supported in this by a 1991 study by the Fair Trade Commission; the competition and mergers review group established by the former Minister for Enterprise and Employment, Deputy Richard Bruton, which reported in 2000; the OECD, an international organisation invited by the Government to examine competition and regulatory reform in 2001; the National Competitiveness Council; the Consumers Association of Ireland; the Consumer Strategy Group; and the National Consumer Agency. More than 2,500 people sent nappies to the Minister for Enterprise, Trade and Employment, 800,000 people watched Mr. Eddie Hobbs and many people telephoned chat shows, all of which demonstrates that we represent a substantial consumer view that has always been silent in policy.

Mr. Eddie Hobbs is about to replace Mr. Niall Tóibín.

We want to keep this meeting at a certain level.

Dr. Fingleton

I welcome the fact that the consumer voice is finally being heard in this debate. It has been silent for far too long. In fact, it has been drowned out by powerful and well-funded vested interests whose stock in trade is misleading data, cloak and dagger tactics, lack of evidence and backroom deals. These restrictions were often introduced behind the scenes. Scrapping the groceries order would be an important positive step for consumers and the Irish economy. I thank the committee.

I thank Dr. Fingleton. I have some questions. Everyone, including committee members and the Competition Authority, wants the consumer to have a wide choice and the best possible price. It was brought to our attention that if the groceries order was not in place, perhaps Aldi and Lidl, which only sell 2,000 or 3,000 items each, and two other larger players that sell 20,000 or 22,000 items each, could introduce below cost selling and what happened in 1987 could recur. Not alone that but all of the smaller supermarkets that employ 60 or 70 staff in every decent sized town with a population of 20,000 or 25,000 would find it extremely difficult to survive, as would the small family store. What is Dr. Fingleton's response to this? Our deliberations with other groups have shown that is an important part of below cost selling.

Dr. Fingleton

There is no evidence for a ghost town Britain and a significant amount of this debate has been driven by the fear of convenience stores being driven out of business and people arguing that 70% of UK villages have no shop. The Countryside Agency report refers to parishes and another term which I have forgotten but which is made up of units of 50 and 100 people. If we want to compare units of 50 and 100 people——

Can we get a copy of that report? It is not included in Dr. Fingleton's submission.

Dr. Fingleton

Yes, we can get a copy of the report for members.

The report refers to settlements, which are 50 person units and a parish of fewer than 100 people. What is discussed relates to 70% of areas of 50 and 100 people rather than what people think of as villages and towns. Where I grew up in County Laois not everybody in a settlement of 50 people had a convenience store as they do now. A myth surrounds that and we will happily provide members with the Countryside Agency report.

What about towns such as Portlaoise, Mullingar and Longford to which Dr. Fingleton and I must often travel from our rural areas at weekends to shop?

Dr. Fingleton

I would like to think we are on the same side in this argument. We are not trying to shut down convenience shops. That is not our interest. Our point is simply that the convenience sector is the growth sector. Dunnes Stores and Tesco are developing a convenience format. Everybody knows we have different demographics from the United Kingdom which has a higher percentage of supermarkets. Dublin, which has a different demographic to the rest of the country, has more supermarkets than convenience stores but in rural areas towns and villages will continue to have shops. Many are growing. The village in which I grew up, Ballyroan, County Laois, has planning permission for several hundred houses and will expand to three times its former size. It will become a thriving rural community. CSO data reveal that rural communities are thriving and have benefited from the boom. At Check Out conferences, discussions concern the growth in the convenience sector. We can only eat so much food and the market is becoming oriented towards added value, convenience and matching customer needs. In terms of competition, the only fear a convenience store need have is that an adjacent convenience store may open. That is a challenge every retail business faces. Newsagents constantly face the risk that a similar business will open next door which operates longer hours or provides better services. We should not protect consumers from that because it is good for them.

What is the situation for towns with a population of 20,000 to 25,000, family stores which employ between 40 and 70 staff or Aldi and Lidl, in terms of Dunnes and Tesco? Predatory pricing is designed to put competitors out of business. Will Dr. Fingleton give us the benefit of his experience by telling us where he thinks matters stand?

Dr. Fingleton

As I have said, I do not believe there is any evidence to support the fear that towns will be left un-shopped.

There is evidence from 1987, when such events did occur. Let us be realistic; we want to survive and offer choices to the consumer. Is it possible that the abolition of the groceries order, which is advocated by Dr. Fingleton, will have such an outcome? We are neutral on this issue and merely want the best choice for the consumer. Will Dr. Fingleton offer his opinion in that regard? I was a Member of the Oireachtas in 1987, as were two of my colleagues here. It was a difficult period. We do not want to see it recur.

Dr. Fingleton

It is not obvious that the liquidation of H. Williams in 1987 harmed consumers. Other stores have since entered the market.

The order came in prior to that.

Dr. Fingleton

The order was introduced around that time. I have read the evidence on that in the transcripts of this committee's last meeting. It is not about individual competitors. If a policy is designed to protect every individual competitor and ensure that no company fails because of competition in the marketplace, we will have protectionism rather than competition. The only fear a business should have in terms of competition is the entry to the market of a better or more efficient rival.

The abolition of the groceries order would increase competition and result in new challenges to multiples and convenience stores. I do not deny this. The committee's report was important in highlighting that concern. However, a demand for convenience shopping will continue and some convenience shops will survive. The important question is not whether the shop and its sign will remain exactly the same but whether a new shop opens which offers consumers a better deal. Irish people are loyal and do not shop around as much as we think they should. Somebody opening up next door to a shop which has existed for 20 years will have to make spectacular offers to induce customers to switch loyalties. Existing shops have that inherent consumer loyalty in their favour and would have to be inefficient to allow themselves to be wiped out of business. We cannot design a policy which will protect every individual shopkeeper. That would be a step too far.

Multiples are moving into a number of areas which affect family businesses and put large numbers of them out of business. Regardless of what new products are released, most backed by television advertising, these chain stores are selling them approximately 40% below cost price. Non-cost items will be offered at wholesale prices in the future. I fail to see why this is not reported in Dr. Fingleton's submission this morning.

I welcome Dr. Fingleton and wish him well in his new post. It is a great honour for the country that somebody like Dr. Fingleton has been appointed to such a prestigious UK body. Perhaps he will be able to give the committee the benefit of reporting various settlement patterns in the United Kingdom as a future guest.

He could also check out appropriate statistics.

This committee is based on the premise that any measures in this area should benefit consumers. This has been misunderstood by some people in statutory bodies as well as other organisations. The committee carried out a detailed study, which it is entitled to do, that made a recommendation with which Dr. Fingleton did not agree. He gave evidence before the committee on the issue. Can the witness give an indication of the level of food price inflation, year on year up to June, for example?

Dr. Fingleton

The most recent data is probably to August.

The year 2005 is used in the submission . The figure I see is minus 1.4%. Therefore, food prices are dropping.

Dr. Fingleton

The figure has come down.

My information from the CSO, which is the same source used by Dr. Fingleton, is minus 1.4% compared with the figure for all items in the index, which is 2.1%. Do we agree that food price inflation is dropping?

Dr. Fingleton

Yes.

Would Dr. Fingleton agree that for the 42 months from December 2001, when the present index was last modified, the rate of inflation in food and non-alcoholic drinks was only 2%?

Dr. Fingleton

We will agree on the CSO data because there is no difference of opinion around it.

In other words, we are remaining competitive, as prices are falling if anything. Would Dr. Fingleton agree that there is reasonable competition in the food sector, notwithstanding that he has difficulty with the policy that underpins it?

Dr. Fingleton

I do not agree with that statement for the following reasons. Taking the example of the petrol prices, which are now at an all-time high, nothing has changed with regard to competition in the Irish market, and foreign factors are affecting them. Taking headline inflation as stating something about competition in Ireland is not conclusive. The figures must be examined more deeply.

Looking more extensively at the data, a number of factors have occurred in recent years to which the Deputy refers. One is the movement of exchange rates, and a certain amount of our food, approximately 50%, is imported. There has been a favourable exchange rate for the past few years. A fall in farm gate prices has also occurred. The final important point is that inflation on items not covered by the groceries order has been coming down much faster than items covered by the order.

May I pick up on that point? Dr. Fingleton has stated that prices of goods not covered by the groceries order have come down more substantially than those of products covered by the order. Does he agree, drawing from the CSO source, that from 1987 to 2002, items not covered by the groceries order were more expensive than products covered by the order? How can this be explained?

Dr. Fingleton

From the point of view of competition, the relevant period is the past four years. That is the period during which, for the first time since the groceries order was introduced 18 years ago, there has been a bout of new competition in the market having an impact. Aldi and Lidl entered in 1999 and cut prices. However, they did not have a big impact on consumer prices because their market share was minuscule. Their combined market share grew between 1999 and 2002 to approximately 6%. In 2002 and 2003 Dunnes and Tesco responded to the growing share of Aldi and Lidl in the market and cut prices. That was when nappies and baby food——

They were not covered by the groceries order.

Dr. Fingleton

At that time people believed they were. In terms of the recent High Court decision, the Director of Consumer Affairs, whose job it is to interpret the groceries order, defended that case in court. They knew at the time that they were breaking the law and there was a criminal prosecution against them. It was certainly considered wrong at the time. It was during this period that there was a change in competition in the market. The internationally recognised method of examining the effect of competition on prices is to look at periods when there is a structural change in the market. This is something we do all the time in our work on mergers and in other areas. There has been a structural change in the market as a result of the response of the big players, Tesco, Dunnes and others, to the entry of Aldi and Lidl. In my professional opinion that is the correct period to examine when analysing the effects of the groceries order, not a period ten years ago or some other period.

We have to examine the entire operation of the order since 1987. When we see that in 16 of the 18 years there has been practically no difference between the prices of goods covered by the order and those not covered by it, we have to look at the figures. Dr. Fingleton is making the case that we should look at the past four or five years. From 1987 to 2003, inclusive, there was almost no difference between the prices of goods covered by the groceries order and those that were not. In 2004 there was a divergence, according to the CSO.

Dr. Fingleton is in a statutory position and must provide accurate figures and information if the independence of his office is to be respected. His submission is critical if the Minister is to make an informed decision on such a very important policy issue. Would Dr. Fingleton agree that, according to Table 2 of the background data in his submission to the Minister, clothing, footwear and household durable goods are almost all imported and cannot be compared with food and non-alcoholic beverages, given that there is hardly a textile plant left in the country and all clothing products are imported, resulting in the figure of minus 15.9%? Is that the scenario he would like to see in Ireland in regard to food?

Dr. Fingleton

Examining the number of years the groceries order prices have been higher or lower is a little like saying — I have heard vested interests——

We are on Table 2.

Dr. Fingleton

I am dealing with the first question. Deputy Hogan asked two questions. In an 18 lap race where the runners are neck and neck for 16 of the 18 laps but one of them wins by 200 metres the correct question to ask is by how much did they win, not how many laps were they ahead.

Does Dr. Fingleton mean the game is over and we should stop looking at next year's prices?

Dr. Fingleton

If Deputy Hogan is asking what the effect of the groceries order has been from 1987——

Will Dr. Fingleton answer the question?

Dr. Fingleton should answer the question highlighted by the Deputy.

Dr. Fingleton

If one looks at the cumulative effect from 1987, as the Deputy asked, over that period groceries order items went up by 51% and non-groceries order items by 42%. It is true that in some years one went up more than the other while in others, it was the other way around. However, ultimately, if they were running a race, it is quite clear that one of them finished far clear of the others, even if in some laps they were neck and neck.

It is important that the winner should be an Irish person, not a person from New Zealand or somewhere else.

Dr. Fingleton

That is a view this committee can have. However, it is not a view the Competition Authority is allowed to have under EU law.

For 15 of the 18 years during which it has been in operation, goods covered by the groceries order were cheaper than goods not covered by it. We have to take a view about the operation of the order in that context over the entire period of the order. One should not get into analogies about laps. The first lap might have been 200 metres behind——

There were 15 separate races.

One should not worry about that. I want to get the figures. The Competition Authority made a submission to the Minister which I wish to go through quickly because of the time constraint. Table 2 of the submission contains a clear indication that clothing and footwear prices have come down, the reason being that there is no protection. Is that what the Competition Authority wants in the food sector? It has already stated its case in regard to predatory pricing and said that competition is the only basis for predatory pricing and that it does not wish to see a ban on predatory pricing.

Dr. Fingleton

Perhaps I can correct that. There is a ban on predatory pricing in the Competition Act since 1991. Internationally recognising the best way to deal with predatory pricing the Competition Authority has been resourced to deal with that issue. I am very confident at our ability to deal with any predatory pricing issues that arise.

How many cases has the Competition Authority taken?

Dr. Fingleton

We have investigated a number of predatory pricing cases.

How many cases has the Competition Authority taken?

Answer the question.

Dr. Fingleton

We have not taken any. One of the cases we examined was a complaint by Aer Rianta concerning Go and Ryanair. If we had intervened and taken a case, it would have led to higher air fares. Air fares did not go up as Aer Rianta complained.

No cases were taken.

Dr. Fingleton

I think the committee is interested in more than simple headline statistics. If I say we did not take any cases, that is because we have analysed them thoroughly, have looked at the consumer interest in them and have established that the consumer interest had to do with lower prices. Afterwards we re-examine them, do ex poste evaluation and establish that prices have not gone back up. We are very attentive to these claims and will continue to be so. In regard to the point about clothing and footwear we are not pretending that food and drink prices should follow the exact path of footwear and clothing. We make the point that other sectors that face the same costs for insurance, wages, professional services and so on, do not appear to pass them on to consumers in the same way.

Regarding goods that are imported and goods produced domestically, because the groceries order covers fresh products as opposed to processed products by and large, we do not have data on the percentage imported but it seems likely that groceries order items are more tradeable than the perishable and fresh items. For that reason, to the extent that there has been an exchange rate appreciation, we would expect the groceries order items to have gone down more than the non-groceries order items, not less. In that sense it is likely that our numbers underestimate what the true outcome would be.

Since taxis were deregulated have taxi prices increased or decreased?

Dr. Fingleton

Taxi prices are regulated by local authorities.

Have prices gone up or down?

Dr. Fingleton

Prices have gone up but they are regulated.

Table 5 in the submission deals with the potential impact on household budgets of removing the groceries order. In its submission the Competition Authority has indicated that €577 million would be the potential impact on household budgets of removing the order. Anybody looking at that figure would be delighted to see it if it was achievable. In regard to that important table which the Competition Authority submitted to the Minister the Central Statistics Office indicated the Competition Authority did not look for prices on all items covered by the groceries order but a selected number. Does Dr. Fingleton agree with this?

Dr. Fingleton

My colleague Ms Carol Boate with take that question.

Ms Carol Boate

As manager of the advocacy division I oversaw the request to the CSO to give us the figures on groceries order items and non groceries order items. The CSO collects data for calculating information in the economy on a wide range of items, including food and drink. It sends us a list of all the items on which it collects data. We extracted from that all of the food and drink items bought in grocery shops which are on the list and the Central Statistics Office gave us the information in that regard. It was not a selective list, except for the fact that we did not include houses, electricity or other items on which the CSO collects information but it includes every food and drink item one can buy in a grocery store on which the CSO collects data.

With respect, representatives of the Central Statistics Office gave evidence to this committee which indicated that all items covered by the groceries order were not taken into account in the table Ms Boate has——

Ms Boate

I understand. The items on which they gave information are those on which the CSO collects price data. The CSO does not collect price information on every item. As a member stated, Tesco may sell 20,000 items in a store. The CSO collects price information on the ones that are the most common to every household basket because that is a representative sample. It would be the best statistical way of doing so. We collected——

Did the Competition Authority provide a selective list for the CSO?

Ms Boate

No. It provided us with a list of all items it collects.

The Competition Authority extrapolated the information from it.

Ms Boate

We took all the food and drink items out of it.

Is Ms Boate satisfied that the authority extrapolated all items or just a selected number of items that were covered by the groceries order?

Ms Boate

We double checked as we were going through everything to ensure that we took out every item. We have checked that with the CSO also to ensure that every food and drink item on which it collects price information was collected.

That is completely in conflict with what the CSO representatives told the committee.

I can read out what the CSO representatives said to us if the Deputy wishes.

Mr. Walsh gave evidence to this committee. I listed a number of items and asked him if prices were supplied on those items, and the answer was no.

Ms Boate

There are certain items on which the CSO does not collect data, mainly because they were not available at the time at which the basket was drawn up. I refer, for example, to items such as ciabattas and so on which were not commonly sold in grocery shops. There are many items sold in grocery shops which were not included.

That is not the matter about which the Deputy is asking. I have the evidence from the CSO representatives if anyone wishes to read it, although I do not wish to delay the meeting.

Dr. Fingleton

I am unclear as to whether we are talking about household necessities or the fact that——

It is stated on page 79 of the CSO submission circulated at the previous meeting that Mr. Walsh from the Competition Authority initially approached it. It was supplied with a full list of all items covered. With that information, the Competition Authority made a list of the items it interpreted as being covered by the groceries order and asked the CSO to carry out the analysis.

Ms Boate

Perhaps I missed a step in my explanation. The Central Statistics Office gave us all items on which it collects information, including electricity and so on, when assessing inflation. We took out all of the food and drink items one can buy in grocery stores. That is everything one can buy.

Not the household items.

Ms Boate

All the food and drink items but not the household items. We were examining the price of food and drink. We then had to assess which of those items would fall under the groceries order and those that would not. The groceries order, as members are aware, does not cover fresh meat, fresh fish or fresh fruit and vegetables. We put all of those categories under "not groceries order items" and the others we put under "groceries order" items. For the most part that was a very simple process, although we had to examine a few items. For example, bacon comes under items covered by the groceries order because, technically speaking, it has been cured. Sausages, on the other hand, are not covered by the groceries order.

We do not need to go into that because we established it at the last meeting. Deputy Hogan to continue.

It is clear that there is a divergence of view between the CSO and the Competition Authority regarding the items selected.

Ms Boate

I have read the transcript and the submission by the CSO and it verified that we did not send it a selective list but rather that we sent it a list under two categories.

I will give Ms Boate further evidence from the CSO. We have asked the CSO representatives to come back to the committee regarding Table 5 of the submission where the Competition Authority has made great play of the fact that there is a good deal of money to be saved by consumers. I will read out the CSO comment on the results of that table. It states that the baseline household budget survey figure used by the CSO is higher than that used by the Competition Authority and as a result the estimated household expenditure in June 2005 is €6.60 higher than the corresponding Competition Authority figure. It further states, however, that the extrapolated June 2005 figure under the authority's assumption regarding the effect of the groceries order is €12.19 higher than the corresponding line B and, as a result, the imputed weekly saving outlined by the Competition Authority of €9.25 should read €3.66.

That clarifies the position in no uncertain terms.

Ms Boate

Yes, I saw that information and the Deputy is correct in his description. The CSO has redone an analysis of Table 5 for the committee. The only difference between the CSO's methodology and the Competition Authority's methodology is that the former starts at a different date. It starts in 2000 whereas ours starts in 2001. That means the Deputy is applying a slightly different number.

The reason for the above divergence is accounted for by the fact that from January 2000 to January 2001 price inflation on food and non-alcoholic beverages, items not covered by the groceries order, was higher than price inflation on items covered by the groceries order. The CSO figures took into account the difference over the full period whereas the Competition Authority's analysis focused on the period from June 2001 to June 2005. Dr. Fingleton indicated in his submission that he can validate the CSO data, but there is a clear divergence of view in this respect between the CSO and the Competition Authority. The committee expects independent analysis to be carried out for it and that people in a statutory position, such as those in the Competition Authority, will interpret such analysis in the same way as those in another statutory authority. It also expects that when such people informs it the CSO data are validated for that to be the truth, but we find there is a problem in this regard. There is a complete divergence in the figures offered to the committee and presented in a serious submission to the Minister.

Dr. Fingleton

The table the CSO has redone for the committee is totally accurate. The Competition Authority's Table 5 is totally accurate. The difference between them lies in the starting date. If one picks 2000 as the starting date, one gets the lowest possible figure from the 18 years the groceries order has been in place. The year 2000 is a complete outlier, an aberration in the data series along the whole period. I contend it would be unreliable to use that data point. If one took 1998 as a starting date, the figure would be €547 million, if one took 1999 as a starting date, the figure would be €513 million and if one took 2001 as a starting date, the figure would be €577 million. All the adjacent years have figures in the region of €500 million and 2000 is an absolute outlier.

I would like to make one further point about the method we used. In putting this figure into the public domain the Competition Authority put in a figure that is a conservative or cautious estimate. We believe that the true outcome of removing the groceries order would be higher, not lower, than this figure. That is consistent with the underestimation of these benefits in other markets and with the inability to take account of full efficiency gains. Our method assumes that the full effect of the presence of Aldi and Lidl in the market has already happened, but they have huge expansion plans. That effect is likely to be bigger because of their expansion plans. Furthermore, this is an historical figure. In terms of projecting it forward, we did not multiply it by the growth in the market figure which would have inflated it further.

The figures presented to the committee and in Dr. Fingleton's submission are at variance with evidence given to this committee by the CSO. Dr. Fingleton explained where he is coming from in regard to assumptions he made which the CSO deliberately threw out as valid assumptions when it gave evidence to the committee. Mr. Garvey said it was the table in which he had the least confidence. I want to record that is the assertion he made.

Food price inflation is coming down and Dr. Fingleton asserts that even though that is the case there will be massive savings by making the policy shift he has advocated here in quite philosophical terms.

Dr. Fingleton has made an extraordinary presentation today. Most people, particularly those from State agencies, who are objective analysts come before this committee and present a document. The tenor of Dr. Fingleton's presentation is to debunk others. A number of claims, for example, the comfort he gave this committee in his assertion that there would not be a denuding of the shopping opportunities in rural towns, were made by way of assertion rather than supported by data. I have come to this debate with a completely open mind. As a committee, we have come to the conclusion, on the basis of all the evidence we have heard as practising politicians who have served in various public offices during the past 20 years, that we are not a vested interest. I take personal offence at the notion that anyone who has a view different from that of Dr. Fingleton is a prisoner of a lobby group. That is not the case. It is not helpful to the calm analysis of raw data. All of this is a maelstrom of statistics. It is of no comfort to the committee or to the listener or observer to say that the case would be different if one started somewhere else. All data is different when one starts somewhere else. We should deal with the basics and try to obtain a general overview.

As regards the general point made in the submission that those in favour of the retention of the groceries order are the lobby groups, that is not the case. The people who presented the evidence to us included the Society of St. Vincent de Paul, which is not known for its advocacy of big business or a non-competitive market, Combat Poverty Agency, CROSSCARE and others. They have genuine concerns. Perhaps they have all been duped into the thinking mode of big business.

The assertion constantly made in the submission is that the groceries order has caused inflation in food prices. One must go back to the raw comprehensive data which was presented to us by the CSO. As regards the inception of the groceries order in June 1987 — that is the figure given to us, although it did not come in until the following January — to the time of the submission, which was July this year, it is ludicrous to suggest that all but the past three years can be ignored as if it is an 18-year race, that this is year zero and that nothing will happen next year or the year after. However, if one looks at the data over nine of those years, the items covered by the groceries order endured less inflation than those not covered by it. What happened in the past couple of years when — as Deputy Hogan indicated and the delegation accepted — there was not massive inflation in grocery order food prices but when there was deflation in non-grocery order food products? I have tried to understand why that has happened. The delegation's explanation to the committee is that Aldi and Lidl have suddenly come into the market and that Dunnes and Tesco have reacted to this, which has squeezed margins where there was manoeuvrability. Is that what the delegation is saying? Evidence given to this committee stated that Aldi or Lidl would not be here if predatory pricing had been allowed. Given the narrow range of items sold by those chains, Tesco or Dunnes would have gone head to head with them and wiped them out of the marketplace before they became embedded. The reason we have competition and deflation, which the delegation is vaunting as an argument to get rid of the groceries order, is that the groceries order was there to nurture these new competitors in the first instance. That is the line presented to us. I would like to hear the delegation's analysis.

There are only two things we want to do as a committee. We want to ensure a competitive grocery market with choice and accessibility for all consumers. Price is the key issue but it is not the only one, although it is probably the delegation's only issue. Lower prices could be achieved if five hypermarkets were built in each province because that would provide economies of scales. However, access for the elderly and so on is needed and these are important issues. Is Dr. Fingleton's analysis confined to prices or did he consider access, choice, spatial planning and, importantly, the number of Irish products? Am I correct in assuming, following the presentation, that the provenance of the product is irrelevant in a competitive market? If one can source chicken, for example, in Thailand, that is the way it should be and the consumer can make a choice exclusively. If our food industry is killed off by competition, as were our footwear and textile industries, does Dr. Fingleton agree that this is the nature of the market? If that is his view, which is fair, the committee would like to know because we have broader considerations.

The other significant issue is predatory pricing. Dr. Fingleton asserted that the way to prevent predatory pricing is through competition law, not the groceries order. Does current competition law only enable action to be taken where companies are in a dominant position? Is it also the case that none of the retailers in the Irish market is legally in a dominant position and, therefore, a legal instrument is not in place to deal with predatory pricing?

Dr. Fingleton

I will address the final question first. The law on predatory pricing applies to dominant firms but it is not the only route to get at it because if a group of firms comprising, for example, Tesco and Dunnes Stores, lower prices together and later raises them, it is likely it could be caught under section 4 of the Competition Act.

It almost certainly would

Dr. Fingleton

If they did this individually, it is difficult to see how either of them could raise prices subsequently because they would still have to compete with each other.

However, they would kill off competition locally. For example, they could kill off Aldi and Lidl in Wexford and then resort to normal pricing. Is there a legal instrument?

Dr. Fingleton

Yes. We have done a great deal of work in recent years on retail and distribution markets. We have defined relevant markets narrowly in local areas. We have examined where consumers shop and we have conducted shopping surveys measuring where people came from, how far they travelled and what means they used to see exactly what choices are open to them. This is an essential part of our work on mergers and so on.

We take markets narrowly. We have stated to the committee previously that we believe the multiples are in a separate relevant market. Where there is only one multiple in a town, it is much more likely that it is in a dominant position. The Deputy will understand if I do not want to make categorical statements about who is dominant because it has important cost implications for business. However, our methodology is perfectly capable of dealing with local dominance issues.

Dr. Fingleton makes that assertion on the basis of an interpretation of the law on which the courts have never passed judgment. Second, he has no evidence of a case being taken to date that would give us comfort.

Dr. Fingleton

I make the assertion on the basis of the case law of the Irish and European courts, which states local markets are valid markets for competition analysis, and not on what we do.

What is local? Is it a town, county or region?

Dr. Fingleton

That depends. When we measure competition, we systematically examine what choices people have, their transport costs and their options in the market. That process of market definition is very much part of the work we do on mergers and so on and local markets are examined. For example, we received a complaint about predatory pricing in the newspaper market in Drogheda. We examined it and talked to all the customers. Many were local shops that advertise in the Drogheda Independent and they expressed the belief they were benefiting from lower prices and better circulation with no risk of prices being raised or of any business being driven out of the market. The complaint was made by a competitor.

Was it not that 65% of them held a dominant position?

Dr. Fingleton

That issue was criticised by Ms Tara Buckley from RGDATA.

I am asking if that was the result of the case.

Dr. Fingleton should refrain from mentioning the names of people who are not here to defend themselves.

Dr. Fingleton

If the Competition Authority had decided predatory pricing was occurring, the remedy would have been higher prices for advertising for retailers in the area and I believe that would have been the wrong outcome.

I wish to pursue this matter. Is Dr. Fingleton saying that if there was a prima facie case of predatory pricing such as the example I have given, the net result of which was cheaper prices for the consumer and the killing off of many stores, that would be all right?

Dr. Fingleton

That is an extrapolation. In the case of Drogheda, the market share of the firm alleged to be dominant was declining. It was quite clear, given another firm was entering the market, that there was vigorous competition. The Competition Authority has published a 40 page reasoned decision setting out the facts relating to that market. It is open to anyone wishing to challenge the decision to do so although so far nobody has done so.

My question was a general one. I do not know the details of the case in Drogheda.

Dr. Fingleton

I am trying to answer the Deputy's question as best I can by giving the details of the authority's most recent case of predatory pricing in which we have set out as clearly as possible the exact approach taken. I use that example primarily to show our approach to local market definition. We carefully examined whether advertisers, mostly shopkeepers in the Drogheda area, were offered choice by national newspapers, local radio stations and so on. That type of information is carefully analysed and we consult with retailers on it. We gathered a great deal of evidence in that particular case and have published it.

The Competition Act is the best instrument for dealing with issues of local dominance.

There is no single case which proves that.

Dr. Fingleton

Were the Deputy to give me an example of predatory pricing following which prices were raised that would be a valid criticism of the authority's work. The issue is not one of low prices as low pricing is good.

The issue is whether one offers competition.

Dr. Fingleton

Yes. The issue is not one of killing off rivals rather, it is the raising of prices afterwards. If prices are not raised——

Therefore, killing off the competition is okay?

Dr. Fingleton

Yes, if the competition is not——

That is the net issue. The Competition Authority view is that it is all right if a dominant retailer such as Tesco kills off all the other supermarkets by introducing predatory pricing if it maintains low pricing thereafter.

Dr. Fingleton

Yes.

It is all right if there is no other consumer choice but Tesco so long as that company does not subsequently increase its prices.

Dr. Fingleton

The issue of choice can be taken into consideration in the analysis. In the case of Drogheda, the retailers were offered an almost identical advertising product. We do take account of choice in such analyses. Clearly, if choice matters it then becomes part of the analysis. The authority's approach to predatory pricing is in line with international best practice. It is widely cited abroad. Part of our work is examining local markets and we are perfectly capable of dealing with this issue.

What is the Competition Authority's view of a dominant position? What percentage of the market would a business have to hold?

Dr. Fingleton

We would not define a dominant position as a specific market share.

Did the authority do so in the Drogheda case?

Dr. Fingleton

No. I would like to stress the importance of what is known as effects-based analysis, a system used by the authority considered to be a pro-business, pro-competitiveness and pro-consumer method of analysing competition. In that regard, we look at the actual effects on the market. A policy based on saying a firm is dominant if it has 40% market share would risk penalising successful firms whose market share is high because they are successful, are offering consumers a better deal or are innovative. I do not believe any member of the joint committee or any other person is suggesting we should adopt a policy that would penalise successful companies. We are required to go a step further during our analysis and always do. That further step is to ask what the effect is on the market. Is consumer price or choice affected? We do that in all our work. I am happy we can take account of all the concerns being raised as regards predatory pricing in the approach we use and that it is consistent with the case law of the European Court of Justice.

The Competition Authority is opposed to a monopoly, however.

Dr. Fingleton

Clearly, we are because that is our job.

That is what Deputy Howlin has been asking about in respect of Aldi and Lidl. I asked the question also. The information before the committee probably represents the true picture on the ground, namely, giving choice to the consumer.

I would like Dr. Fingleton to address that issue. An analysis of the full operating scale shows that the only glitch to arise in terms of significant divergence was in the past two and half years. He has indicated that this is because of the entrance of Aldi and Lidl to the market and the response to this. Is that a correct analysis of his position?

Dr. Fingleton

Yes.

Has he given any consideration to the presentation that was made to this committee, which argued that the only reason this competition occurred was because competitors were not suffocated at birth by predatory pricing by the giants?

Dr. Fingleton

The committee's report, at page 51, states that the removal of the groceries order would encourage entry into the market. The point about Aldi and Lidl being made today is inconsistent with what the committee's report from last November states. That was shortly after my appearance before the committee in November. Apologies, it was March.

Prices in the United Kingdom are much lower. Aldi and Lidl have entered the UK market. Therefore, it is not correct to state they would not have entered the Irish market at lower prices. However, a policy of keeping prices high in order to encourage people into——

Perhaps Dr. Fingleton could read the reference into the record for the sake of clarity. I believe it is paragraph 3, page 51.

Dr. Fingleton

Yes, the removal of the ban might make it easier for some new entrants to enter the Irish market.

Dr. Fingleton's comment was that the committee had accepted that it would bring new entrants into the market. Might it make it easier——

Dr. Fingleton

I stand corrected. It might make it easier.

One could sell at below cost for a long time to gain entry and increase patronage and so on.

Dr. Fingleton

I stand corrected on the precise quotation. A policy that keeps prices, for example, 10% higher than the competitive level in order to encourage new entrants into the market undoubtedly means we would have more Aldi and Lidl type entrants in the market. However, this would be at a high cost to consumers. If I had a choice, as a consumer, I would prefer to have the lower prices and the diverse retail environment that exists in Northern Ireland. Our fundamental argument questions why Irish consumers cannot have the lower prices and the range of choices people have in other markets. It is not an either-or situation——

Dr. Fingleton knows that is not a fair example.

Did Dr. Fingleton read the presentation to the committee from Tesco, which operates in the Irish market in both the Republic and the North, as regards that question? Did he learn that there is a divergence of price? Has he made an analysis based on this?

Dr. Fingleton

I have read it.

Does he believe Tesco is wrong in the presentation it made to the committee?

Dr. Fingleton

Companies come to us all the time when we are investigating issues and tell us stories about their costs.

Is Dr. Fingleton saying that evidence given by Tesco, as to the reasons for the disparity in prices between the Republic and the North, was not correct?

Dr. Fingleton

Competitive businesses will tackle their costs more effectively than less competitive enterprises. We do not——

That is not the question. We are doing an analysis of the presentations of evidence. Does Dr. Fingleton believe the facts presented to the committee by Tesco on the reasons there is a difference in prices in the two Irish markets were the real reasons?

Dr. Fingleton

I would only believe it if I could look at its books and see the margins Tesco is making in the Republic and in the North. That data, as the Deputy has correctly pointed out, is not available to us for policy analysis.

While we would like the data to be available, it would require changes in company law to achieve this. Is Dr. Fingleton stating, in the interim, that the companies which operate businesses in both markets did not present the truth to the Joint Committee on Enterprise and Small Business?

Dr. Fingleton

If the Competition Authority were to make a decision on a merger or to bring a case to court, it could not rely on evidence such as claims made by companies that are defending or arguing a position that affects them. The Competition Authority must examine independent data.

In its presentation to the joint committee, Tesco was entirely neutral on the issue of the groceries order 1987 and did not care if the order was accepted or rejected.

Dr. Fingleton

I accept that.

Tesco was a great deal more neutral than the Competition Authority on the issue.

Dr. Fingleton

Tesco might well be. However, the Competition Authority will not make more or less money depending on the future of the groceries order, but Tesco has an interest in the market. When an organisation or company that has an interest in a competition issue puts forwards its position as it sees it——

Would Dr. Fingleton disregard the presentations of all the operators in the market because of their vested interest?

Dr. Fingleton

I would question it. The Competition Authority would question rather than disregard their presentation and would seek independent evidence. The Joint Committee on Enterprise and Small Business did the State a good service by calling on Tesco to publish its data for the market.

On whose evidence should the joint committee rely?

Dr. Fingleton

The publicly available data are solid. The CSO data are solid reliable evidence. I think we are all agreed on this.

We are not——

Dr. Fingleton

I think we are all in agreement on the CSO data. We have two tables——

Dr. Fingleton decided to do something with figures.

I do not want to delay the proceedings by rehearsing the point made by Deputy Hogan but there is an extraordinary divergence between the recalculated table presented by the CSO, an organisation which is entirely neutral and the data which Dr. Fingleton selected in compiling Table 5 in the second draft document. In my judgment, Dr. Fingleton believes profoundly in his message to the joint committee and wants to present it in the most convincing way he can.

Will Dr. Fingleton advise the committee on the impact on Aldi and Lidl, if the groceries order were to be abolished in the morning? In his opinion would Aldi and Lidl survive in the market?

Dr. Fingleton

Yes, I see no reason they would not.

Does Dr. Fingleton believe we could create the circumstances that would allow for the return of monopolies, as existed prior to the 1987 groceries order? To put it in a nutshell that is what is at issue.

As I understand it, Dr. Fingleton's position is that as long as the prices are low, he does not care if other companies survive. Am I correct?

Dr. Fingleton

No, price is one element of the issue.

That is the only element that was covered in his presentation to the joint committee.

Dr. Fingleton

That is unfair. The Competition Authority clearly examined a range of issues, for example, choice——

Dr. Fingleton made an assertion about Britain not being affected, but no data to support it were included in the written submission. Where are the data to support that assertion? If the claim by IBEC is true, the matter is very serious. What is Dr. Fingleton's countervailing argument, other than looking into his heart and knowing that it will not happen? Few issues would have such social consequences. The joint committee is charged with weighing up the situation.

Dr. Fingleton

The countervailing argument of the Competition Authority is to point out that misleading——

Where are the data?

Dr. Fingleton

I will give the committee The Countryside Agency report. I would like to think that if people are giving evidence to the Joint Committee on Enterprise and Small Business, they are subject to a high degree of scrutiny.

They are, but Dr. Fingleton has not given the committee the evidence to debunk it. I would like to see such evidence.

Dr. Fingleton

To be precise, I said that no evidence had been produced by those claiming that particular phenomenon in the United Kingdom. Our job is to look at the effect of this on consumers and on competition in the market and we have done this. We have gone further and looked at the arguments as to the effect of this on convenience shopping, access and choice to consumers. The other side put out a series of often-repeated myths for which no evidence has been produced. The Competition Authority did some useful service by searching actively to try to find what evidence exists to support the claims of the vested interests arguing on the other side of this debate, to add what I would describe as factual data to the public debate. We cannot find any such evidence.

What about 1987? One does not have to go outside the country at all.

Dr. Fingleton

The argument that——

That is why the order was brought in, as Dr. Fingleton knows.

Dr. Fingleton

It is. However, I infer from your question that we agree that abolishing the groceries order would lower prices. That no longer seems to be the debate and is fairly widely accepted. It is implicit in several points in the report. The issue is——

Where in the report is it implicit?

Dr. Fingleton

For example, the committee recommends that the groceries order should not be extended to fresh fruit and vegetables because it could increase prices.

That is not the same point.

What Dr. Fingleton asserts is not in the report. He cannot make assertions willy-nilly on the basis of what he thinks is in the report. Is it in the report or not? I am surprised a person in his position would misinterpret the report to this extent on such a serious issue.

Dr. Fingleton

The Deputy will have to bear with me while I source the information.

I am sorry for delaying the meeting but this is important.

We will give Dr. Fingleton a chance to source the information.

Dr. Fingleton

Page 51 of the report states that the groceries order would increase price competition.

Where is that stated? It is not on page 51.

Dr. Fingleton

I may have made an incorrect note of the page. On page 51 the report states: "Because consumers are attracted by deep price cuts, the removal of the ban would intensify price competition between retailers".

That is a different point. What Dr. Fingleton asserted is not in the report.

Dr. Fingleton

We will have to agree to differ about the——

No. Dr. Fingleton made the assertion and he was wrong.

He twice made assertions to Deputy Hogan and me about points in the committee's report. He has now withdrawn both assertions.

I am glad Dr. Fingleton has clarified the position.

I wish to raise a point my colleague will also want to deal with, namely, the attitude of the Competition Authority to maintaining an indigenous food industry. Is the source of products, for example, footwear and clothing, a matter for no thought or consideration?

Dr. Fingleton

The authority has no statutory mandate to promote Irish products over and above other products or for the use of restrictions on competition to protect industry. That is not contained in the law. If we were to do that it would be——

If there was no food industry and all food was accessed cheaper internationally, would that be preferable?

Dr. Fingleton

That is not my view. The view of the authority is simply to consider the competition issues. If there is an effect on Irish produce or production, other policy instruments are in place to deal with this. The committee has a broader mandate than simply that of competition. However, while the authority considers the prices and choices available to consumers, it does not have a mandate to consider whether goods are Irish produced. As Ireland is part of the European Union, we have a view that cross-Border trade——

The authority does not have a mandate in that area.

Considerations regarding the origin of a product are not part of the authority's purview.

Dr. Fingleton

No. What we have done in this report, however, is to point out that this may have consequences for indigenous industry. That is not something on which we could base a decision but it is a matter of concern for this committee. We have pointed out in this regard that the food processing sector could face a severe crisis from international competition. I am in complete agreement with Deputy Howlin on this and it is a serious issue for this committee to consider.

I have stressed that international rather than domestic competition is the most significant problem. We should be concerned about this for the future to avoid the same problems that have affected the textile industry.

I apologise to members and delegates for the delays in today's proceedings.

At this stage the debate has been almost exhausted by my Opposition colleagues. I welcome Dr. Fingleton. I understand from what he has said on this and other occasions that he considers the groceries order a rip-off. This seems very much out of touch with the situation in other EU states, only three of which do not have some type of groceries order in place. I understand France recently strengthened its legislation in this area.

One must take into account that Ireland is a high price country. I do not know the source of the comparisons used in the authority's report. Did it consider Europe in its entirety? For an array of services in this State, including waste collection, professional services and insurance, we are way ahead of other EU countries. One cannot compare the Irish economy with that of Britain, a country with a population of 57 million. I do not agree with the authority's arguments in this regard. I travel regularly to the United Kingdom and I am aware it is difficult to find small convenience shops in rural areas.

I do not wish to be in total conflict with the delegation but we must consider this issue in a European context. If the vast majority of EU states have something akin to the groceries order, why should we not retain it? I draw the delegates' attention to an article in the Financial Times of Monday, 22 August which outlined Michael Heseltine’s warning that a proposal by the Office of Fair Trading to deregulate the magazine market in the United Kingdom will lead to the closure of local newsagents.

The delegation mentioned the enterprise strategy report. All those involved in producing that report had a vested interest in importing food for manufacture. I will not name the companies concerned but they have made an effort to discredit the agricultural industry by importing and selling a cheaper and lower quality product to the food sector.

The Competition Authority has not addressed the issue of supermarket own brands and associated questions of country of origin and place of manufacture. It is of major disadvantage to them that small corner shops cannot offer own brand products because they do not have the capacity to purchase in volume.

The groceries order has served the economy well since its introduction. It has saved the retail and manufacturing sectors and the agricultural community. Any interference with it will affect the textile and other industries, a danger Dr. Fingleton has acknowledged. We have seen what has happened in the electronics sector where the small retailers of brown and white goods are going out of business in face of competition from the multiples. At the time I was first elected there was a major debate about the ESB retail stores which have now been priced out of the market. People in rural areas may soon be forced to travel to Cork, Limerick and Dublin to purchase a television set.

Any interference with the groceries order will undermine the position of consumers and will ultimately result in Ireland becoming a dumping ground for surplus stock because of the inadequate quality assurance and traceability regulations in regard to much of the product entering the country. These issues are not part of the authority's domain but the delegation has said it can make an addendum to its report to include this information.

I have some further questions but the delegates may wish to respond to these points.

Deputy O'Keeffe has made the point that quality assurance, traceability and dates of manufacture are not currently regulated.

Yes. In addition, the Chairman's small shop in Mullingar will not have access to the own brand products which have become dominant in the market and are offered by Tesco, Dunnes Stores and all the main multiples. It is worth noting that the British retail sector seems to be in crisis. According to reports in the Financial Times, many major multiples such as Somerfields and Morrisons are in a mire of trouble and loss-making. Will we have the same situation? Will one foreign retailer dominate the sector in this country?

I welcome Dr. Fingleton and wish him well in his new position across the water.

This committee does not want protectionism. However, we do want a level-playing pitch for all consumers, which means more shops, choice, accessibility and, therefore, competition.

Perhaps Dr. Fingleton could explain to us how the Competition Act prohibits hello money. To my mind, there is hello money under a variety of other names, such as discounts, rebates, cheques, wage cost transfer for merchandising, etc. I would like to hear his view on the matter.

I agree with Deputy O'Keeffe. Some years ago, I visited Britain on behalf of the committee and met with representatives of groups such as the Countryside Alliance. The figures I obtained stated that some 40% of British villages were affected. However, I would be interested in the information Dr. Fingleton has and ask him to forward it to the committee.

I hope Dr. Fingleton will forgive me if I misrepresent him. However, his approach and analysis would suggest a bias in favour of a free-for-all and there have been no prosecutions. Does he believe in the law of the jungle, whereby the strong write their own rules? He has explained origins but much of this does not matter once something is cheap. There could be a very adverse fall-out if we were to go completely down that road. Perhaps I am wrong, but Dr. Fingleton's approach seems very much dominated by that thinking. He has endeavoured, in clothed words and garbed reasons, to make the worst reason appear better.

I welcome Dr. Fingleton. I was rather shocked to hear an advertisement for submissions by the Competition Authority, at the end of which it was stated that the authority agrees that below cost selling should go. That was not a very independent way of looking for submissions. It aired on radio shortly after our last discussion. It was rather biased to look for submissions in this manner.

Deputy O'Keeffe mentioned the closure of smaller grocers. This has occurred within six miles of my home where four grocers have closed in the past 12 months. There is huge competition at this time without the groceries order being taken away. Diesel is not available within six miles of my area as a result of the closure of two garages. Surely prices will rise if the bigger stores become even bigger, take over and have a monopoly? If one is a businessman with no nearby competition, one is inclined to increase prices because of a lack of competition.

Senator Coghlan spoke about the amendment of the groceries order. Dr. Fingleton said that between 15% to 18% of discounts were given. Has he proof of this? Is it legal? What has the Competition Authority done about the matter? This discount should have been put on the invoice from the start.

The other point concerns Dr. Fingleton's statement that prices at farm gate level have fallen. Is this because of imports? I am a farmer and if the farm gate price falls much further, the producers will not be able to remain in production and only foreign goods will be sold in this country. I would appreciate Dr. Fingleton's comments on these matters.

If the two Senators do not mind, I ask them to wait until the next round of questions. Dr. Fingleton has been asked many searching questions. As the joint committee wishes to conclude by 1 p.m. if possible, he should bear that in mind in his replies.

Dr. Fingleton

I will try to answer them quickly. Yes, many countries in Europe have below cost selling bans. However, our groceries order is not a below cost selling ban. It is a below the invoice price ban and the cost is far below the invoice price. The National Consumer Agency has stated that the difference between the two is 18%. Hence, if one wishes to look at it that way, our groceries order is 18% above a below cost ban.

Is Dr. Fingleton in favour of a below cost selling order?

Dr. Fingleton

I agree completely with the Chairman that a below cost selling order would be better than the groceries order.

Is Dr. Fingleton in favour of it?

Dr. Fingleton

I would be, if it could be designed in a way that would be easy to comply with and consistent with the Competition Act. It should be explored because it would be a means of passing on the discounts.

Dr. Fingleton is in favour of it.

Dr. Fingleton

Under those conditions, yes, if it could be done in a manner that imposed a low regulatory burden and passed on the gains quickly to consumers.

On a point of correction, France has modified its below cost selling ban, but has removed a feature that is similar to the below cost discounts. Hence, the French reform is in that direction. As to the point regarding the country of origin and traceability, the joint committee has highlighted this issue in its own report. This is an example of an instrument that can be used and which the Parliament of this country can use to promote Irish products and improve customer choice. It is about giving information to customers, which is not our job but that of the new National Consumer Agency. However, it is good that customers have information and the competition and mergers review group has stated that the provision of more information for customers was a better solution than having a groceries order if the objective was to prevent price confusion.

Unfortunately, the groceries order will not protect the processing sector from the big waves of international competition. If we wish to do so, we will be obliged to shut our borders to trade. This is a difficult message, but the groceries order will not be sufficient to do so. We are all agreed that we wish to keep employment levels in this country high. The Competition Authority's point is that sometimes the right policy in the short run is not always the right policy in the long run. We have a growing economy with high employment growth which can cushion some shocks. If we wish to prepare any sector to better deal with international competition, strong competition at home is a good policy.

I completely agree with Senator Coghlan. However, we do not want protectionism either and we want more choice for consumers. I am satisfied the Competition Act is capable of dealing with issues such as hello money. They would be covered as agreements under section 4 of the Act, but must be shown to have an effect on competition in the market.

Two of Deputy Callanan's questions probably would have been better addressed to the National Consumer Agency. It was the body that ran the advertisements and which has spoken about discounts. The issue of legality should be taken up with the Director of Consumer Affairs. The competition law cannot act because of the existence of the groceries order. Farm gate prices have been pushed to an extremely low level and have fallen in real terms. We see it with beef at present because each year it depends on the market. Regarding what is happening to international prices, we have been aware for a long period that farmers are more exposed to international competition than any other group. I do not think there is any difference of opinion.

Forfás carried out a survey which found that Denmark was the most expensive country with a groceries order. Finland and Sweden are much more expensive countries than Ireland. It appears that Dr. Fingleton engages in cherrypicking in terms of what he wishes to tell us because he ignores other European countries. I do not think the French Government has amended the groceries order in the way Dr. Fingleton suggested because I have been asked questions about it. As Dr. Fingleton is aware, no other country is as expensive as France for all products — beds, restaurants or hotels.

The amount of contradictory information coming from State organisations is unreal. The Forfás survey, which was carried out not long ago, concluded that Denmark, Sweden and Finland are more expensive than Ireland. This survey must have been available to Dr. Fingleton if he had carried out his research. If he thinks we are cherrypicking information, he is doing something similar.

I welcome Dr. Fingleton and the other representatives of the Competition Authority. I have no doubt that we are beginning from the same place and that we both want the same result. The committee should ask RGDATA and IBEC to give it details regarding the information they presented to it about how the abolition of the groceries order would drive small shops out of business. What documentary evidence do they have for this assertion? The committee's researcher could possibly analyse this evidence. What evidence is there for the statement that 70% of villages in the UK have no shops? Again, the evidence for this assertion could be analysed.

Dr. Fingleton's argument that the food processing industry would benefit from the abolition of the groceries order contradicts what he said on page 2 of his submission to the effect that the food industry is part of the group that requested the retention of the groceries order. In fairness, he then said that there had been instances where people had requested less competition but that competition had benefited them in the longer term. There is a valid reason for this. There is a popular opinion, which must come from somewhere, that the Wal-Marts of this world do close the "Mom and Pop" stores, which is worrying. In the short term, there might be an immediate gain but in the medium to long term, the country would lose out. Most members are concerned that competition would suffer in the short and medium term. We also hear that there is talk about giving grants to people in southern Italy to open retail shops in towns.

It is said that one in every £7 or £9 spent in the United Kingdom is spent in Tesco. I have no difficulty with a company having a particularly large share of the market but I do have a difficulty with it having a dominant share. How would a dominant share be defined? I think Dr. Fingleton referred recently to 65% as not being a dominant share. This appears to be a very dominant share. In the mobile phone market, which has not been mentioned here, Vodafone and O2 formed a duopoly until competition was introduced. It is very important to see the value of competition because we had the highest prices in Europe and were not getting the benefits that other consumers in other countries were getting in terms of dropped calls until we screamed and roared and insisted that the regulator introduce competition. I consistently raised the issue of the duopoly in the mobile phone market in the Seanad. It was an Irish takeaway because there were hundreds of millions of euro leaving this country every year in repatriated profits for companies operating a duopoly. We want competition and we are coming from the same place. The question is how we get to that place.

I wish Dr. Fingleton success in his new post. As the matter before us is a business matter, rather than a personal one, I hope Dr. Fingleton will not take offence at any of the comments as none is meant. I also hope the Minister is listening to the debate and that he will listen to his officials because I think he would have to be convinced by the arguments on this side of the House regarding the continuation of the groceries order for the foreseeable future.

As a former Minister of State with responsibility for trade, I am convinced by the arguments on this side of the House regarding the continuation of the order for the foreseeable future until convincing evidence is presented to reassure me the removal or watering down of it would bring about a situation where we could guarantee the future of small local and rural shops. This is not the case, as once this order is lifted, predatory pricing will arise and we will say goodbye to the small shops in Castlecoote and elsewhere.

We have no vested interests in this matter. I resent that a television programme or the Competition Authority can be seen as more significant in their views than the views of an all-party neutral committee that represents all interests throughout the country. If we think we could save €500 million without reducing services to the public throughout the length and breadth of rural Ireland, prices would rise. There would be a drop in prices at the time and an increase in due course. We would possibly have short-term gains but certainly long-term losses. The floodgates would be open.

In case there is a proposal to amend the order, I do not accept that passing on discounts would be very satisfactory because they will be given to the major multiples and not minor purchasers. This is significant. The committee's activities and the figures it has produced are doing the State some service in respect of insurance. We were not found to be wrong in the insurance inquiry and will not be found so in our inquiry into the groceries order. I appeal to my colleague the Minister to listen to the committee representing the people as opposed to officials who have for whatever reasons decided to go down this road. There has been a softening of opposition to the groceries order by some means fair or foul. Every method has been used. The topic of nappies does not arise as the courts threw it out of the groceries order of 1987. If people send 10,000 nappies to the Minister of Enterprise, Trade and Employment, Deputy Martin, it is irrelevant as they do not count in regard to the groceries order.

I wish Dr. Fingleton had more success concerning the meat industry and the monopolies therein. The softer option was to attack the 1987 groceries order compared to the harder option of taking on the vested interests of the big beef producers who are working in conjunction with one another to ensure prices are kept as low as possible for farmers.

Dr. Fingleton

I am enormously indebted to the Senator for his last comment as it gives me the opportunity to tell the committee that we have an outstanding case against the entire beef industry, which will be heard in the High Court in November. We have been pursuing it for the past four or five years and I am very happy that we have taken on what amounts to a cartel in that industry. Originally, the IFA had some scepticism about it but we have shown them it would not be good for farmers or consumers. We hope to prove this in the High Court.

It is not before time.

Dr. Fingleton

On Senator Hanafin's question regarding dominance, it can be established with a low market share, such as 40%. However, someone who has 60% or 70% might not be dominant. It depends on how much power they have in the market vis-à-vis their rivals. We examine the actual facts of the market, the hard evidence, to determine something rather than reach a knee-jerk conclusion that because someone has a high market share, they are dominant. This is consistent with what is the right policy for business. I believe business in this country is very happy with our approach of not penalising companies’ successes and, at the same time, being fair in identifying problems. The Senator raised the point about joint dominance. This is another possibility. We have supported ComReg’s decision regarding joint dominance in the mobile telephone market. It is possible for two firms with links between them and that are acting together in some sense to be caught under joint dominance. Section 4 of the Act means agreements are easier to catch and we would normally use that route but we have a second instrument to deal with the matter.

On the fear of Wal-Mart coming in and taking over or driving out "Mom and Pop" stores, there is a greater concern of this happening if prices are higher instead of lower. For the long term in Ireland, if we really want a policy that will encourage indigenous supply, we must try to ensure we get the balance right between having sufficiently tough competition and consumers getting a good deal and being at a threshold where it is not worthwhile for someone else to come in and take over the market due to an efficient local operation. The rapid penetration of Aldi and Lidl to the market should be a warning sign of what could happen if Wal-Mart entered the market. If the committee is concerned about the long-term future of the market, it is much more difficult for those companies to enter a tighter competitive environment than would otherwise be the case. The committee has pointed out that true independents have been driven out of the market during the period of the groceries order. We now have many symbol groups.

Before I joined it, the Competition Authority had licensed and certified distribution agreements, recognising that, in respect of Musgraves and BWG, there were efficiencies for groups of shops coming together and having a common purchasing policy. That is a good example of how an efficient market can resolve some of those issues and rebalance inequities between smaller shops and larger ones. We have made the same point about local radio stations with Independent Network News, which did not breach the Competition Act. Where we were presented with agreements between competitors or vertical agreements between retailers and suppliers, we have done our best to allow agreements that improve the efficiency of those smaller operators in the market. We will continue to do so.

On casual trading, it is my opinion that it takes place at a great advantage over established retailers who have to pay commercial rates, service charges and overheads. Although I am not against casual trading, it has an advantage. Does Mr. Fingleton believe there is a legislative void in respect of casual trading, or is there a lack of enforcement of the existing Casual Trading Act?

Dr. Fingleton

The Tánaiste asked the authority to undertake a study of the Casual Trading Act. It was asked to consider its impact rather than whether the Act was good legislation. The authority discovered a huge variance in how local authorities applied the Act. In larger local authorities, such as Dublin and Cork, where infrastructures and resources were available, by-laws had been introduced and had done all that was envisaged. Other local authorities that did not have sufficient resources may have had one person looking after casual trading for one hour per week. We identified this as an issue and my view is that if such an Act were passed again, the Oireachtas would do well to provide local authorities with a default by-law. If the local authorities wanted to vary the by-law, they could but a starting point would be useful and was lacking in this respect. That report is on our website and while it will not fully answer Senator Glynn's question, it is a matter we have examined. We have not examined whether this Act is the right item of legislation.

I ask Dr. Fingleton to focus on this situation because some casual traders are behaving quite provocatively. This is particularly true in the vicinity of amenity areas.

I thank the Senator. On behalf of the committee, I thank Dr. Fingleton and his team for coming to assist us in our deliberations on the groceries order. I wish Dr. Fingleton well in the future and look forward to assistance if it can be mutually agreed.

Dr. Fingleton

I thank the committee. When I joined the authority five years ago, there was no provision for a committee to examine the authority's work. I supported the introduction of that in the Competition Act 2002 and have enjoyed appearing before this committee, the Joint Committee on European Affairs and the Committee of Public Accounts. I have been treated with enormous courtesy and admire members' interest in the work of the authority. I wish the committee well in this and other deliberations.

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