I move amendment No. 3:
3. In page 2, before section 2, to insert the following new section:
2.—(1) In this section—
‘agreement', ‘decision' and ‘concerted practice' mean, respectively, an agreement, decision and concerted practice of a kind described in section 4 (1) of the Principal Act;
‘certificate' means a certificate under section 4 (4) of the Principal Act;
‘licence' means a licence under section 4 (2) of the Principal Act.
(2) (a) An undertaking shall not—
(i) enter into, or implement, an agreement, or
(ii) make or implement a decision, or
(iii) engage in a concerted practice.
(b) An undertaking that contravenes this subsection shall be guilty of an offence.
(c) In proceedings for an offence under this subsection, it shall be a good defence to prove that—
(i) the defendant did not know, nor, in all the circumstances of the case, could the defendant be reasonably expected to have known, that the effect of the agreement, decision or concerted practice concerned would be the prevention, restriction or distortion of competition in trade alleged in the proceedings, or
(ii) at all material times a licence or certificate was in force in respect of the agreement, decision or concerted practice concerned and, in the case of a licence—
(I) the terms and conditions of the licence were at all material times being complied with by the defendant, or
(II) subject to subsection (3) of this section, in case any terms or conditions of the licence were not being so complied with—
(A) those terms or conditions are terms of conditions that had been amended, or inserted in the licence, under section 8 of the Principal Act,
(B) the defendant was complying with the terms and conditions of the licence immediately before the making of such amendments or insertions, and
(C) the defendant began to take, within 14 days after the date of publication, in accordance with the said section 8, of notice of the amendment or insertion of terms or conditions aforesaid, all reasonable steps for the purposes of complying with those terms or conditions and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes,
or
(iii) subject to subsections (3) and (4) of this section, in the case of an agreement, decision or concerted practice in respect of which a licence or certificate has been granted and such a licence has been revoked or suspended or, as the case may be, such a certificate has been revoked, the defendant began to take, within 14 days after—
(I) in the case of the revocation of a licence or certificate, the date of publication, in accordance with section 8 of the Principal Act, of notice of such revocation, or
(II) in the case of the suspension of a licence, the date of the order of the High Court or, as may be appropriate, the Supreme Court providing for such suspension,
all reasonable steps for the purposes of ensuring that any arrangements that had been made and which were necessary for the implementation of the agreement or decision or, as the case may be, which constituted the concerted practice were discontinued and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
(3) The defence provided for by subparagraph (ii) (II) or, as the case may be, subparagraph (iii) of subsection (2) (c) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the date of publication of the notice concerned referred to in subclause (C) of the said subparagraph (ii) (II) or, as the case may be, clause (I) of the said subparagraph (iii) or, where appropriate, the date of the order concerned referred to in clause (II) of the said subparagraph (iii).
(4) The defence provided for by subsection (2) (c) (iii) of this section shall not be available to a defendant the doing of any act or the making of any omission by whom constituted the grounds for the revocation of the licence or certificate concerned.
(5) (a) An undertaking that is a party to an agreement, decision or concerted practice in respect of which a licence is in force shall comply with the terms and conditions of the licence.
(b) An undertaking that contravenes this subsection shall be guilty of an offence.
(c) Subject to subsection (6) of this section, where, in proceedings for an offence under this subsection, the terms or conditions of the licence which it is alleged were not complied with are terms or conditions that had been amended, or inserted in the licence, under section 8 of the Principal Act, it shall be a good defence to prove that—
(i) the defendant was complying with the terms and conditions of the licence immediately before the making of such amendments or insertions, and
(ii) the defendant began to take within 14 days after the date of publication, in accordance with the said section 8, of notice of the amendment or insertion of terms or conditions aforesaid, all reasonable steps for the purposes of complying with those terms or conditions and was proceedings with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
(6) The defence provided for by subsection (5) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the date of publication of the notice concerned referred to in paragraph (c) (ii) of that subsection.
(7) (a) An undertaking that acts in a manner prohibited by section 5 (1) of the Principal Act or which contravenes an order under section 14 of that Act shall be guilty of an offence.
(b) In proceedings for an offence under this subsection (being an offence which consists of the doing of an act in a manner prohibited by section 5 (1) of the Principal Act), it shall be a good defence to prove that—
(i) the said act was done in compliance with the provisions of an order under section 14 of the said Act (‘the first-mentioned order'), or
(ii) subject to subsection (8) of this section, in case any of those provisions were not being complied with—
(I) those provisions are provisions that had been amended, or inserted in the first-mentioned order, by another order under the said section 14 (‘the second-mentioned order'),
(II) the defendant was complying with the provisions of the first-mentioned order immediately before the commencement of the second-mentioned order, and
(III) the defendant began to take, within 14 days after the commencement of the second-mentioned order, all reasonable steps for the purposes of complying with the provisions so amended or inserted and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes,
or
(iii) subject to subsection (8) of this section, in case an order under section 14 of the said Act prohibited the continuance of the act concerned except on conditions specified in that order and that order has been revoked by another order under the said section 14 (‘the second-mentioned order'), the defendant began to take, within 14 days after the commencement of the second-mentioned order, all reasonable steps for the purposes of discontinuing the act concerned and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
(c) Subject to subsection (8) of this section, where, in proceedings for an offence under this subsection (being an offence which consists of the contravention of an order under section 14 of the Principal Act (‘the first mentioned order')), the provisions of that order which it is alleged were not complied with are provisions that had been amended, or inserted in that order, by another order under the said section 14 (‘the second-mentioned order'), it shall be a good defence to prove that—
(i) the defendant was complying with the provisions of the first-mentioned order immediately before the commencement of the second-mentioned order, and
(ii) the defendant began to take, within 14 days after the commencement of the second-mentioned order, all reasonable steps for the purposes of complying with the provisions so amended or inserted and was proceeding with due expedition on the date on which the offence is alleged to have been committed with the completion of any step remaining for those purposes.
(8) The defence provided for by subparagraph (ii) or (iii) of paragraph (b), or, as the case may be, by paragraph (c), of subsection (7) of this section shall not be available to a defendant if the date on which the offence concerned is alleged to have been committed is more than 2 months after the commencement of the order concerned secondly referred to in the said subparagraph (ii) or (iii) or the said paragraph (c), as the case may be.
This amendment introduces a new element to the Bill relating to offences in respect of breaches of the rules of competition. It is in accord with the Programme for Government that fines should be imposed in this area. This measure moves beyond the provisions of existing legislation under which the Minister could only take action to have a declaration in respect of anti-competitive practices. This amendment provides for offences and penalties in respect of breaches of the rules of competition.
This section provides that an undertaking which contravenes sections 4 (1) or 5 (1) of the 1991 Act shall be guilty of an offence. Those sections deal with anti-competitive practices and abuses of dominant position, respectively. In addition, non-compliance with section 4 (2) of the Principal Act, the terms of a licence, or section 4 (4), the terms of a certificate, will constitute an offence. An undertaking means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service. All agreements between undertakings which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State, or in any part of the State, are prohibited and void. In particular, it shall be an offence for an undertaking to enter into or implement an agreement which has as its object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State, or in any part of the State, contrary to section 4 (1) of the Competition Act, 1991; for an association of undertakings to make or implement a decision which has as its object or effect the prevention, restriction of distortion of competition in trade in any goods or services in the State, or in any part of the State, contrary to section 4 (1) of the Competition Act, 1991 or for undertakings to engage in concerted practice which has as its object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State, or in any part of the State, contrary to section 4 (1) of the 1991 Act.
Prosecution for such an offence shall be initiated under one of two headings. Where, on summary conviction, an undertaking is found to be guilty it shall be liable to a fine not exceeding £1,500 or where the undertaking is an individual, a prison sentence not exceeding six months, plus the fine, or one or either of those punishments will be imposed. Such cases would be initiated in court by the Competition Authority. The second form of prosecution would constitute a conviction on indictment. On conviction on indictment a fine of £1 million or 10 per cent of the turnover of an undertaking, whichever is the greater, will be levied by the court. Where the undertaking is an individual provision is made for a fine, plus a prison term not exceeding two years, or either of those punishments. Such cases would be taken by the DPP on behalf of the State on foot of a file prepared by the Competition Authority. There is also provision for penalties for a continuing offence in regard to summary convictions where the undertaking shall be liable on conviction to a maximum fine of £1,500 per day for each day on which the offence is continued.
The 1991 Competition Act was a radical sea change from earlier legislation. It prohibits and voids anti-competitive action unless clearance is obtained by way of certificate or licence from the competition Authority. Actions in the civil courts provide for reliefs including damages or, for the abuse of a dominant position, exemplary damages.
This section now takes matters further by introducing the concept of criminal sanctions, stiff fines and imprisonment for such offences. The proposed fines are tough and are meant to be. The intention of this Bill is to introduce stiff fines and is in line with the Programme for Government. The proposed fines in other criminal sanctions, therefore, constitute a very strong deterrent in non-compliance with our competition legislation in addition to existing civil remedies. I recognise that a higher level of proof will be needed in criminal actions. Conviction on indictment must be obtained after a jury has been convinced beyond reasonable doubt that such an offence has taken place. It is acknowledged that proof beyond reasonable doubt will clearly be more onerous in comparison with establishing in a civil case on the balance of probability that an offence has taken place.