Select Committee on Enterprise and Economic Strategy díospóireacht -
Thursday, 18 Jan 1996

SECTION 3.

Mr. R. Bruton

I move amendment No. 9:

In page 3, lines 5 and 6, to delete "notified under section 7".

This is a technical amendment to section 3 introducing the power for the Authority to provide for category certificates as heretofore it only had the ability to provide category licences. The words "notified under section 7" are superfluous and might lead to some confusion in that it might be thought that there was a necessity to notify individual agreements where a category certificate existed. In other words, if the Authority had made a decision in relation to categories which were exempt and had certified that, confusion might arise because of this wording about the need for individual application. The purpose of this amendment is to remove that uncertainty.

Mrs. O'Rourke

It is just a textual amendment?

Amendment agreed to.

Section 3, as amended, agreed to.

NEW SECTION.

Chairman

Amendment No. 9a has already been discussed with amendment No. 5a.

Mr. O'Malley

I move amendment No. 9a:

In page 3, before section 4, to insert the following new section:

4.—Any documents or other records, electronic or written, found in the possession of or under the control of a company or of any of its advisers, shall be admissible in evidence in a summary prosecution or in a trial on indictment for an offence under section 2 of this Act and shall be admissible in evidence against the body corporate or any of its Directors, managers, secretaries or other officers who may be so prosecuted and there shall be a rebuttable presumption against those in control of a body corporate that they authorised such anti-competitive or otherwise illegal activity under section 2 of this Act disclosed by such evidence.".

Amendment put.

The Select Committee divided: Tá, 9; Níl, 12.

Tá
Byrne, Hugh. Fox, Mildred. Leonard, Jimmy. Nolan, M.J. Ó Cuiv, Éamon.	O'Keeffe, Ned. O'Malley, Desmond J. O'Rourke, Mary. Power, Sean

Níl
Bell, Michael.	Dukes, Alan.
Boylan, Andrew.	Finucane, Michael.
Broughan, Tommy.	Fitzgerald, Brian.
Bruton, Richard.	McCormack. Pádraic.
Costello, Joe.	Ring, Michael.
Crawford Seymour.	Sheehan, P.J.

Amendment declared lost.

Mr. H. Byrne

I am again disappointed that the division bells did not ring in the Engineering Block. I was polite about this last week when I said it was probably coincidental that those affected were from Fianna Fáil. However, the same situation has arisen today despite my raising this a week ago. When will the division bells function in the Engineering Block so as to accommodate all Members of the committee.

Chairman

Your query has already been raised by a colleague and I have asked staff to look at the matter and correct the fault if possible. In the meantime, I suggest that Members are tuned into the correct monitor so they can follow proceedings in the event of the division bells in all sections failing. I would also suggest that it would be preferable if Members were present all the time for the debate so they would not have to listen for the division bells.

Mr. H. Byrne

Are you are suggesting there is no need for a monitor or bell? We should be reasonable.

Chairman

You are being disorderly, Deputy. As a convenor, you should know better; you should be here to monitor your troops.

Mr. H. Byrne

It is my business to ensure we are treated the same way as anyone else and this has not been the case. When will the bells be functioning properly?

Chairman

In your absence, I asked that the matter be dealt with and it will be dealt with.

Mr. H. Byrne

I propose we adjourn until the bells are functioning properly.

Chairman

I will not accept that proposal because it is out of order.

Section 4 agreed to.

Questions proposed: "That section 5 stand part of the Bill."

Mr. O'Malley

Section 5 is in many ways the kernel of the Bill because it gives broader rights of action. Most of the debate has been on these sections dealing with crime which were put in by way of amendment. They are illusory in the sense that they will not function as matters stand without any evidential backup. I welcome giving a power of action to the Authority and a power of enforcement to the Minister.

With the additional right of action now conferred on it, will the Authority have extra staff because this will entail much additional work? That was the reason I did not insert a section of this kind in the 1991 Act. At that time, the rules on public expenditure and embargoes on recruitment were more strictly enforced than appears to be the case now. I could not put in a section of this kind even though I was convinced of its desirability.

What is likely to happen is that the development of a substantial increase in the number of private actions, which we have seen over the last year, may go into reverse. Since the Authority will now have a right of action, everybody who may otherwise be disposed to take the proceedings will seek to get the Authority to do it for them. There are instances when that is legitimate and desirable; awful difficulties often stand in the way of genuine plaintiffs from time to time.

Mr. R. Bruton

I thank the Deputy for supporting this section. It extends the powers of enforcement to the Authority where, previously, reliance was essentially on a damaged party or ministerial initiation of enforcement. As Deputy O'Malley rightly says, many suppliers or customers, especially smaller ones, would have found considerable difficulty in initiating such actions.

The Government has discussed the issue of resources. We will be providing extra resources to the Authority to undertake this work as it is regarded as a priority by Government.

Mrs. O'Rourke

How many staff are currently employed in the Competition Authority and how many people does the Minister envisage to implement this sharper image for the Authority? What are the new staffing levels?

Mr. R. Bruton

The present staffing is made up of 15 people, which consists of the three members and 12 others. We envisage the addition of the director of enforcement and seven additional staff.

Mrs. O'Rourke

In this year?

Mr. R. Bruton

Yes, when the powers go through.

Mrs. O'Rourke

Supplying staff is often a tedious and long business. A commencement date on the Bill commensurate with the staffing needed to give it the proper powers would be desirable. Has the Minister thought about doing that?

Mr. R. Bruton

When the Bill is passed, these powers will be enjoyed by the Authority. The question of a commencement date for these powers was not envisaged.

Question put and agreed to.

Chairman

I propose to adjourn and resume at 2.30 p.m. in the hope that we can conclude the Bill at 5 p.m.

Sitting suspended at 1 p.m. and resumed at 2.30 p.m.

NEW SECTIONS.

Chairman

Amendment No. 10 is in Deputy O'Rourke's name, but Deputy O'Keeffe will move the amendment.

Mr. E. O'Keeffe

I move amendment No. 10:

In page 4, before section 6, to insert the following new section:

"6.—Section 9 of the Principal Act is hereby amended in subsection (1) by the insertion after ‘section 4 (2) or 4 (4)' of ‘or the refusal by the Authority to grant a licence or a certificate'.".

Mr. R. Bruton

The amendment proposes a right of appeal against the refusal of a licence or certificate. It has been deliberate policy to make the Authority a key agent in decisions on certificates and licences. Many precedents exist for refusing the right of appeal in respect of such matters. For example, in relation to An Bord Pleanála, there is no right of appeal except with regard to procedures. The same applies in this matter. There will be a right of appeal by way of judicial review of procedures.

Certification or licensing does not provide exemption from the law. Only the law can ultimately decide whether competition provisions have been breached. For example, the Authority must take action against a person if it believed he or she acted in breach of the legislation. The basis of the Bill is that the Authority is a key agent in making decisions on technical issues.

For example, the key technical issue in relation to licensing is to examine whether a breach of the law should be permitted on grounds of special technical efficiency and advantages which are created. These are issues of technical fact and it is up to the authority to decide whether an exemption by way of licence should be conferred. In common with planning law, no right of appeal is permitted in that regard. I do not intend to accept the amendment.

Amendment, by leave, withdrawn.

Chairman

I am sure the amendment may be re-entered.

Mr. Leonard

I move amendment No. 10a:

In page 4, before section 6, to insert the following new section:

"6.—Section 7 of the Principal Act is hereby amended by the addition of the following subsection:

‘(7) The Authority shall make its decision granting or refusing to grant a licence under section 4(2) within two months of a notification made under subsection (3).'.".

Mr. R. Bruton

I understand the desire for speedy decisions with regard to notification. The Authority is making a great deal of progress in dealing quickly with issues notified to it on which it must make decisions. However, if time restrictions are imposed, as envisaged in the amendment, there is a real danger that anti competitive agreements could get through by default if the time requirements were not met. I propose to shorten the time taken to make such decisions by way of regulation.

For example, the possibility of category certificates, for which the legislation provides, will allow the authority to speed up its decision making process. We could move towards a position where this type of time requirement is contained in regulations. However, while desirable in the long-term, it would be premature to impose it at this stage.

Chairman

On amendment No. 10a the Minister has explained that the matter will be dealt with by regulation. Is the amendment withdrawn on the basis of that explanation?

Mr. E. O'Keeffe

Yes.

Amendment, by leave, withdrawn.