The Central Bank has a statutory function to regulate financial service providers in Ireland. Arising from this statutory function, the Central Bank can impose civil financial sanctions for non-compliance with regulatory requirements. The Competition and Consumer Protection Commission (CCPC) does not have an equivalent regulatory function and accordingly does not have the statutory power to impose civil financial sanctions.
I am aware that the Law Reform Commission published an Issues Paper entitled "Regulatory Enforcement and Corporate Offences" on 27 January 2016. The Issues Paper invited views on the supervisory and enforcement powers of the State’s main financial and economic regulators (including the CCPC) and the issue of civil financial sanctions was raised. I understand the CCPC made a submission to the Law Reform Commission on 19 September 2017 in response to the Issues Paper requesting the power to levy such sanctions. Any recommendations or proposals that may emanate from this exercise will be carefully considered by my Department.
My Department has obtained advice on the issue of civil fines from the Office of the Attorney General to the effect that civil fines are not provided for in Irish law for anti-competitive practices. This advice is based on Article 38.1 of the Constitution which provides that no person shall be tried on any criminal charge save in due course of law. Therefore, any national legislation to introduce civil fines that would lower the burden of proof from beyond reasonable doubt to the balance of probability would pose constitutional difficulties due to the protection afforded in Article 38.1 of the Constitution.
On 22 March 2017, the EU Commission published a proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. One of the Directive’s aims is to ensure that all National Competition Authorities are given the power to impose effective deterrent fines. The proposal is currently being debated at the Council Working Group on Competition and is also being considered by the European Parliament.
