Section 9 (5) of the Competition and Consumer Protection Act 2014 provides that the Competition and Consumer Protection Commission (CCPC) is independent in the performance of its functions. As enforcement matters generally are part of the day-to-day operational work of the CCPC, I, as Tánaiste and Minister for Enterprise Trade and Employment, have no direct function in these matters.
However, the CCPC has advised me that in 2019, the CCPC referred a file to the DPP in relation to an investigation into bid-rigging in the procurement of publicly-funded transport services in the south west region (including Limerick, Clare, South Galway, Kerry, North Tipperary and Cashel). The bid-rigging file sent to the DPP was the culmination of an in-depth investigation, involving a wide number of parties and multiple lines of enquiry. As is the case for the majority of cartel investigations in Ireland and across the world, this investigation took place over several years. The CCPC’s 2019 Annual Report (attached) provides further details of the CCPC’s investigation.
The detection, investigation and prosecution of cartels is one of the highest priorities for the CCPC. However, a cartel is the most serious breach of competition law. It is a criminal offence, which has a very high evidential standard of “beyond reasonable doubt”. This has obvious implications for the standard of evidence required to both open an investigation and for the CCPC to make the decision to prepare a file for the DPP. This is not unique to the enforcement of competition law in Ireland as the difficulties of proving anti-competitive behaviour to a criminal standard of proof are well recognised. By way of illustration, the Competition and Markets Authority in the UK has had five criminal convictions since 2008, the CCPC has had 35 since 2006, including 2 convictions in 2017 for bid-rigging in the commercial flooring sector. At present, competition law in Ireland only allows for a company to be fined if a court finds that there has been a criminal breach of competition law.
The Programme for Government commits to enabling regulatory bodies such as the CCPC to have greater use of administrative penalties to sanction rogue operators. Primary legislation is under preparation in my Department will incorporate the transposition of Directive EU 2019/1 (ECN+) and come into effect in 2021. This will result in the introduction of a number of significant changes to the current competition law enforcement regime in Ireland, in particular the requirement to introduce non-criminal financial sanctions for breaches of EU competition law or breaches of both EU and Irish competition law. The purpose of the Directive is to ensure that national competition authorities have the appropriate public enforcement tools in order to bring about a common competition enforcement area. This legislation will increase the tools at the disposal of the CCPC to take enforcement action against breaches of competition law.
CCPC Annual report