Joint Committee on Enterprise, Trade and Employment calls for national authorities to have adequate resources to implement fully new powers in Competition Bill 2021

Committee Chair Maurice Quinlivan TD said: “Consumers and businesses benefit from competition through greater choice, lower prices and better-quality goods and services. When competition laws are broken, consumers suffer and businesses can be affected by trading difficulties along with increased costs. Effective enforcement of competition law is necessary to guard against illegal business practices.”

Deputy Quinlivan pointed to the Hamilton Review Group which last year considered Ireland’s ability to combat economic crime, identified weaknesses in legislation and in the resourcing of bodies charged with preventing illegal practices and enforcing the law.

“Given the dependence of Ireland for so much of its economic activity, employment and tax revenues on the multi-national sector, it is important that Ireland is seen to have a credible infrastructure to deter and address economic crime. The threat of enforcement must be real and the sanctions must be appropriate,” he said.

The General Scheme of the Competition Bill 2021 was referred to the Committee for pre-legislative scrutiny by An Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar TD on 9 December 2020. The Bill aims to transpose EU Directive (EU) 2019/1 – the European Competition Network (Empowerment) Directive – and to provide for other matters, notably osnes arising from the Report of the Hamilton Review Group.

The Committee held two meetings in February 2021, with officials from the Department of Enterprise, Trade and Employment, and then with representatives of the Competition and Consumer Protection Commission (CCPC) and the Commission for Communications Regulation (ComReg).

In its report, the Committee identifies 17 Key Issues arising in the draft Competition Bill. Among the issues identified are:

·       In parts, the General Scheme distinguishes between CCPC and ComReg as competent authorities. Some Heads make specific provisions for the CCPC, while others refer to a “competent authority”. The Committee believes it is important that these distinctions do not result in an incomplete transposition of the ECN+ Directive;

·       In relation to privacy, the search and seize powers included in the General Scheme may create a conflict of laws between Constitutional, EU and International human rights law, as formalised in the EU Charter. At the drafting stage, the Committee says it may be necessary to ensure an obvious distinction between the powers arising from EU law from those coming from domestic law;

·       As currently drafted, the coming into effect of structural and/or behavioural remedies imposed under the General Scheme would not be contingent upon confirmation by the Court. The Committee believes this may create constitutional issues with regard to the administration of justice if the remedies are deemed to be punitive in nature;

·       The apparent absence of a right to appeal a decision to impose periodic penalty payments may be seen to affect the fundamental rights of those affected;

·       As currently drafted, the General Scheme does not specify the offences for which covert surveillance may be conducted;

·       As currently drafted, the General Scheme does not appear to address how the surveillance powers proposed will operate, including the level of oversight and compliance with the minimum requirements for the interception of communications in criminal investigations as identified by the European Court of Human Rights.

Deputy Quinlivan said: “The Committee generally welcomes the provisions included in the General Scheme, considering that they are an important part of the State’s overall approach to combatting white-collar crime. We have identified a number of key issues which we believe need to be considered in drafting the Bill.

“The Committee is particularly anxious to stress the importance of the national competition authorities – the CCPC and ComReg – having adequate financial and other resources to implement fully the new powers and obligations that are being assigned to them.”

The report Pre-Legislative Scrutiny of the Competition Bill 2021 is available on the Oireachtas website.

The Joint Committee on Enterprise, Trade and Employment has 14 Members, nine from the Dáil and five from the Seanad.