Ms Isolde Goggin:

My understanding is that the grocery code of practice is now Government policy. It was in the programme for Government. That decision is done and dusted and it is being provided for in legislation. If we are collectively given the job we will go for it. It is not practicable to delay until the European Commission has necessarily done and dusted everything. I say that because there will be more evidence at that stage about what does and does not work. That is why we suggested the possibility of building a review period into the legislation because a year or two down the road one might have more solid evidence as to how one would get over these kinds of problems.

At the time we made the submissions there was no response except that the policy subsequently comes out and is developed. There are no individual responses to submissions because it is a public consultation to which we were submitting. We were trying to look at ways of making it more effective and giving it teeth. Among the suggestions we had was that if we carry out an enforcement under the 2006 Act one could apply for a declaration that a certain practice is illegal and get an injunction to stop people doing it again. If a private company that is affected by an unfair trading practice takes a court action it can get damages. We suggested that it be considered that double damages would be given because it would give more of an incentive for people to get over their reluctance. No retaliatory delisting is likely to be an element of a code of practice. As Senator O’Keeffe said, people use language in different ways and people can describe things in different ways, so there is always a possibility that something might happen and not be identified.

We looked at the possibility of limiting exposure to costs for plaintiffs in private actions. One could imagine that for a smaller supplier going up against a much larger retailer or a small retailer taking on a large supplier the cost of a private court action could be substantial. Another issue that has since been solved under the Competition (Amendment) Act 2011 related to the notion that if the Competition Authority took a case then someone could go straight in to seek follow-on damages without having to prove the entire case all over again. As the lawyers say, it would be a res judicata. At that stage the suggestions we were making were aimed at strengthening the existing legislation rather than the code of practice. I am sorry to say I do not have a good solution to the question of confidentiality versus having teeth.