Ms Clare McNamara:

I thank the Chair and the committee for the opportunity to discuss the scheme of the Bill. I am joined by my colleagues, Gráinne O’Carroll and Seán Smith. We very much welcome the opportunity to contribute to the committee’s scrutiny of the scheme and to assist it in any way we can. I will outline the background to the scheme and set out its main provisions after which we look forward to hearing the members' views and answering questions.

The Bill has three broad aims: to transpose the ECN+ directive which will make the CCPC and ComReg more effective in overseeing and enforcing competition law; to introduce other powers additional to the EU directive to assist in this regard; and to do so in a way which establishes a clear and uniform regime for businesses and national competition authorities so as not to have differing requirements under national and EU law.

In terms of the background to the scheme, it is useful to recall some important milestones along the way. In 2013, the European Commission began its assessment of the functioning of Regulation 1 of 2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the treaty. The Commission highlighted divergences in national powers, procedures and sanctions available to national competition authorities, which has resulted in uneven enforcement of EU competition rules. It is important to note that the Commission made direct reference to the inability of Irish NCAs to impose civil fines.

Arising from the findings of the Commission communication and following additional stakeholder engagement and consultation, the Commission presented its formal proposal for a directive on 22 March 2017. It was adopted and subsequently published in the Official Journal of the European Union on 14 January 2019 with a transposition deadline of 4 February 2021. As the directive introduces the concept of administrative sanctions there were constitutional matters that had to be considered before the general scheme could be finalised. The directive also introduces other measures that are novel in the Irish legal context such as periodic penalty payments, interim measures and leniency provisions. Legal advice was needed on these also in order to progress the general scheme.

Given the time limitation, I ask the committee to please excuse me for not going through the scheme provision by provision, but I will summarise as far as possible. The scheme aims to ensure the full and accurate transposition of the ECN+ directive. Parts 1 to 7, inclusive, of the scheme of the Bill deal directly with that transposition.

Part 2 of the scheme deals with the competent authorities themselves, including their independence and resourcing, as well as ensuring they conduct their investigations in accordance with the fundamental rights set out in the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

Part 3 of the scheme deals with investigations, including powers to inspect, requests for information and powers to summon witnesses. This Part also deals with, in head 13, the concept of interim measures which is where the competent authority, if concerned that certain behaviours or actions could result in a very serious breach of competition law, can impose interim measures seeking the ceasing of such practices in advance of the completion of the overall investigation. The remainder of this Part of the scheme covers such matters as expedited appeals against the imposition of interim measures, the statement of objections and actions arising from same, structural and behavioural remedies and binding agreements or commitments.

Part 4 of the scheme is entitled sanctions and covers administrative fines, including their calculation, maximum amounts, court confirmation of fines, the appeals system and the concept of periodic penalty payments.

Part 5 of the scheme covers the immunity programme, incorporating the leniency programme, and sets out the process for immunity from administrative fines, the conditions whereby such fines may be reduced, the general conditions for leniency, the forms of leniency statements, markers for application for immunity, summary applications for leniency and the interplay between applications for immunity from administrative fines and sanctions on natural persons.

Part 6 of the scheme covers mutual assistance. All heads in this part set out the requirements of the competent authorities in terms of co-operation with competent authorities in other member states.

That includes requests from other member states for the notification of preliminary objections or the enforcement of decisions such as administrative sanctions or periodic penalty payments. Part 7 of the scheme sets out the procedural provisions such as the role of the competent authorities before the courts, the access to files and admissibility of evidence.

Part 8 of the scheme covers provisions unrelated to the transposition of the directive. These heads deal with such matters as creating a criminal offence in the case of bid-rigging at the request of the Competition and Consumer Protection Commission, CCPC, and recommended in the Hamilton review, powers in the area of covert surveillance as well as giving it additional powers to allow for the taking of summary prosecutions in the event of gun-jumping in mergers. Some of these heads also clear up some inadvertent errors in existing legislation such as correcting cross-referencing errors.

I am happy to discuss the provisions of the scheme in more detail and to respond to questions from members of the committee.