Ms Isolde Goggin:

I am chairperson of the Competition and Consumer Protection Commission. I am joined by Mr. Brian McHugh who is a member of the commission with responsibility for our competition enforcement and mergers functions. I thank committee members for the opportunity to speak to them today and to provide our views on the competition (amendment) Bill 2021.

As the primary enforcement body for competition law, both the CCPC and our predecessor, the Competition Authority, used all their powers and resources to investigate suspected anti-competitive practices, and bring those damaging practices to an end. In doing so, we have built up a strong record of enforcement. However, developments in enforcement mechanisms have left Ireland out of step with the rest of Europe. Our ability to act is grounded in our statutory powers and, therefore, it is essential that those laws provide the CCPC with the right enforcement tools to effectively deter, detect and address white-collar crime relating to competition law. This Bill provides a significant opportunity for major change and will enable the CCPC to be more effective for the benefit of consumers, businesses and the economy as a whole. However, the devil is in the detail and the specifics of how this European legislation is transposed will determine how effective it is.

Turning to the CCPC’s enforcement powers, competition law investigations are built on physical and digital evidence, and they require in-depth economic and legal analysis. We have consistently used our current powers to challenge anti-competitive practices in a wide variety of sectors. We secured Ireland’s first conviction for bid rigging and we recently referred a file to the Director of Public Prosecutions, DPP, into potential bid rigging in the procurement of publicly-funded transport services. Last year, we issued preliminary findings against a number of businesses in the motor insurance sector and most recently we secured a High Court order in respect of a commitment agreement with Ticketmaster.

We have a substantial enforcement track record but there are areas where we could have done more if we had the same powers as other competition agencies in the EU. For example, the most the CCPC can achieve at present, in a significant number of competition cases, is to seek commitments that the business will cease the practice or behaviour and not do it again. If we cannot obtain commitments ourselves, we can apply to the courts for a declaration that the behaviour is unlawful and obtain an injunction. In our view, this is not an effective deterrent to practices that harm competition and, ultimately, consumers.

Unlike other competition agencies, the CCPC cannot impose financial sanctions for breaches of competition law. Also, we cannot operate a leniency programme, which would allow for the reduction in fines when a business provides evidence that it has participated in a breach of competition law. Leniency programmes encourage companies to come forward with evidence and result in more effective, and efficient, investigations and enforcement.

I would like to speak about our investigative powers. Secret cartels are extremely damaging and are therefore considered a serious breach of competition law. This type of activity has a very harmful effect on consumers and the wider economy, as any or all of the following can happen as a result of businesses coming together to agree prices or to share out a market between them: prices go up while efficiency, innovation and the options available to consumers go down. They are also the most challenging breaches to detect and investigate as, by their nature, they involve a secret conspiracy. The parties involved often make a considerable efforts to hide their involvement from their customers and, indeed, from the CCPC. International experience has shown that cartelists have become more sophisticated in using electronic communications technology and social media apps to co-ordinate their behaviour. Indeed, many cartelists work diligently to avoid leaving a paper trail and only communicate verbally on their mobile phones.

For this reason, the CCPC is seeking investigative and surveillance powers which are appropriate to detect white-collar crime. We are very aware that the powers we seek must be balanced with safeguards for the rights of the individual. Currently, for the CCPC to search a premises, we must present sufficient evidence to a judge in order to obtain a warrant and we anticipate this level of judicial oversight will be maintained in our new powers.

As regards its implementation, this Bill will allow the use of important enforcement tools commonly used across the EU for the first time in Ireland. The CCPC believes that giving us these enforcement tools will fill a significant gap in the existing competition law enforcement regime in Ireland. The detail of how the regime works is crucial in ensuring that the legislation is effective. From our experience, we know that for there to be a meaningful deterrent, the threat of enforcement must be real and go beyond reputational damage. The CCPC is of the view that we require the power to: adopt infringement decisions; grant immunity from or reductions in fines; make orders; grant remedies; and impose fines in respect of breaches of competition law, subject to the appropriate judicial oversight.

As chair of the CCPC, and previously chair of the Competition Authority over a number of years, I can confidently say that we have spent many years enforcing the law to the best of our ability. I can assure members of the committee that the views put before them today come from much consideration over this time.

I firmly believe that the competition (amendment) Bill 2021 is a once in a generation opportunity to reform Irish competition law and align our enforcement regime with the rest of the EU, something that is long overdue. These are major changes and the detail of the Bill will be very important if we are to realise the full potential of these reforms and enable the CCPC to be more efficient, effective and impactful when tackling white collar crime in Ireland.

We recognise the CCPC must play its part in this, and in this regard we have been working very closely with our parent Department, the Department of Enterprise, Trade and Employment, both in terms of working through the detail of the legislation and considering the impact such powers will have on our organisation, particularly in ensuring there are sufficient resources, expertise and oversight. Our mission is to make markets work better and we are committed to playing our part in ensuring that this legislation benefits consumers, businesses and ultimately the economy.

We are happy to take any questions and further explain our views in more detail.