Robert Troy (Longford-Westmeath, Fianna Fail) | Oireachtas source

I move amendment No. 88:

In page 58, to delete lines 30 to 43 and substitute the following: “15AF (1) The competent authority may, subject to this Act and any regulations made thereunder, and having regard to the fairness and efficiency of the procedures under this Part, Part 2C, Part 2E and Part 2G, prepare and make guidelines with respect to any matter provided for in or under this Part or Part 2C, 2E or 2G, including in relation to—

(a) the conduct of oral hearings,

(b) the imposition of administrative sanctions (including the factors applicable to any order or administrative financial sanction to be imposed under section 15X and the method of calculation of administrative financial sanctions and periodic penalty payments),

(c) the conduct of investigations,

(d) the general policies of the competent authority, and

(e) any matter prescribed by the relevant Minister under this Part, Part 2C, Part 2E or Part 2G.

(2) In making a decision under section 15X, an adjudication officer shall—

(a) have regard to guidelines, if any, made and published by the competent authority under subsection (1), and

(b) apply guidelines made and published by the competent authority under paragraph (a) and (b) of subsection (1) unless the adjudication officer considers that, having regard to all the circumstances of the case, there is a reason not to do so.”.

These amendments relate to the conduct of investigations. Section 15AF provides that adjudication officers are bound by ministerial regulations when making decisions.

However, there was no obligation that adjudication officers should have regard to any regulations or guidelines that may be made by the competent authority. As adjudication officers are acting under the delegated authority of the competent authority, there are some guidelines of the competent authority that the adjudication officers should take into consideration in carrying out that delegated function while still maintaining their independence as an adjudicative function. One example is guidance, which the CCPC is preparing on foot of stakeholder consultations, on a methodology on how adjudication officers should go about calculating an administrative financial sanction they intend to impose on foot of a decision taken. In the interests of transparency and giving some legal certainty to undertakings, the use of a common methodology on matters to be considered and how such a calculation should be undertaken by adjudication officers is something that they should be bound to take into account. However, that methodology would not, in itself, lay down what level of administrative financial sanction should be imposed. This ensures that adjudication officers remain independent in their duties in that regard. There are also other guidelines an adjudication officer should have regard to, such as how an oral hearing should be conducted.

These amendments are intended to clarify that, while remaining independent in their function of considering the results of an investigation and making a decision on whether an infringement of relevant competition law has occurred, adjudication officers should have proper regard to relevant guidelines on how they should conduct their decision-making role. Amendment No. 88 clarifies the text in section 12(1). Amendment No. 89 deletes the existing subsection (3), with amendments Nos. 90 to 92, inclusive, being consequential renumbering of the remaining subsections. Amendment No. 93 expands the provision in section 15AG to allow authorised officers, as well as competent authorities, to follow such procedures for the conduct of an investigation as they consider appropriate, subject to the guidelines or other rules that may be in place regarding investigations. Amendment No. 94 is consequential to the inclusion of authorised officers within this provision.