Ms Isolde Goggin:

I thank the Chairman and the committee members for inviting us to appear before them. We are very pleased to be here on the occasion of the Cemetery Management Bill 2013. I am accompanied by my colleague, Mr. John Shine, who is the director of our advocacy and market intelligence division, and Ms Haiyan Wang, who is the head of investigation in our competition enforcement division.

We are a relatively new organisation having been formed at the end of October 2014 from the amalgamation of what was then the Competition Authority and the National Consumer Agency.

The mission of the commission is to make markets work better for consumers and businesses, and our vision is for open and competitive markets where consumers are protected and empowered and businesses actively compete. We have brought together the competition and consumer protection roles of the two legacy organisations.

I will outline our past involvement in the sector and will move on to our view on the question of regulation. Funeral-related services are a bit different from run-of-the-mill services that people buy. A lot of the advice to consumers on our website, www.ccpc.ie, is to shop around, but one cannot say that to somebody in a situation of bereavement, as they are very sensitive purchases that consumers have to make in very difficult and stressful circumstances. They may be particularly vulnerable and be unsure of what they need to do. They may be very dependent on the service provider, which is normally a funeral director or a provider of cemetery services, to guide them through the process. As such, it is very important to have transparency and compliance with competition and consumer law in the sector.

From an enforcement point of view, the commission conducted a detailed investigation, over a number of years, into alleged anti-competitive practices by Glasnevin Trust. This was concluded to our satisfaction in March 2015 with the agreement of Glasnevin Trust to a number of remedial measures. Details of the case are available on the website, but I will summarise the main aspects. The case arose from a complaint received in November 2011 in which it was alleged that Glasnevin Trust and its subsidiary, Glasnevin Cemetery Monument Works Limited, GCMW, were engaged in anti-competitive practices which were designed to put competing headstone providers, in particular, at a competitive disadvantage. It was alleged that this amounted to an abuse of dominance by the trust, contrary to the Competition Act. We carried out a detailed preliminary assessment and, subsequently, a formal investigation. We engaged with Glasnevin Trust and sought and secured a number of remedial measures from them. The measures related to the provision of burial plots, headstones and headstone foundations and were designed to mitigate the alleged anti-competitive practices, ensure the protection of consumers and increase transparency.

The measures included the requirement that Glasnevin Trust make its prices more transparent to consumers, making it easier for consumers to find a price list for burial plots and foundation fees on its website and in its offices. In addition, given that many funeral directors were acting on behalf of the bereaved families, Glasnevin Trust was required to take measures to ensure that funeral directors informed consumers of the separate cost of the foundation fee, because the degree of transparency around the foundation fee had been an issue. Before applying for burial services in Dublin City Council cemeteries, funeral directors were required to confirm to the council that they had informed consumers of the foundation cost. Third, Glasnevin Trust was to treat competing headstone providers in an equal and non-discriminatory manner in terms of waiting times for permits and foundations and access to the cemetery. Finally, the trust was to allow competing headstone providers to advertise in their promotional brochures subject to payment of the same fees as would be paid by GCMW, its own subsidiary, for the same advertising. Based on these measures, we were satisfied to conclude the investigation in early 2015 without any further action being required. The commission also corresponded with the Irish Monumental Firms Association, setting out our position on the issues that had been raised.

Mindful of the potential vulnerability of consumers at a particularly stressful time, we also provide information to consumers in a dedicated area of our website called "Planning a Funeral" and we have recently added material relating to succession planning. We operate a helpline for consumers which deals with over 50,000 contacts per annum, from very general inquiries to specific complaints alleging breaches of consumer law. On average we get some ten contacts per annum on funeral-related issues. There is no pattern in this respect and the issues raised seem to be one-off issues. We have not received anything to suggest there are substantive issues relating to breaches of consumer law.

That is the history of our involvement in the sector from the point of view of competition and the consumer. Our remit covers the entire economy, so if there are competition or consumer issues we are already there to deal with them. On the necessity for regulation, the purpose of the Bill is to establish a cemeteries regulator to provide for the licensing of cemetery authorities and to specify management stipulations for such authorities, to promote competition and to provide for related matters. Competition law and consumer welfare are already within our remit.

We have no information that would indicate there are substantive issues that merit the creation of a new regulatory authority. That is not to say that issues causing detriment to consumers might not exist. Rather, that we do not believe a sufficiently strong case has been made to justify the proposal for a specific regulator. As a general principle, we believe regulation should be adopted only as a last resort where there are very serious shortcomings in the sector and in circumstances where existing measures have proven incapable of addressing such issues. Regulation can go too far. It can impose restrictions on entry to a market that can actually damage competition, leading to cost increases, inefficiencies, lower service quality and general detriment to consumers. Regulation must be paid for. My colleague from the Department of the Environment, Community and Local Government mentioned that it might cost the Exchequer. In my experience, however, a regulator for a very specific sector is usually paid for by a levy on industry or on businesses in the sector. That leads to increased costs and these may outweigh the benefits. We recommend that any proposal to introduce new regulatory structures should be progressed only after very careful consideration of the necessity for and implications of such an initiative.

I will now turn to a couple of specific concerns that strike us in regard to the current proposals. We understand the key concerns informing the Bill relate to alleged anti-competitive practices in the cemetery industry and, in particular, Glasnevin Trust's engagement in ancillary commercial activities, namely, commercial activities in which there are also other firms engaged. There is a danger of duplication of existing statutory functions. We are the statutory authority with responsibility for enforcing competition law and consumer law in the State. We very much urge anybody who has any concerns about potential breaches of either competition or consumer law to bring them to our attention. We have the power to investigate and we have done so in the past. The Bill envisages a role for the proposed regulator that would duplicate some of the statutory functions.

Parties have a right of private action before the courts. As a result, it is not always necessary for a regulator to act on behalf of aggrieved parties. Parties can take action themselves, certainly in regard to competition law and some aspects of consumer law.

On effectiveness and proportionality, an issue arises regarding the coverage of the proposed Bill. It defines a cemetery authority as being any company, committee or body - other than a local authority, a town or borough council or an ecclesiastical authority - that is engaged, pursuant to statute or otherwise, in the management, operation or occupation of a cemetery. Our understanding is that Dublin is a specific case. Many of the cemeteries outside the Dublin area are either local authority owned or ecclesiastically owned and consequently would not be covered by the Bill. Within the Dublin area, it seems the impact would mainly be on Glasnevin Trust.

The Bill proposes to restrict the regulated entities with charitable status from engaging in ancillary commercial services at cemeteries. Again, Glasnevin Trust appears to be the only cemetery operation with charitable status in the Dublin area. Engagement by charitable organisations in commercial activities is not, in itself, anti-competitive. We must bear in mind that operating a cemetery is, by its nature, a very long-term business. In some cases, the trusts or organisations involved are required to maintain the cemetery in perpetuity. Therefore, it does not seem unreasonable for the operator to try to find some kind of ancillary commercial activities to fund the maintenance of cemetery grounds that perhaps no longer generate sufficient income from burial plots, particularly the older ones. The funding requirement is likely to be higher for cemeteries of an historic nature and they generally require more maintenance. They are not so easily maintained as the modern ones.

As I mentioned when talking about the four measures that had been agreed with Glasnevin Trust in order to promote competition and protect consumers, those concerned have undertaken to treat competing headstone providers in an equal and non-discriminatory fashion. We would be very happy to engage with any of the other cemetery operators if similar issues arise elsewhere and explain to them how they can meet similar requirements.

Regulation should not be an end in itself. In considering any proposals for additional regulation, any perceived failings in the sector should be clearly identified. It should be clearly demonstrated that such issues cannot be adequately addressed within the existing legislative environment before we contemplate additional regulation. Any such regulation will come at a cost. No matter how it is constructed, it is likely in the end to be borne by the consumer.

We think that any proposal for further regulation would merit careful consideration and the conduct of a regulatory impact assessment.

In regard to the cemetery sector, we are of the view that the case for further regulation has not been sufficiently articulated and that further examination would be required before proceeding any further.