Denis Naughten (Roscommon-Galway, Independent)
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Keeping work away from the courts is the objective of this legislation. That is what we are trying to do. We are trying not to go down the criminal sanction route. This has nothing to do with the EU. In respect of legislation for civil sanctions, the threshold across the regulators has been up to a maximum of 10%. If we go over that threshold, we are very likely to find ourselves in a situation where the courts will interpret this in the criminal rather than the civil realm. Instead of these being dealt with as administrative sanctions, they will end up in the courts. The objective of this is to ensure we keep as much work out of the courts as possible.

The point I make about Europe with regard to this is that our thresholds across our regulators are 10%. At EU level, the thresholds are 10%. If it was the case that we were working at a higher threshold or if they were working at higher at European level, we could consider that in the context of the amendment but the Deputy’s amendment is trying to deal with proportionality. This legislation deals with that issue. We are talking about the difference between 10% and 12%. Going over 10%, whether to 10.1% , 10.5%, 11% or 12% is irrelevant, is likely to bring us down the criminal sanction route rather than administrative sanctions. We are trying to keep these out of the courts and reprimand companies that are not complying with the conditions of their licences. The €50,000 cap is separate. That applies where a decision is taken not to introduce a penalty but where there has been a cost involved in carrying out the investigation and the maximum that can be charged in that respect. To protect businesses, and particularly smaller operators, a cap is put on any administrative recovery cost that would be imposed by the CER. The way the legislation is drafted accurately reflects the Deputy’s concerns about it. The objective is the same as the Deputy’s, namely, to keep these issues out of the courts at an administrative level and to ensure that the companies involved in this business are operated in a manner that reflects the conditions laid down in their licences.