John Perry (Sligo-North Leitrim, Fine Gael)

I sympathise with Deputy Willie O'Dea on the death of his mother.

I refer to his amendments Nos. 1 and 2, and provisions relating to a court order regarding the abuse of a dominant position. The Bill provides that the court may require the undertaking to discount the abuse or to adopt measures to stop it being in a dominant position or to secure an adjustment of that position. Such measures can include the sale of the undertaking's assets. Deputy O'Dea proposes that the court may order that the undertaking shall discontinue the abuse and-or the undertaking shall adopt such measures for the purpose of securing an adjustment of that dominant position. The sale of the undertaking's assets is also provided for. In effect, it appears the main difference between our provision is that the Bill permits the court to order the adoption of measures to ensure the cessation of a dominant position whereas this option is omitted from Deputy O'Dea's amendment. Deputy O' Dea seeks to introduce in civil proceedings a fine not exceeding a class A fine, that is, a fine not exceeding €5,000. A class A fine is a fine imposed in criminal proceedings and Deputy O'Dea's amendment seeks to apply a criminal sanction to civil proceedings. The concept of civil fines, that is, a fine imposed in civil proceedings, is not provided for in Irish law in any sector and providing for such a fine would pose legal difficulties having regard to Article 38.1 of the Constitution which provides that no person shall be tried on any criminal charge save in due course of law. The Attorney General has advised that introducing legislation to decriminalise section 4(1)(d) and section 5 of the Competition Act 2002, otherwise known as non-hardcore offences, to introduce civil fines in order to lower the burden of proof from beyond all reasonable doubt to the balance of probability, would pose constitutional difficulties, having regard to the protection afforded by Article 38.1 of the Constitution.

As the Minister, Deputy Bruton, previously informed the Deputies on Second and Committee Stages, civil fines cannot be introduced.

The proposed Bill will strengthen the power of the Competition Authority and will facilitate private actions. The Minister for Public Expenditure and Reform is preparing a horizontal measure on whistleblowing. A review of the Competition Authority is taking place as part of the examination of the public sector and resources, which are being very much examined at the moment in the context of the finances currently in place, public sector numbers and the austerity affecting all Departments.

Deputy Tóibín referred to alleged anti-competitive practices. The Competition Authority, as the statutorily independent body responsible for enforcing competition law, has received information relating to alleged anti-competitive behaviour in the concrete industry. It is clear that the Competition Act 2002 provides that the authority is independent in the performance of its functions and it is responsible for investigating breaches of the Act. As investigation and enforcement matters generally are part of the day-to-day operational work of the authority neither I nor the Minister, Deputy Bruton, have a direct function in the matter. It would be inappropriate for me to comment on any investigation by the authority.

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