Mary Mitchell O'Connor (Dún Laoghaire, Fine Gael) | Oireachtas source

The main argument is that the level of proof required to achieve a successful prosecution is too high for hard-core competition offences, for example, cartels and price-fixing, which are criminal in nature. In criminal cases, the level of proof is "beyond all reasonable doubt". By contrast, the level of proof in civil proceedings is on balance of probability grounds. Thus, proving a case in criminal cases is at a higher level.

Very high penalties apply to criminal offences under the Competition Act. There is a fine of up to €5 million or 10% of turnover, whichever is the higher, for an undertaking, or a term of imprisonment of up to ten years for a person. That is the reason for having a high level of proof. The issues at stake are the constitutional implications of imposing large civil fines while having a lower level of proof. The imposition of large fines signifies the criminal nature of an offence.

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