Michael Ahern (Cork East, Fianna Fail)

This amendment is similar to amendment No. 19 concerning the Office of the Director of Corporate Enforcement. Section 45(6) of the Competition Act 2002 provides that any books, documents or records that are seized or obtained under subsection (3) of that Act may be retained for a period of six months or such longer period as may be permitted by a judge of the District Court, or if within that period any proceedings commence have commenced to which the books, documents or records are relevant, until the conclusion of those proceedings.

The Competition Authority has been experiencing difficulty with this provision. Section 45(6) permits the relevant District Court judge to make only one order for continued retention of evidence seized. In the event that the judge gives an order granting a short time period in which it is not possible to begin proceedings, for whatever reason, then the evidence which is the subject of the particular retention will be almost certainly lost to the Competition Authority and to the DPP as it is unclear if the court can grant further retention periods. The time period for retention does not take into account the complexity of cartel investigations.

The 2002 Act makes allowances for the time consuming nature of these investigations by extending the normal time limit within which to bring summary prosecutions from six months to two years. However, the authority is merely allowed to retain evidence for a period of six months, after which it must seek an order from the court for continued retention of this evidence. The Act is silent on how long the District Court can extend this period. It has been the authority's experience on at least one occasion, however, that a continued retention period of 18 months has been deemed excessive and this was reduced to 12 months. The authority can therefore only retain the evidence seized in this instance for a maximum period of 18 months. The provision in section 45(6) effectively defeats the provision in the Act allowing up to two years for summary prosecutions and severely restricts the position of the DPP in bringing cases on indictment. There is also an inconsistency in that different District Courts grant different time periods for the continued retention of evidence in the same investigation. This amendment necessitates a change to the Long Title and amendment No. 30 reflects this. I commend these amendments to the House.