Micheál Martin (Cork South Central, Fianna Fail)

I think the Senator dealt with amendment No. 7 and not amendment No. 8. Amendment No. 8 reads: "Section 6(1) of the Competition Act 2002 is amended by substituting 'prohibited under section 4(1), section 15B or Article 81 of the Treaty shall be guilty of an offence.'."

For clarification purposes, I will deal with amendments Nos. 6 and 8 which seek to criminalise the misdemeanours or the transgressions. We discussed this on Second Stage and I believe the Senator is trying to give effect to his view that we should not only have a civil remedy but that there should be criminal sanctions, which is what amendments Nos. 6 and 8 attempt to do.

Both those amendments are designed to criminalise the behaviour which is prohibited under the Bill. The prohibitions contained in the Bill are not per se offences. In other words, the conduct in question is not prohibited in all cases. We are only prohibiting "hello money", resale price maintenance and unfair trading practices in contexts where they would be anti-competitive. There are circumstances where some of them could be competitive and, therefore, it would be wrong to criminalise actions which the Bill implicitly acknowledges could have some application at some stage.

As I said on Second Stage, we are equally of the view that unilateral conduct on the part of single undertakings, such as that which is prohibited in this Bill, is considerably less serious and cannot amount to cartel activity. We have criminalised what we consider hard-core cartel activity of a very serious nature. The offences in this Bill are not of that gravity and should not be seen as such.

However, the civil remedy has the advantage of allowing aggrieved parties or the Competition Authority to proceed quickly to the courts to challenge any suspect conduct or practice. If someone believes a person down the road is misbehaving or breaking the law, he or she can go straight to the courts to seek a civil remedy. Given the proof, etc., required, it would take far longer to try to get a criminal conviction and perhaps it would be more difficult for people to pursue that route. We believe the civil prohibition marries well with the range of offences for which we are legislating. There is a distinction between serious cartel-type behaviour of undertakings and the offences we are prohibiting in this legislation. We believe the civil remedy approach is the more sensible one.