Rory Kiely (Fianna Fail)

Amendments Nos. 20 to 23, inclusive, are related and may be discussed together.

Government amendment No. 20:

In page 40, to delete lines 34 and 35 and substitute the following:

"(13) To the extend that a cooperation agreement entered into under this section is inconsistent with a cooperation agreement to which section 47G (inserted by section 31 of the Communications Regulation (Amendment) Act 2007) applies, the second-mentioned cooperation agreement shall prevail.".

Part 4 of the Bill amends the Competition Act 2002 to confer on ComReg competition powers, similar to those relating to the Competition Authority, to enable it to investigate and prosecute anti-competitive agreements and practices and the abuse of dominance in the telecommunications sector. The Competition Authority may also investigate these behaviours. Accordingly, it has been necessary to include provisions to cover issues of jurisdiction and co-operation between the two bodies. There is an existing co-operation agreement under section 34 of the Competition Act 2002 which facilitates co-operation between the bodies in the performance of their functions relating to issues of competition between undertakings. However, that agreement does not relate to the new functions of ComReg to investigate and prosecute issues such as dominance in the electronic communications sector. The Bill as drafted provides for a new co-operation agreement specifically for that purpose. The new agreement does not, however, cover all other areas of co-operation between the bodies. I refer, for example, to those relating to postal issues.

The Bill also provides that the existing co-operation agreement between the two bodies already provided for in the Competition Act no longer applies. Accordingly, amendments are now necessary to reinstate the existing agreement. Government amendments Nos. 20 and 23 provide for this. Government amendment No. 20 substitutes new text for that contained in section 29 of the Bill to provide that where a co-operation agreement under section 34 of the Competition Act — the existing agreement — is not compatible with a co-operation agreement under section 47G of the Act, as amended, namely, the new agreement relating to competition law powers, the new agreement shall apply. Amendment No. 23 substitutes new text for that contained in section 32 of the Bill, which deleted the reference to ComReg or the ODTR in the Schedule of the Competition Act 2002. The latter lists the statutory bodies with which the Competition Authority has co-operation agreements under section 34. The text amends the Schedule to update the reference to the Director of Telecommunications Regulation and the Minister for Public Enterprise, which were current when the Competition Act was enacted in 2002, to the Commission for Communications Regulation and the Minister for Communications, Marine and Natural Resources.

With regard to amendments Nos. 21 and 22, section 31 inserts new sections 47A to 47G into the Competition Act relating to the performance by ComReg of its functions under that Act. It provides that both ComReg and the Competition Authority will enter into negotiations to draw up a co-operation agreement to facilitate the performance of their respective functions under the Act. The agreement is designed to ensure consistency between decisions, to avoid duplication of activities and to enable the exchange of information and consultation between both bodies.

The new section 47G provided in subsection (2) that the co-operation agreement between the bodies should facilitate in so far as possible the sharing of information between the bodies if it is required by the other to carry out its functions under the Act. Subsection (8) provides that any restrictions or prohibitions on disclosure of information that applied either to ComReg or the Competition Authority as the provider of the information would apply to the other as the receiver. A typographical error that had subsection (8) refer back to information shared under subsection (2)(a) when it should have referred to the information shared under subsection (2)(b) is now being corrected. The Parliamentary Counsel's preferred way to correct this anomaly is to apply subsection (8) protections regarding disclosure of information to the whole of section 47G. It is a rather long way of indicating that this is designed to ensure, on foot of the co-competition powers, that both bodies operate and co-operate with each other.