Fergus O'Dowd (Louth, Fine Gael)

Gabhaim buíochas leis an Seanadóir as ucht na tuairimí a nochtaigh sé. Is mian liom freagra a thabhairt i mBéarla i dtosach don Seanadóir. As Senator White's amendments have been grouped, my responses will cover the proposed amendment in respect of both sections 3 and 4.

The first part of Senator White's amendment, paragraph (a), substitutes provisions relating to the actions that a court may order in regard to an abuse of a dominant position. The text of the amending Bill provides that the court may require the undertaking to discontinue the abuse or to adopt measures for the purpose of it ceasing to be in a dominant position or securing an adjustment of that position. Such measures can include the sale of the undertaking's assets.

Senator White is proposing that the court may order "(i) that the undertaking shall discontinue the abuse, or (ii) that 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 would appear that the main difference between what Senator White is proposing and what is in the legislation 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 not included in Senator White's amendment.

In her proposed paragraph (b), Senator White 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. Senator White's amendment seeks to apply a criminal sanction to civil proceedings.

Mar adúirt an Seanadóir, má tá fíneáil sibhialta le bheith ann, caithfear athrú a dhéanamh sa Bhunreacht. Ní féidir fíneáil sibhialta a leagaint amach muna ndeireann Oifig an Ard-Aighne gur féidir sin a dhéanamh go dleathach. Cé gur luaigh gach éinne sa díospóireacht sa Seanad agus sa Dáil gur cóir go mbeadh fíneáil sibhialta ann, ní féidir sin a dhéanamh gan an Bunreacht a athrú.

Notwithstanding the debate both in the Seanad and in the Dáil on civil fines and the views expressed by many bodies, including the Competition Authority and the troika initially, the legal position and the advice the Government has on the provision for such fines is that there would be 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. As the Minister, Deputy Bruton, advised on Second Stage, civil fines cannot be introduced from a legal perspective. That is the advice of the Attorney General.

I am aware the Competition Authority has called for the introduction of civil fines as a means to strengthen the enforcement of competition law. I understand this issue has been the subject of extensive consideration both by the Department of Jobs, Enterprise and Innovation, in consultation with the Office of the Attorney General, and by competition law practitioners in general.

As the Senator stated, the matter attracted the attention of the troika which called for the introduction of legislation to strengthen competition law. The European Commission's intent in seeking this commitment arose from its desire to see the introduction of civil fines in the area of competition law. While the authority argued the case strongly for such fines, ultimately, given certain constitutional protections afforded to accused persons by Article 38.1, it has not proved possible to introduce the concept of civil fines as espoused by the authority. Both the authority and the troika accept this position, and together with the Department and the Office of the Attorney General, they have worked to produce the suite of alternative enforcements provisions contained in this Bill. Combined with the already substantial monetary and custodial penalties available under the Competition Act 2002, following enactment of the Bill, Ireland will have a robust and effective competition law enforcement regime.

The programme for Government contains a commitment to enact legislation to ban unfair practices in the retail sector. The Government will give effect to this commitment by including specific enabling provisions to deal with this issue in legislation being prepared to merge the National Consumer Agency and the Competition Authority. It is expected this legislation will be published later this year. The Government is strongly committed to ensuring Ireland continues to have vibrant agrifood and retail sectors, especially given the importance of these sectors to the national economy. The Government therefore considers it important there is a balance in the relationship between the various players in the grocery goods sector and is determined to achieve a balance which takes account of the interests of all the stakeholders in the grocery trade sector, including the interests of the consumer, and the need to ensure there is no impediment to passing on lower prices to consumers.

In light of the above, the Minister does not intend to accept Senator White's amendments either in respect of Section 3 or Section 4.