Fergus O'Dowd (Louth, Fine Gael)

Caithfidh mé a rá, mar a dúirt mé cheana, gurb í tuairim an Ard-Aighne nach féidir é a dhéanamh, mar a luaigh an Seanadóir, gan reafrainn a bheith ann. Tá sé soiléir gur féidir fíneáil a ghearradh sa chúirt, ach ní féidir l'aon fhoras seachas na Revenue Commissioners thaobh civil fine a ghearradh. Is féidir fíneáil a fháil uathu siúd. As simple as it might appear, even a minor traffic offence, in respect of which a court hands down a fine, is still a criminal offence and falls into this category. I accept, however, that it will not appear on one's record in the same way other fines might. As stated, the clear advice to the Government is that there should not be civil fines. As the Senator acknowledged, the Competition Authority and the troika are satisfied that what is envisaged represents significant progress.

It appears amendment No. 3 would give the Competition Authority the power to investigate an action by a Department. A Department acts as an undertaking only when engaged for gain in the supply of goods or the provision of services. Departments rarely act as undertakings and are, therefore, outside the scope of the Competition Act. The authority has no power to investigate an action or the activities of non-undertakings. The amendment would also appear to give the authority the power to recommend to Departments that they reconsider their actions, take certain steps to remedy alleged contraventions and account to it for their actions. It would further appear to give the authority the right to act where actions do not contravene competition law but do adversely affect a person. Such a power would divert the authority from its actual function, namely, the investigation of breaches of competition law.

More generally, section 30 gives the Competition Authority a statutory advisory role in respect of proposals for legislation and the implications for competition in markets for goods and services of such proposals. The authority may and has on many occasions reported on how competition is working in different sectors and made recommendations to improve how competition works in these sectors. Such recommendations are addressed to the relevant Minister or public body, as appropriate.

The key point is that if new legislation is proposed, the sponsoring Department will send a memo to the Government. Such memos are automatically circulated to the Competition Authority and those responsible for consumer affairs. Their advice will be included in the memo to the Government. In other words, before action is taken, any issue relating to competition or consumer affairs is commented upon. The authority is party to any memos on these issues. Legislation is proofed in respect of any anti-competitive measures it may contain before it is the subject of a Cabinet decision.

The Minister, Deputy Richard Bruton, has engaged in a process to report on progress made in implementing Competition Authority recommendations to date. Of the 170 plus recommendations made between 2004 and 2010, only 13, or 7%, remain under active consideration. The vast majority have either been accepted and implemented, accepted in principle but not yet implemented, rejected or overtaken by other policy developments. The Government has considered these and Ministers have been urged to accelerate their consideration and implementation, where appropriate, of the relevant outstanding recommendations in the context of enhancing competitiveness within the economy.

In respect of future Competition Authority recommendations, the Minister with relevant policy responsibility must within nine months of the publication of such recommendations bring a report to the Government in which he or she outlines his or her position on their implementation. The next such report is expected to arise in the context of the action plan for jobs which calls on the authority to identify any sheltered areas of the economy in which competition is restricted and to commission studies in such areas, where appropriate.

Requiring a Department of State to report to the Competition Authority on its response to recommendations made by the authority gives considerable power to an unelected statutory body. While the authority may be expert in the area of competition, it does not have the wider public policy role of Departments of State. The Government, Ministers and Departments must consider issues from more than one policy perspective. As stated, however, all legislation is proofed in respect of anti-competitiveness measures it may contain. I hope I have satisfied some of the arguments brought forward by the Senator.