Thomas Byrne (Fianna Fail) | Oireachtas source

Senator Zappone has touched on an important omission. Matters that do not reach the level of criminality are not necessarily covered by the definition in section 5(3) and criminality may be absent in the case of undue influence being exercised by a public official. What is the position regarding breaches of competition law or Articles 101 and 102 of the EU treaty? While there is specific provision on this matter in the Competition Act, a good faith defence is available in that disclosure under the Act must be done in good faith. Such disclosures do not always reach the standard of criminal activity and could well be civil breaches. The same applies with regard to the Companies Act. Certain serious breaches of the Act are not offences under section 5(3)(a). They may constitute lack of compliance with a legal obligation but fall into the category of civil offences or breaches. I refer specifically to the Competition Act and Articles 101 and 102 of the EU treaties, the analogous provisions in Europe. If, for example, two major multinational companies were found to have entered into a price fixing arrangement, Ireland would not have a role in the matter, as such matters are dealt with at European level where whistleblowing protection is in place. Under the definition in section 5(3), protection will not be afforded to a person in Ireland who blows the whistle on major price fixing but does not do so in good faith.

It is not an offence, it is arguable whether there is an issue of failure of legal obligations, it is not a miscarriage of justice, it is not a health and safety matter or a matter of the environment, it is not the misuse of funds of a public body or an act of omission of a public body and it is not the destruction of information. I believe there is a category of wrongdoing not covered by the legislation and Senator Zappone's amendment touches on that.

My Report Stage amendments cover the Competition Acts and Articles 101 and 102 of the Treaty on the Functioning of the European Union, which relate to price-fixing, reputed dominance at European level and breaches of the Companies Act which do not reach the level of criminality. I wonder whether that has been considered. There could be serious wrongdoing. A person could be disbarred from being a director for serious wrongdoing but that person may not be guilty of an offence and I wonder whether that has been considered. I will be tabling my amendments, especially those dealing with the Competition Acts and the Companies Act. They are already in place but I will be tabling them on Report Stage.