Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

I thank Senator Cullinane for tabling this amendment. It is an important debate and I think it is worth spending a little bit of time on it.

There was a proposal to look afresh at the ruling of the Competition Authority but I understand that commitment was subject to consistency with EU competition rules. It is not consistent with EU competition rules to have such an arrangement. The case we are talking about is not about employees who entered into an agreement, but self employed people who were involved in this agreement.

Under both EU and Irish competition legislation, self-employed persons, including professionals who are not employees, are regarded as "undertakings". There is ample evidence of EU case law at the European Court of Justice on this issue.

Section 4 of the Competition Act 2002 prohibits and makes void all agreements between undertakings, decisions by bodies representing undertakings and concerted practices which have, as their object or effect, the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State. This reflects the provisions of Article 101 of the Treaty on the Functioning of the EU, which contains a similar prohibition in relation to agreements, decisions and concerted practices, which may affect trade between member states.

The current situation is that self-employed undertakings, acting collectively or through their representative bodies, can neither decide on the fees for services provided nor agree a price between themselves for their services, as this is regarded as price fixing contrary to the Competition Act 2002. Competition law does not prevent consultation with groups of self-employed undertakings as long as the power to ultimately set the price does not lie with that collective group. The reason for this is good. If one allows groups of self-employed people to fix their fees or to be involved in practices like this, it does ultimately act against the interests of consumers. Employees are in a different position and they are protected in negotiations.

As Senator Cullinane will know, he is putting forward a view for actors and voice-over actors but there are 250,000 self-employed groups and as he knows there are many groups who would like to have the ability to collude to set their fees. We have seen lots of battles. We discussed with Senator Barrett how we have tended to take a view of competition law, that we should have an exemption for this that or another group. If one has those exemptions, one prevents the interests of consumers being protected by competition law. That is the backdrop to this.

I think we are being consistent with EU rules. The troika members were very clear and it was not an added extra, of which they were indifferent, that further exemptions from competition law was not something that the Irish economy wanted or needed. They were very strong in their view and were supported by the Commission, that Ireland should not be seeking to erode the area of operation of competition law. We responded to that and undertook that we would not erode the operation of competition law. I think we must stand up and accept that competition law is an important part of a system of protection of consumers and making sure that markets operate in a fair way. We cannot pick one group of self-employed and say would it not be nice to give them some sort of an agreement and then say to others that they will not get a similar agreement.

This is a consistent rule that has been at the heart of EU competition law and is one that we have to uphold.

In the second part of the Senator's amendment, he is proposing that discussions may take place "for the purposes of advice only". Collusion and price-fixing are the only things we are prohibiting undertakings from doing. If we were to accept the Senator's proposal that the only permissible form of engagement between representatives of retailers and large suppliers should be commercial discussions for the purposes of advice, we would undermine freedom to contract and add nothing to competition law requirements. They are not prevented from entering into discussions and negotiations. The only thing that is prevented is price-fixing. The Senator's amendment would be more restrictive than the existing law. I do not think the second part of the amendment would achieve the purpose the Senator is hoping to achieve. I am not in a position to accept the dual amendment.