Róisín Shortall (Dublin North West, Labour)
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Question 1122: To ask the Minister for Enterprise, Trade and Employment if his attention has been drawn to the fact that Section 4 (1) of the Competition Act, 2002 is being invoked by the Health Service Executive as a reason not to negotiate with the Irish Pharmaceutical Union; the action he will take to amend this section in order that unions of this type are recognised; and if he will make a statement on the matter. [2821/07]

Micheál Martin (Cork South Central, Fianna Fail)
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I am aware that the Health Services Executive (HSE) is concerned that through its negotiations on the subject of professional fees with representative bodies, such the Irish Pharmaceutical Union (IPU), that it may be in breach of the Competition Act 2002.

The HSE's concerns appear to relate to its interpretation and application of the Competition Act, 2002, and in particular Section 4 of that Act which prohibits anti-competitive practices, such as price fixing, by "undertakings". An "undertaking" is defined in the Act as "a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply, or distribution of goods or the provision of a service". This definition has been in use in Irish competition law for some time and is supported by EU case law.

If the HSE is concerned that, through its negotiations with the IPU, it could be in breach of the Competition Act, it is a matter for the HSE to decide how to act so as to comply with the provisions of the Act. Under the 2002 Act, the Competition Authority is the independent statutory body responsible for enforcing competition law. While the Authority investigates and prosecutes breaches of the 2002 Act, it does not issue advice or opinions on individual cases which may arise under the Act. Occasionally and, in accordance with its mandate under section 30(1)(d) of Act, the Authority issues guidance of a general nature on how the Act may be complied with. For example, I understand the Authority recently issued guidelines in respect of collective negotiations relating to the setting of medical fees.

If the IPU disputes the HSE's interpretation of the Competition Act, it is open to that body to seek legal advice on the matter. Section 4(5) of the 2002 Act provides a defence to the prohibition on price-fixing contained in section 4(1). The IPU could consider making a submission to the Competition Authority that the defence provided for by section 4(5) applies in this instance. However, in a somewhat similar case, the Authority has previously found that self-employed persons are to be classed as "undertakings" for the purposes of the 2002 Act, that collectively bargained agreements concluded by trade unions on behalf of such persons are prohibited agreements under section 4 and that the section 4(5) defence did not apply in that instance.

In relation to that case, the Competition Authority view was, that while it was perfectly legal for a trade union to represent employees in collective bargaining with their employers, its trade union mantle could not exempt its conduct when it acts as a trade association for self-employed contractors.

In considering the question of whether an exemption from competition law should be provided for self-employed individuals, the consequences of such an exemption are significant. It would mean that almost any group of self employed contractors, such as barristers, publicans, doctors, by coming together, adding "union" to their name and getting a negotiating licence, could circumvent the protections afforded to consumers by the Oireachtas in the Competition Act. Consequently, I have no plans to amend the Competition Act to address this issue.

In any event, the decision the Deputy refers to is a decision of the HSE and as that body falls within the remit of the Minister for Health and Children, I have no function in this matter.