Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The issue of empowering the Competition and Consumer Protection Commission (CCPC) to issue civil fines has been examined by my Department.  The current legal position is that civil fines are not provided for in Irish law for anti-competitive practices. The Attorney General has previously advised my Department that providing for them would pose legal difficulties having regard to Article 38.1 of the Constitution, even at the level of a class A fine. In that context any national legislation to introduce civil fines that would lower the burden of proof from beyond reasonable doubt to the balance of probability would pose constitutional difficulties having regard to the protection afforded in Article 38.1 of the Constitution.

On 22 March 2017, the Commission published a proposal for a Directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market. One of the Directive’s aims is to ensure that all National Competition Authorities are able to impose effective deterrent fines. The proposal is currently being debated at the Council Working Group on Competition and is also being considered by the European Parliament.

I am aware that the Law Reform Commission published an Issues Paper entitled "Regulatory Enforcement and Corporate Offences" on 27 January 2016. The Issues Paper invited views on the supervisory and enforcement powers of the State’s main financial and economic regulators (including the Competition and Consumer Protection Commission) and the issue of administrative and civil fines was raised. I understand the CCPC made a submission to the Law Reform Commission on 19 September 2017 in response to the Issues Paper.  Any recommendations or proposals that may emanate from this exercise in due course will be carefully considered by my Department.

Frances Fitzgerald (Dublin Mid West, Fine Gael)
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The Competition and Consumer Protection Commission (CCPC) is the statutory independent body responsible for the enforcement of domestic and EU competition law in the State. Its search powers for the purposes of investigating alleged breaches of competition law are set out in section 37 of the Competition and Consumer Protection Act 2014 (the “2014 Act”).  Section 37 of the 2014 Act gives the CCPC significant powers of entry, search and seizure in the context of competition law investigations.  For the purpose of obtaining any information which may be required in relation to a matter under investigation, these powers include the power (i) to enter a place (if necessary by reasonable force) and to search that place, (ii) to seize and retain books, documents or records found at the place, and (iii) to inspect and take copies of or extracts from any such books, documents or records.  In order to exercise these powers, the CCPC must first obtain a search warrant from the District Court.

The CCPC (and formerly the Competition Authority) has been very active in enforcing competition law.  To date, the CCPC and the Competition Authority have assisted the DPP in securing 35 convictions on indictment for cartel offences.  These cases have resulted in the criminal courts imposing fines totalling €646,500. This year also saw Ireland’s first conviction for bid-rigging following an investigation by the CCPC.

The CCPC’s search and seizure powers under section 37 of the 2014 Act were recently challenged by CRH plc. CRH brought an action in the High Court arising from an unannounced search carried out by the CCPC at the premises of CRH’s subsidiary, Irish Cement Limited, on 14 May 2015 as part of an ongoing investigation by the CCPC into alleged anti-competitive practices in the bagged cement sector. CRH argued that certain emails in the mailbox of one of the directors of Irish Cement, which had been seized by the CCPC during the search, were unrelated to the business of Irish Cement and were therefore not entitled to be seized.  The High Court ruled in favour of CRH in April 2016.  In May 2017, the Supreme Court dismissed an appeal brought by the CCPC against the High Court’s judgment.  I understand the CCPC is continuing to consider the Supreme Court’s judgment and to assess its implications for its investigative functions.