Crackdown on white-collar crime not begun after 12 months

Labour justice and education spokesperson Aodhán Ó Ríordáin says 'we have to be vigilant to ensure that companies do not dodge the legislation'.

Government plans to crack down on anti-competitive practices and white-collar crime have not yet got under way despite being signed into law 12 months ago, and will likely face challenges in the courts.

A report from the Department of Enterprise said the provisions of the Competition (Amendment) Act 2022 represent a “radical change from the existing competition law regime in Ireland” but “cannot operate effectively” unless further legislation is put in place.

The laws would grant greater powers to the Competition and Consumer Protection Commission (CCPC) and increase the fines it could dish out for breaches of competition law.

The CCPC has been under the spotlight in recent months, after an investigation into alleged price gouging by supermarkets with critics saying it should be given more teeth to take action.

This week the ESRI published its quarterly economic commentary which pointed to the possibility of “anti-competitive behaviour” in the energy market “where firms fail to pass on a wholesale price decrease in order to boost profits”.

At the time when it was debated in the Dáil, Sinn Féin’s enterprise spokeswoman Louise O’Reilly said it was essential further resources are provided to the regulator to reflect the likely significant increase in workload it would have with these new powers.

“New powers are welcome, but they are effectively useless without the capacity of the organisation to back that up,” she said.

Labour TD Aodhán Ó Ríordáin, meanwhile, said “we have to be vigilant to ensure that companies do not dodge the legislation” and that investigating bodies “do not get too cosy with their industries”.

The post-enactment report from the Department of Enterprise noted that the provisions were brought in to transpose an EU directive which aims to ensure national regulators have guarantees of independence, sufficient resources and appropriate powers of enforcement, including the ability to issue fines.

It also aims to crack down on anti-competitive agreements between two or more independent market operators, and abusive behaviour by companies holding a dominant position in any given market. The law would see that breaches of competition law can be enforced through administrative actions for the first time.

Maximum fines

The maximum fines are set at €10m or 10% of a company’s total worldwide turnover, whichever is greater.

It also has a leniency provision where an entity can be given immunity from prosecution if it cooperates with the authorities and creates a specific offence of “bid-rigging” in procurement processes.

However, the report concludes by pointing out the difficulties with the law, including the “significant constitutional considerations” and that it has not yet been commenced.

“This system is unprecedented in Irish law and as the potential fines involved are significant, it is likely that this law will be challenged,” it said. “The nature of the Act as well as its inherent complexity has also applied to the drafting of this secondary legislation.”

Noting the laws “cannot operate effectively” without further legislation, it added the Office of the Parliamentary Counsel is drafting this secondary legislation and it is likely this process will conclude in the coming days.