The recently-published Competition (Amendment) Bill 2011 aims to provide more effective deterrents for individuals or organisations engaging in anti-competitive practices. This proposal is seen as a step towards compliance with a Government commitment under the EU/IMF financial support programme to strengthen the enforcement of competition law in Ireland.
The main proposals in the Bill include:
- An increase from 5 to 10 years for the maximum prison sentence for conviction on indictment of a “hard core” competition offence (i.e., agreements and arrangements relating to price-fixing, output restrictions and market sharing)
- Increased fines for competition offences
- An easing of the burden of proof for private plaintiffs taking a follow-on case for damages
- Enabling a court to make a convicted undertaking liable for the costs and expenses incurred in relation to the investigation, detection and prosecution of the offence;
- Extending the possibility of director disqualification to cover non-indictable competition law breaches and
- Providing that a person convicted of a competition offence will not be eligible for probation (where a judge does not record a conviction in relation to a proven case)
While the proposed increase in penalties demonstrates the seriousness with which breaches of competition law are viewed, it is arguable that the current range of high fines and long maximum period of imprisonment for cartel offences (up to five years) already have a sufficiently dissuasive effect. The key problem in competition law enforcement in Ireland lies not in the maximum possible level of penalties but in the low likelihood of detection and of punishment.
The proposed provisions on follow-on cases are to be welcomed from the private litigant’s point of view. However, this provision will primarily apply where there have been prior public enforcement proceedings and, since such public enforcement is infrequent, private litigants will continue to face significant evidential difficulties in cases where there is no prior court determination.
Contributed by Cormac Little and Claire Waterson.
