Irish Competition (Amendment) Act 2012: Strengthening Competition Law Enforcement in Ireland

AuthorAmy Dunne
PositionLLB (Trinity College Dublin), MA (European and International Law) (Candidate)
Pages1-23
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IRISH COMPETITION (AMENDMENT) ACT 2012: STRENGTHENING
COMPETITION LAW ENFORCEMENT IN IRELAND
Amy Dunne*
A INTRODUCTION
The inception of a scheme of market regulation within the Irish legal system originated in the
passage of the Restrictive Trade Practices Act 1953,1 a statute which was firmly grounded in
familiar control of abuse principles prevalent at the time.2 Upon its debut, a Minister of the
Irish Parliament responsible for the legislation, Seán Lemass, informed Dáil Éireann (Irish
House of Parliament) that a prohibitions based system modelled on US law had been
considered but decidedly rejected.3 It is now purported that, since 1953, the Irish competition
system has in fact veered closer to the American system owing largely to the introduction of
criminal sanctions for transgressions of Irish competition law.4 This innovation occurred at a
steady pace on the periphery of Europe until it was accelerated in 2011 far ahead of the
creeping criminalisation beguiling other Member States presently.5 As part of the response
mechanisms employed by the EU in the wake of the Euro Debt Crisis,6 the Irish Government
undertook to give effect to the EU/IMF/Ireland Memorandum of Understanding on Specific
Economic Policy Conditionality 2011 (the EU/IMF/Ireland MoU).7 Most pertinent for the
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*LLB (Trinity College Dublin), MA (European and International Law) (Candidate).
1 Restrictive Trade Practices Act 1953.
2 Patrick Massey, ‘What has Irish Competition Policy Achieved?’ (Compecon Limited, Dublin Economics
Workshop Annual Economic Policy Conference, Kenmare, 15 October 2011) 2.
3 Massey (n 2) 2.
4 Gerald FitzGerald, David McFadden, ‘Filling a gap in Irish Competition Law Enforcement: The Need for A
Civil Fines Sanction’ 9 June 2011, Competition Authority, 1.
5 Ken Daly, ‘Cartels and Deterrence - Creeping Criminalisation and the Class Action Boom’ (2007) Bloomberg
European Business Law Journal 318. It is noted that nineteen of the twenty eight Member States of the EU,
individuals can currently be sanctioned for infringements of competition law. Fourteen Member States have
introduced criminal penalties for competition law infringements, sometimes parallel to a system of
administrative fines. See, further, Marco Slotboom, ‘Individual Liability for Cartel Infringements in the EU: An
Increasingly Dangerous Minefield’ (Kluwer Competition Law Blog 25 April 2013)
http://kluwercompetitionlawblog.com/2013/04/25/individual-liability-for-cartel-infringements-in-the-eu-an-
increasingly-dangerous-minefield/> accessed 25 February 2014
6 Commission, Economic and Financial Affairs, ‘EU Response to the CrisisEmerging Stronger from the
Crisis: The European Vision’ COM (11 September 2012)
http://ec.europa.eu/economy_finance/crisis/index_en.htm> accessed 25 February 2014
7 Memorandum of Understanding between the European Commission and Ireland (17 May 2011) subsequently
updated 28 July 2011, 9.
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present analysis, as part of its conditionality, the EU necessitated8 that Ireland further
implement an escalation in the terms of incarceration for breaches of competition; which in
2012 have brought criminal sanctions for infractions of competition law in Ireland formally
on par with the American antitrust law in terms of penal sanctions.
This analysis will examine the rationale and utility of an increase in criminal sanctions in an
already developed and functioning competition regime9 that is far ahead of its contemporaries
in the growing trend to incarcerate competition law offenders. Therefore, as a point of
departure, it must be considered how well in fact the existing system was functioning until
the crucial year of 2011. A consideration of the functioning of a competition enforcement
system cannot be divorced from a consideration of the general principles that govern the
administration of justice in the relevant jurisdiction.10 To date, in Ireland, these principles of
administration have provided cartel offenders with the prospect to escape imprisonment
under the provisions of the Probation of Offenders Act 190711 (the Probation Act).12 The
marginal benefit of doubling the criminal sanctions inherent in the Competition Act 200213 is
therefore questioned in a legal culture in which, until the recent dicta of McKenchie J,14 cartel
offenders have escaped imprisonment due the prevailing ethos of non-application of the most
stringent sanctions of the legal system to white collar crime. Although the possibility to avail
of the provisions of the Probation Act have now been removed under the Competition Act
201215 and it is expected that the ‘second generation’16 of cartel offenders in Ireland will face
the full rigours of increased criminal sanctions, it will be considered whether there is a
realistic prospect of these sanctions strengthening competition law enforcement in Ireland as
envisioned. Finally, as the additional increase is mandated by EU/IMF/Ireland MoU
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8 ibid ‘Government shall bring forward legislation to strengthen competition law enforcement in Ireland by
ensuring the availability of effective sanctions for infringements of Irish competition law and Articles 101 and
102 of the Treaty on the Functioning of the European Union as well as ensuring the effective functioning of the
Competition Authority.’ As per the Regulatory Impact Analysis, as will be discussed below, the Government
opined that it had no other avenue open to it to fulfil this commitment but to increase sanctions within the 2002
Act.
9 Ireland has been plaudited internationally on the strength of its competition regime: D Purcell,Competition
policy, law and culture in 2011(Competition Authority, Competition Authority 20th Anniversary Conference,
Dublin) http://www.tca.ie/images/uploaded/documents/2011%20Conference%20-
%20Declan%20Purcell%20paper.pdf> accessed 25 February 2014
10 Director General of European Competition Authorities ‘Principles for Leniency Programmes’, prepared for
ECA meeting in Dublin 3, 4 September 2001.
11 Probation of Offenders Act 1907, ch XVII.
12 Probation of Offenders Act 1907.
13 Competition Act 2002.
14 DPP v Duffy and Duffy Motors (Newbridge) Ltd [2009]IEHC208 [67] ‘[T]he first generation of carteliers
have escaped prison sentences. I can say that the second will not.’
15 Competition (Amendment) Act 2012.
16 DPP v Duffy [2009]IEHC208.

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