Competition watchdog seeking to extend its winning streak

October has been a good month for competition in Ireland

October has been a good month for competition in Ireland. Last Friday, the High Court opened the way for the deregulation of the taxi industry when it ruled that the Government had no right to limit the number of taxis. The previous day the Competition Authority successfully obtained an injunction against farmers blockading a Co Donegal dairy that was daring to provide Dunnes Stores with cheap milk.

A week earlier, the authority brought the first criminal prosecution under competition law against Estuary Fuels for fixing the price of motor fuels and won.

Mr John Fingleton, the chairman of the authority and its director of enforcement, has been a frequent guest on radio and TV programmes in recent days. And last Friday Mr Pat Massey, another member of the authority, used a well publicised speech at the Dublin Economic Workshop's Kenmare conference to remind the Government that more resources are needed if it is serious about tackling cartels that are costing the State billions.

"It [the Kenmare speech] was not timed to coincide with the action we took over the Donegal dispute, but we did want to let people know that the authority is back in business," said Mr Massey this week.

READ SOME MORE

Mr Massey asked to be relieved of his position as director of enforcement earlier this year, in part over the issue of resources. It followed the departure of the then chairman of the authority, Mr Paddy McNutt, to the private sector along with a number of other senior staff.

The manpower and morale situation had deteriorated to such a level by February that the authority was not in a position to take on any more investigations. The Tanaiste and Minister for Enterprise, Trade and Employment, Ms Harney, has moved to beef up the organisation, appointing Mr Fingleton - a young Trinity College academic - and subsequently agreeing to extra economists and lawyers for the body. This process is now substantially complete, although some appointments have yet to be confirmed by the Civil Service Commissioners.

The question remains as to how the authority got into such a state to begin with under a Progressive Democrat minister, when you consider that the party has nailed its pro-competition credentials so firmly to the mast.

"It was more cock-up than conspiracy," according to one insider. Many of the original staff were only hired on short-term contracts and were easily poached in the current job market, the source explains. Ms Harney is given much of the credit for moving quickly to rectify the situation once she became aware of it. She must have been a little surprised then by Mr Massey's remarks last Friday, particularly as only a few weeks earlier she had attended the authority's ninth birthday party where she indicated she would look favourably on a further request for resources. "The Tanaiste's position is that the authority will get the resources it needs," said a spokesman this week.

Mr Massey defended his speech, saying that it was addressed at the wider audience and not intended as a criticism of Ms Harney. A number of key issues still need to be addressed if the authority is to take on cartels effectively, he says.

Paramount among these is the secondment of members of the Garda to the authority. In order for competition legislation to be effective it must carry penalties, and this can only be brought about in Ireland by making breaches of competition laws a criminal offence. "We are now in the criminal investigation business and need expertise in the area," he explains.

Another change being sought by Mr Massey is the introduction of immunity for members of cartels who co-operate with the authority - a common feature of competition legislation in most other jurisdictions. The authority is in discussions with the Director of Public Prosecutions about how this can be done, says Mr Massey.

"People seem to think that when we get a complaint, we can go around, kick in the door, grab a piece of paper and bring a prosecution," he says. The reality is that bringing cases against cartels is extremely time-consuming, not least because most members of cartels are clever, experienced businessmen, who know exactly what they are doing, he says. Addressing the issue of resources at the competition authority is only one of number of related issues that the Tanaiste must deal with in the coming months. The first is the taxi question, which will test her mettle.

To date the Tanaiste has not commented on last Friday's judgment and it has been left to her party colleague, the Minister of State at the Department of the Environment, Mr Bobby Molloy, to issue a holding statement to the effect that the judgment will have to be studied and a solution sought.

The Taoiseach on the other hand has indicated that he is disappointed with the judgment and would have preferred to have seen the compromise he brokered given a chance to work.

When asked by The Irish Times to comment, a spokesman for Ms Harney said: "The judgment is going to have to be looked at and considered. The Tanaiste is on the record as saying she is pro-competition.

"She is also on record as saying there needs to be more competition in the economy. It is the way to ensure that consumers will get a high-quality service at reasonable value," he said.

The indications are that the Tanaiste will find it hard to support any decision by the Government to appeal the judgment. But it is unlikely to come down to confrontation, as the Irish National Taxi Drivers Union has already indicated that it is going to appeal the judgment to the Supreme Court. The other major competition issue sitting in the Tanaiste's intray is not likely to resolve itself as easily. In May this year, the Competition and Mergers Review Group presented its report, which called for the abolition of the Groceries Order, among other things.

Introduced in 1987, the Groceries Order bans below-cost selling and effectively makes supermarket price wars impossible. It was introduced after one such war sent the H Williams chain to the wall. RGDATA, which represents the smaller food retailers, argues for the order - which is renewed every year - to be continued as it protects its members' businesses. Along with IBEC, the employer's lobby group, RGDATA argues that this is in the longer-term interest of consumers.

The Competition Authority and the Consumers Association argue just as vociferously for it to be abolished as it keeps food prices artificially high.

The current surge in inflation has thrown the Groceries Order and competition issues in general in sharp relief. The latest inflation data show that food prices continue to rise, increasing by 4.6 per cent on an annualised basis in September compared to 4.3 per cent in August.

By comparison, food prices in Britain and Europe are generally flat or falling.

Abolishing the Groceries Order could have a dramatic impact on inflation, as it would be almost certain to spark a supermarket price war. It will have longer-term implications for prices, which may well be welcome as the current levelling in inflation has been achieved primarily through artificial price freezes, which will end next year.

The Tanaiste will also be keenly aware that the two other drivers of inflation, a weak euro and strong oil prices, show little sign of abating.

She may also have noticed that one area in which prices are falling, according to this weeks inflation data, is telecoms, which is the most deregulated sector of the Irish economy.

Against such a background, Mr Massey's call for more resources is unlikely to fall on deaf ears. The taxi drivers and the grocers may not be so lucky.

John McManus

John McManus

John McManus is a columnist and Duty Editor with The Irish Times