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Competition and Regulation in Ireland
Oak Tree Press, Dec 2003, Pages: 555
It is a pleasure to welcome this interesting, perceptive and fundamental work on Irish and EC competition law and regulation by an economist and a lawyer, who have both worked for the Irish Competition Authority and in regulated industry in Ireland and abroad. Mr. Massey is an economist and Mr. Daly a lawyer with criminal and commercial experience. Their experience of enforcing criminal sanctions for “hard-core” cartels will be of interest in other Member States thinking of introducing them. In addition, they clearly set out the issues facing sectoral regulation of utilities in small Member States, and the problems posed by such regulation.
The book explains the development of the economics of competition and regulation more lucidly and accurately than any other work I know devoted to any European system of competition law. I laughed at many of their anecdotes. There are many references to interesting experience in other common law jurisdictions such as Australia, New Zealand, the UK and US, as well as to EC law. The book deserves to be read by those interested in competition law and regulation outside Ireland, as well as within.
A very welcome feature is that the policy considerations underlying the various chapters are set out simply and clearly and more fully than usual with references to economic works, as one would expect of an economist with academic experience and a lawyer working in a regulated industry. The economic and technical analysis of, for example, energy and telecommunications and their regulation are fascinating and very easy to read.
The experience of both authors at the Competition Authority and its predecessors enabled them to write a telling chapter on the disappointing history of enforcing competition law in Ireland. At first, the law was itself weak and the Authority had no power to enforce. Victims of anti-competitive conduct had to sue for tort. The book describes the legislative “toughening” of the prohibition on anti-competitive behaviour and the subsequent emasculation of enforcement activity by starving the Competition Authority of appropriate resources. Although criminal sanctions were first introduced in 1996, the only prosecution to date involved a relatively minor case and, while staffing levels at the Authority have been increased, the lack of enforcement action remains a problem. On the plus side, the reform of merger controls to exclude politicians from the decision-making process is a welcome development. It may be even more difficult to enforce the law against cartels in the courts when article 81(3) can be applied by them.
The final chapter raises many critical issues: The authors conclude that criminal sanctions for cartels are good, while civil fines for non-cartel cases are not. They argue against giving the Authority power to adjudicate on cases and to impose fines in favour of the current practice of having such matters determined by the courts, as is the case in the United States. They are also concerned that the regulators and competition authority are themselves monopolies, and raise the question about how they should be controlled.
About the Authors:
Patrick Massey is a director of Compecon Limited, an economic consulting firm specialising in competition law and regulatory matters. An economist with over 20 years' experience in both the private and public sectors in Ireland and overseas, spent 10 years as a member of the Irish Competition Authority and was its first Director of Competition Enforcement.
Daragh Daly is a solicitor with the ESB. He has extensive experience in criminal prosecutions and, from 1997 to 2000, was Legal Adviser to the Competition Authority. At the ESB, he has been involved in the legal aspects of the deregulation of the electricity industry as well as providing competition law advice.
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