THE GOVERNMENT should enact legislation to allow those breaching all kinds of competition law to be fined, the Competition Authority has urged.

As a constitutional question hangs over the granting of such powers to the courts, the authority advocates the pre-emptive referral of the legislation to the Supreme Court by the President. In the event of the court finding such legislation unconstitutional, the authority believes that the holding of a referendum is warranted.

The call was made yesterday at a briefing by the authority in the context of a September 2011 deadline, imposed in the EU-IMF bailout, for the introduction of legislation to allow the courts to levy fines on breaches of civil and criminal competition law.

Currently, the courts only impose fines in competition cases taken under criminal law.

Gerald FitzGerald, a director of the Competition Authority, said that in this regard Ireland is unusual. The courts and competition authorities in “virtually all” EU countries and other non-European common law countries, such as Australia and Canada, have the power to fine such breaches, he added.

Mr FitzGerald noted that before the general election Fine Gael had committed to bringing Irish competition enforcement into line with international norms, but the commitment was not included in the programme for government.

In relation to the sanctions faced by those breaching non-criminal competition laws he said: “In Ireland, there is little or no deterrent.”

This, he said, amounted to a “serious gap in the Irish competition law enforcement toolkit”.

The solicitor to the authority, David McFadden, identified article 38.1 of the Constitution as the reason for the uncertainty about granting to the courts the power to fine in civil cases. Although he added that in some civil law cases, such as breaches of the tax code, the courts have a well-established right to impose fines.

The matter could be resolved by the “bizarre dichotomy” whereby Irish courts impose fines under European Community law but not under Irish law.

The European Court of Justice – the EU’s highest court – is currently hearing a case which should clarify the matter within weeks Mr McFadden said.

The principle of the supremacy of European Community law over the domestic law of member states was established in 1964, almost a decade before Ireland joined the then European Economic Community.