The Gazette 1991

GAZETT INCORPORATE D LAWSOCIET Y OF IRELAND Vol. 85 No. 7Septembe r 199 Viewpoint Competition Act - An Unguided Missile?

GAZETTE

i SEPTEMBER 1991

In this Issue V i ewp o i nt

2 59

The Latest Hazard to Guarantees - S. 31, Compan i es A c t, 1 9 90

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The Competition Bill, 1991 has now been enacted into law. Readers will be aware that one of the primary objectives of the Act is to outlaw agreements, decisions and con- certed practices which have as their object or effect the prevent- ion, restriction or distortion of competition in trade or the supply of services. The Act will establish a Competition Authority with powers to enforce the new com- petition rules. In this respect, Ireland is moving in the direction already taken by most other Member States of the EC (with the exception of the United Kingdom) in implementing directly into its law provisions analogous with Articles 85 and 86 of the Treaty of Rome. The Minister for Industry and Commerce, Mr. O'Malley, made it clear, when introducing the Bill, that it would apply to the pro- fessions, including the legal profession, and an examination of the Act makes it clear that it could have far-reaching implications. There seems little doubt that legislation of this kind, which seeks to improve the competitiveness of the economy, will be welcomed in many quarters and will be seen as desirable to ensure that consumers of goods and services get the best possible deal in the market place. The distortions of trade, to the ultimate detriment of the con- sumer, that have been evident in the past through the operation of cartels can now be tackled seriously. Even in relation to the professions, it is at least arguable that such restrictions as may result from the concerted practices of professional organisations should be subjected to the scrutiny of a body such as the Competition Authority to ensure that any distorting or harmful effects they might have on competition would be eliminated. The problem, however, is that the Government, bowing, perhaps, to

pressure exerted by Mr. O'Malley, seem to have chosen this legisla- tion as a vehicle through which to attempt to alter in a fundamental way the manner in which the legal profession is organised in this country and legal services are delivered to the public. We would submit that a Competition Act, designed principally to tackle abuses of an essentially economic kind, is not a proper instrument to effect change in the structure of the legal profession. On its face, the Act has nothing whatever to say about the legal system or about how lawyers organise themselves and deliver services to their clients. Moreover, in the course of its passage through the Oireachtas, very few members of either House adverted to the implications of the legislation for the professions in general or for the legal profession in particular. One wonders, in this regard, whether, in giving Mr. O'Malley the green light to bring forward this legislation, the Government were at all conscious of its potentially serious implications. We are not suggesting, of course, that there is anything improper about the Government deciding to bring forward legislation which seeks to effect change in the legal profession. We do say, however, that, in such a vitally important area, it is essential that such changes as are proposed are carefully considered and evaluated, brought forward in legislation which makes it clear on its face what is being proposed and, ultimately, subjected to the scrutiny which all legislation gets in the course of debate and passage through the Dail and Seanad. Moreover, it hardly needs to be said that the Minister with responsibility for the administration of justice and the legal system as a whole, who is the Minister for Justice, is the (Cont'd on p.266)

Practice Notes

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Lawbrief

Younger Membe rs News

People and Places

Con t r ac t ual Obligations (Applicable Law) A c t , 1991

2 81

Civil Liability for the Supply and Sale of Alcohol - Massachusetts Experience 2 83 M. J. Connor & Co. Mu s e um 2 8 5 Recent Changes in t he Social We l f a re Code - Personal Representatives 2 87 Book Reviews 2 91 Correspondence 2 93 Professional I n f o rma t i on 2 94

Editor:

Barbara Cahalane

Committee: Eamonn G. Hall, Chairman Michael V. O'Mahony, Vice-Chairman

John F. Buckley Patrick McMahon Elma Lynch

Advertising: Seán Ó hOisín. Telephone: 305236 Fax: 307860 Printing: Turner's Printing Co. Ltd., Longford. The views expressed in this publication, save where otherwise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7. Tel.: 710711. Telex: 31219. Fax; 710704

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