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Competition Law adds new bite

This Act amends the Competition Act 1991, taking effect from July 1996. Its aim is to substantially reinforce adherence to competition laws in Ireland by making it an offence for any undertaking to be party to any agreement, decision or concerted practice which is anti-competitive or to abuse a dominant position. Undertakings, their directors, any shadow directors and officers may be prosecuted by the Competition Authority. Fines of up to I£3 million (US$4.5 million) or 10% of turnover may be imposed on conviction.

A new post of the Director of Competition Enforcement has been created to supervise the application of the Competition Acts. The Director will have investigative and reporting powers and it is likely that any prosecutions taken by the Competition Authority will be as a result of this work. It is expected that this Act will give the Competition Authority the teeth it previously lacked to enforce Irish competition law effectively.

Fishing licence as security

Wrangling about fish quotas might not appear to be of much relevance to the financial community yet a recent Irish case highlights the importance of the topic. The case concerned a fishing boat, the Girl Cliona.

The boat is registered in Ireland. The owner obtained finance in Holland. The Irish Supreme Court confirmed that Order 64 of the Rules of the Superior Courts enabled the vessel to be arrested once repossession proceedings had issued. The question of whether the owner of the vessel could retain the fishing quota tonnage entitlement was crucial because if he could, the price the bank would obtain would be substantially reduced and if he could not then the owner's livelihood could be undermined.

The wording in the security document led the court to decide that all the owner's rights in relation to the vessel (which would include the tonnage) had passed to the bank. The court gave effect to security on any future acquired interests saying it was irrelevant whether or not the tonnage was attributed to the vessel before or after the security was granted to the bank.

However, the court did emphasize that it would be for the Minister of the Marine to decide whether the new owner would get a fishing licence. The current EU policy is to reduce the total fishing tonnage. As a result it is impossible to obtain a fishing licence in Ireland unless the overall tonnage for the fleet remains the same or falls.

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