The professional foul is a well-known concept in sport and probably even better known after international matches. For instance, the non-rugby players of the world are surely excused for asking why so many obvious penalties, as pointed out by knowing commentators, were conceded, no, given away, in the recent World Cup by professional players. Surely they knew? Could they be so stupid? Or were they just cynical, chancing their arms, literally?
An equivalent professional foul in business must be price-fixing and the operation of cartels. Surely no business can unknowingly engage in actions which are anti-competitive and even criminal offences under the Competition Acts? But many do.
The speech last week by the head of enforcement of the Competition Authority, Mr Patrick Massey, was striking in its vehemence, a vehemence not normally associated with a regulator (using that term loosely) or even a Minister.
Mr Massey said the Republic was a "target-rich environment" for competition enforcement. Last year, 109 complaints cases concerned alleged price fixing and other forms of cartel arrangements.
"Cartels are the equivalent of theft by well-dressed thieves and consumers have a right to be protected," he said.
Borrowing a now over-used phrase - but understandably - Mr Massey said, "it's pay-back time" for consumers.
Mr Massey said that "hardcore cartel activity" was "a very serious problem" in the economy. Last month's report by the Competition and Merger Law Review Group estimated the cost of anti-competitive behaviour to an economy at between 1 and 2 per cent of GNP. This would represent between €500 million (£394 million) and €1 billion per annum in our economy. A target-rich environment for cost recovery indeed.
Competition Authority cases against the Vintners Federation of Ireland and the Irish Vintners Association are due for hearing in the High Court. The VFI made the ridiculous complaint last May that the Competition Authority's "archaic rules" (the Authority has been in existence only since 1991) prevented it from advising its members on the changeover to the euro. Publicans can't use calculators without a trade association, you see.
The Competition Authority has also decided to begin proceedings against RTE, some liquid milk suppliers and retailers, and Eircom, according to the review group's report.
Some of the worst forms of anti-competitive restrictions are established by Government itself, taxis being the most infamous example.
The cliche says professions and associations are conspiracies against the consumer. But professional fouls are committed against other players. Businesses as well as consumers are damaged by anti-competitive practices. An illuminating description on business awareness of competition law and of the Competition Authority was included in the Review Group's report.
It shows a worrying level of ignorance of competition law among businesses as well as a lack of consciousness that competition enforcement benefits business.
The ESRI found that only 18 per cent of firms claimed to have knowledge of competition law. Of those, 41 per cent felt it was to their advantage. A total of 89 per cent of those who had heard of the Acts felt that they had no effect on their businesses, while only 6 per cent felt that the laws operated to their advantage.
There was a strong message in this survey, taken in 1997-98, that the Competition Authority had yet to impress on business the benefits of competition enforcement. Some 63 per cent of firms which had heard of the Competition Authority did not know what its functions were.
Refreshingly for an official report, the Review Group did not accept the authority's explanations for criticisms levelled at it by law firms. "The approach adopted by the Authority was not sufficiently `lawyerly' " another survey, carried out by the MRBI found. Procedural defects and enforcement powers were not sufficiently utilised, said the law firms. The authority's rationale for law firms' dissatisfaction that solicitors were likely to be in contentious situations visa-vis itself was not really accepted by the review group.
There is quite a distance to go before anti-competitive practices in the economy are stamped out, as evidenced by the recent nonsense the IFA engaged in to try to stop Aldi selling cheaper imported milk.
All parties have to take action. The Government must take on vested interests and liberalise protected sectors, like taxis, pharmacies and pubs. Good business must learn more about the benefits of competition enforcement.
Bad businesses must be made live in fear of competition enforcers (as in the US). The authority has to communicate better, and become more, well, lawyerly.
Finally, we consumers should put bad businesses, politicians, and enforcers under a lot more pressure to get back our hundreds of millions of pounds taken in anti-competitive theft.
Oliver O'Connor is editor of the monthly publication, Finance. E- mail: ooconnor@indigo.ie
