Bus competition case to go ahead in Irish criminal court in 2025
- A case involving alleged bid-rigging by some local bus operators is scheduled for 2025.
In 2016, the Irish Competition and Consumer Protection Commission (CCPC) investigated allegations of anti-competitive arrangements involving some local private bus operators in some counties in Ireland who had apparently bid for, and were awarded, public contracts to operate school bus routes.
The CCPC’s investigation centred on allegations that some operators had entered into, or implemented, an arrangement which prevented, restricted or distorted competition in trade in the provision of school bus services in Ireland between January 2014 and December 2016. These are allegations only.
The investigation included searches at both business and private premises (i.e. there were so-called “dawn raids” on offices and homes).
Media reports indicate that some bus companies and individuals are now accused in court that in 2014-2016, within the State, they authorised or consented to “entering into or implementing an agreement with other such undertakings which had as its object or effect the prevention, restriction or distortion of competition in trade in the provision of school bus services in the State”.
The CCPC referred the matter to the Director of Public Prosecutions (DPP) who considered the file. The DPP decided to bring certain prosecutions against 13 defendants comprising 10 individuals and three companies.
Media reports indicate that there were two separate indictments. The first indictment outlines the offences against five of the accused. The second indictment sets out charges against the other accused.
The case had to go before the Irish courts because the CCPC lacked the power to impose criminal penalties because of the provisions of the Constitution of Ireland which limit the ability to impose penalties to courts established under the Constitution (i.e. administrative agencies such as the CCPC could not impose penalties).
In July 2023, the Central Criminal Court heard that the trial of 13 defendants would cause practical difficulties and it would proceed as two separate trials on different dates. (The Central Criminal Court is the Irish High Court exercising criminal jurisdiction.)
On 3 November 2023, the Central Criminal Court decided that five individuals would stand trial at that Court accused of alleged anti-competitive offences regarding the bus contracts. The trial is not expected to occur until 27 January 2025 with a case management hearing on 1 March 2024. It is anticipated that the trial could take five weeks. No date has yet been set for a trial relating to the second group of accused. The splitting of the accused into two groups avoided a trial which had been estimated to last three months.
Media reports indicate that the allegations are made under the Competition Act 2002 (2002 Act) which is the principal statute on Irish competition law. The allegation is that there is a breach of section 4(1) of the 2002 Act (which is the Irish provision on anti-competitive arrangements) with such a breach being a criminal offence under section 6(1) of the 2002 Act and punishable by penalties under section 8(1) and 8(6) of the 2002 Act.
It will be interesting to see how these trials will proceed.
Traditionally, competition prosecutions have been in the District Court (i.e. the lowest court in the Irish court hierarchy) and have been against a much smaller number of accused (typically one or two at a time). Managing such large trials will be challenging.
It will be interesting to see how alleged events several years ago will be recalled by witnesses almost a decade later.
The alleged events occurred before the enactment and entry into force of the Competition Act 2022 (2022 Act) so the trial will proceed based on the old law (i.e. the 2002 Act as amended but without the 2022 Act amendments) which is indicative of the delays in this type of multi-year process.
While there have been more than three dozen convictions in Ireland for breach of competition law, there have not been many convictions where the charges were fully contested so it will be interesting to see how this case unfolds.
The 2022 Act introduced into Irish law a specific provision relating to bid rigging. It would appear that the alleged events in this case would, if proven, amount to bid rigging so it will be interesting to see whether a conviction is possible under the pre-existing law (which lacked a specific bid-rigging offence) and therefore whether the new offence was really necessary.
There is a long time to run before this case is finalised particularly if there are further delays and appeals.
For more information on this post, please contact Dr Vincent Power, Partner or any member of A&L Goodbody's EU, Competition & Procurement team.
Date published: 8 November 2023