An act to make new provision, by analogy with articles 81 and 82 of the treaty establishing the European community, and in the interests of the common good, for the prohibition of activities which prevent, restrict or distort competition in trade in the state or which constitute an abuse of a dominant position in such trade, to complement the powers available to the commission of the European communities with regard to the enforcement of the said articles 81 and 82, to make new provision, in the interests of the common good, for the control of certain mergers or acquisitions, to continue in being the competition authority and make new provision about its functions, to repeal the competition acts, 1991 and 1996, the mergers and takeovers (control) acts, 1978 to 1996, and certain other enactments, to amend the industrial and provident societies act, 1893, with respect to the requirements for certain special resolutions there under, and to provide for related matters.
This Act may be cited as the Competition Act, 2002.
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Commencement.
This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
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Interpretation.
(1)
In this Act, unless the context otherwise requires—
“authorised officer” means a person appointed under section 45 ;
“Authority” means the Competition Authority continued in being by section 29 ;
“Commission” means the Commission of the European Communities;
“conditional determination” shall be construed in accordance with section 22 ;
“contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly;
“Council” means the Council of the European Communities;
“court”, where used without qualification, means the District Court, the Circuit Court or the High Court as appropriate, or, in the case of an appeal, the Circuit Court, the High Court or the Supreme Court as appropriate;
“director” includes a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but does not include such a person if the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity;
“functions” includes powers and duties and a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of the powers and the carrying out of the duties;
“Minister” means the Minister for Enterprise, Trade and Employment;
“prescribed” means prescribed by regulations made by the Minister under this Act;
“publish”, in relation to a matter, includes to place a notice in relation to it in a national newspaper and to post a notice in relation to it on a website maintained by the Authority, any Minister of the Government or a statutory body;
“statutory body” means a person specified in column (1) of Schedule 1;
“Treaty” means the Treaty establishing the European Community;
“undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.
(2)
In this Act references, however expressed, to an agreement being concluded in respect of a merger or acquisition shall be construed as including references to an agreement (of whatever kind and whether expressed to be in respect of a merger or acquisition or not) being entered into the result of which will, if the agreement is implemented, be that a merger or acquisition occurs.
(3)
Where—
(a)
proof of any matter is, by any provision of this Act, placed on the defendant in the proceedings concerned it shall be sufficient, for the purposes of that provision, for the defendant to prove the matter on the balance of probabilities,
(b)
any provision of this Act provides that any specified matter or matters is or are presumed to be fact unless the contrary is shown (as distinct from being presumed to be fact unless or until the contrary is proved) the provision shall be construed as placing on the defendant in the proceedings concerned an evidential burden only with respect to the matter or matters.
(4)
In this Act references, however expressed, to an act that is done with the consent of a person shall be construed as including references to an act that is done with the connivance of a person.
(5)
In this Act a reference to a section or Schedule is a reference to a section of, or Schedule to, this Act, unless it is indicated that a reference to some other provision is intended.
(6)
In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to another provision is intended.
(7)
In this Act a reference to any other enactment shall be construed as a reference to that enactment as amended, extended or adapted by or under any subsequent enactment (including this Act).
Anti-competitive agreements, decisions and concerted practices.
(1)
Subject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which—
(a)
directly or indirectly fix purchase or selling prices or any other trading conditions,
(b)
limit or control production, markets, technical development or investment,
(c)
share markets or sources of supply,
(d)
apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage,
(e)
make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
(2)
An agreement, decision or concerted practice shall not be prohibited under subsection (1) if it complies with the conditions referred to in subsection (5) or falls within a category of agreements, decisions, or concerted practices the subject of a declaration for the time being in force under subsection (3).
(3)
The Authority may declare in writing that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5); such a declaration may be revoked by the Authority if it becomes of the opinion that the category no longer complies with those conditions.
(4)
The Authority shall publish, in such manner as it thinks fit, notice of the making of a declaration under subsection (3), and of any revocation by it of such a declaration.
(5)
The conditions mentioned in subsections (2) and (3) are that the agreement, decision or concerted practice or category of agreement, decision or concerted practice, having regard to all relevant market conditions, contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not—
(a)
impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives,
(b)
afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.
(6)
The prohibition in subsection (1) shall not prevent the court, in exercising any jurisdiction conferred on it by this Act concerning an agreement, decision or concerted practice which contravenes that prohibition and which creates or, but for this Act, would have created legal relations between the parties thereto, from applying, where appropriate, any relevant rules of law as to the severance of those terms of that agreement, decision or concerted practice which contravene that prohibition from those which do not.
(7)
In respect of an agreement, decision or concerted practice such as is referred to in subsection (6) a court of competent jurisdiction may make such order as to recovery, restitution or otherwise between the parties to such agreement, decision or concerted practice as may in all the circumstances seem just, having regard in particular to any consideration or benefit given or received by such parties on foot thereof.
(8)
The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18 , shall not be prohibited under subsection (1).
(9)
For the avoidance of doubt, references in this Part of this Act to the parties to an agreement, decision or concerted practice of a kind referred to in subsection (1) include references to one or more of the parties to such an agreement, decision or concerted practice.
(10)
Subsection (9) is without prejudice to section 11(a) of the Interpretation Act, 1937 .
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Abuse of dominant position.
(1)
Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in any part of the State is prohibited.
(2)
Without prejudice to the generality of subsection (1), such abuse may, in particular, consist in—
(a)
directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,
(b)
limiting production, markets or technical development to the prejudice of consumers,
(c)
applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage,
(d)
making the conclusion of contracts subject to the acceptance by other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.
(3)
The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18 , shall not be prohibited under subsection (1).
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Offence in respect of breach of section 4 (1) or Article 81(1) of the Treaty.
(1)
An undertaking which—
(a)
enters into, or implements, an agreement, or
(b)
makes or implements a decision, or
(c)
engages in a concerted practice,
that is prohibited by section 4 (1) or by Article 81(1) of the Treaty shall be guilty of an offence.
(2)
In proceedings for an offence under subsection (1), it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to—
(a)
directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice,
(b)
limit output or sales, or
(c)
share markets or customers,
has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise.
(3)
In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in section 4 (1), it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue of section 4 (2).
(4)
In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 81(1) of the Treaty, it shall be a good defence to prove that—
(a)
there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the Commission pursuant to Article 81(3) of the Treaty,
(b)
at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the Commission pursuant to that Article 81(3), or
(c)
The agreement, decision or concerted practice did not contravene that prohibition by virtue of that Article 81(3).
(5)
In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body.
(6)
For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.
(7)
In this section “competing undertakings” means undertakings that provide or are capable of providing goods or services to the same applicable market and, for the purposes of this definition, “applicable market” means a market comprising the provision of goods or services that are regarded by those to whom they are provided as interchangeable with, or substitutable for, each other by reason of the goods' or services' characteristics, prices and intended use or purpose.
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Offence in respect of breach of section 5 (1) or Article 82 of the Treaty.
(1)
An undertaking that acts in a manner prohibited by section 5 (1) or by Article 82 of the Treaty shall be guilty of an offence.
(2)
In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body.
(3)
For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.
