GLOBAL GUIDE 2015/16 COMPETITION AND CARTEL LENIENCY Country Q&A Restraints of trade and dominance in Ireland: overview Pat O'Brien and Richard Ryan Arthur Cox global.practicallaw.com/5-617-2691 RESTRAINTS OF TRADE Scope of rules 1. Are restrictive agreements and practices regulated? If so, what are the substantive provisions and regulatory authority? Regulatory framework Irish competition law is broadly based on the EU competition law rules. Section 4(1) of the Competition Act 2002, as amended (Competition Act) reflects Article 101 of the Treaty on the Functioning of the European Union (TFEU) and provides that all agreements, decisions and concerted practices between undertakings "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". Section 4(1) lists certain types of arrangements that fall within the prohibition, including those that: Directly or indirectly fix purchase or selling prices or any other trading conditions. Limit or control production, markets, technical development or investment. Share markets or sources of supply. Place other trading parties at a competitive disadvantage by applying dissimilar conditions to equivalent transactions. Attach supplementary obligations to contracts with other parties that have no connection with the subject of contracts. Section 6(1) of the Competition Act makes a breach of section 4(1) of the Competition Act or Article 101(1) TFEU a criminal offence. Section 6(2) of the Competition Act provides for "hard core" cartel offences, which are defined as agreements, decisions or concerted practices between competing undertakings the purpose of which is directly or indirectly to fix prices, to limit output or sales, or to share markets or customers. Such arrangements are presumed to have the object of restricting competition. Sanctions for hard-core cartel offences include significant fines for the undertaking and individuals and the possibility of imprisonment for up to ten years for individuals. Regulatory authority The Competition and Consumer Protection Commission (CCPC) took over the functions of the Competition Authority and the National Consumer Agency on 31 October 2014. The CCPC is now the statutory body responsible for enforcing Irish and European Competition Law in Ireland. Unlike the European Commission and most of the other competition authorities in member states of the EU, the CCPC does not have the power to reach an infringement decision that is binding on an undertaking or person. The CCPC does not have the power to impose administrative fines. The CCPC must go to court to establish an infringement if parties under investigation do not agree to change their conduct following a CCPC investigation that concludes that there is an infringement. The CCPC investigates alleged breaches of the Competition Act and can bring summary criminal proceedings in the District Court and civil proceedings in the Circuit Court or High Court. However, the CCPC cannot bring criminal prosecutions on indictment of its own accord. If the CCPC believes that there is sufficient evidence to establish a hard-core cartel offence, it will prepare a file for the Director of Public Prosecutions (DDP) recommending that the DPP prosecute the alleged participants on indictment. The DPP must then decide whether to proceed with a prosecution on indictment. See box, The regulatory authority. 2. Do the regulations only apply to formal agreements or can they apply to informal practices? Section 4 of the Competition Act, like Article 101 of the Treaty on the Functioning of the European Union, applies to both formal and informal agreements. Exemptions 3. Are there any exemptions? If so, what are the criteria for individual exemption and any applicable block exemptions? An agreement, decision or concerted practice is not prohibited and can benefit from an exemption under section 4(2) of the Competition Act if, having regard to all relevant market conditions, it 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 either: Impose on the undertakings concerned terms that are not essential to the achievement of those objectives. Allows the undertakings concerned the possibility of eliminating competition with regard to a substantial part of the relevant products or services. In addition, section 4(3) of the Competition Act allows the Competition and Consumer Protection Commission (CCPC) to make written declarations that, in its opinion, a specified category of agreements, decisions or concerted practices complies with Thomson Reuters 2015 This article was first published in the Competition and Cartel Leniency Global Guide 2015/16 and is reproduced with the permission of the publisher, Thomson Reuters. The law is stated as at 1 July 2015.
Country Q&A these conditions. Only one such CCPC declaration is currently in force (Declaration in respect of Vertical Agreements and Concerted Practices (Vertical Declaration)). Exclusions and statutes of limitation Investigations 6. Who can start an investigation into a restrictive agreement or practice? 4. Are there any exclusions? Are there statutes of limitation associated with restrictive agreements and practices? Exclusions A merger or acquisition that is put into effect in accordance with the provisions of the Competition Act is not prohibited under section 4(1) of the Competition Act. Additionally, any ancillary restraints that are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification and approved by the Competition and Consumer Protection Commission (CCPC) in the merger control process are not prohibited. Statutes of limitation There are no time limits for carrying out investigations and bringing criminal prosecutions for breaches of competition law; the relevant criminal offences have only existed since 1996. For civil proceedings, to establish an infringement of competition law the general limitation period under Irish law for instituting an action by the CCPC or private litigant is six years from the date of accrual of the cause of action. The general limitation period under Irish law for bringing follow-on damages actions arising as a result of a breach of competition law is six years from the date the cause of action accrued. Notification 5. What are the notification requirements for restrictive agreements and practices? Notification There is no facility for notification of agreements to the Competition and Consumer Protection Commission (CCPC). Agreements must be self-assessed to ascertain whether they fall under section 4 of the Competition Act or Article 101 of the Treaty on the Functioning of the European Union and, if so, whether they are of the type that can benefit from an exemption or exclusion. Informal guidance/opinion The CCPC issued a declaration (Declaration in respect of Vertical Agreements and Concerted Practices (Vertical Declaration)) and accompanying notices to assist parties to an agreement to selfassess whether the agreement complies with section 4 of the Competition Act. The CCPC does not have a policy of providing informal guidance in individual cases. Responsibility for notification Not applicable. Relevant authority Not applicable. Form of notification Not applicable. Filing fee Not applicable. Regulators The Competition and Consumer Protection Commission (CCPC) investigates alleged breaches of the Act and can bring summary criminal proceedings and civil proceedings (see Question 1). For criminal prosecutions on indictment, which are usually instigated for hard-core cartel offences, the CCPC must prepare a file for the Director of Public Prosecutions (DDP) containing a recommendation that the DPP prosecute the alleged participants on indictment. The DPP ultimately decides whether to proceed with a prosecution on indictment. Third parties Investigations of suspected competition infringements by the CCPC can be initiated as a result of a third party complaint. A complaint can be made using an online complaints form on the CCPC website. The CCPC also accepts complaints made by letter, e-mail, fax or over the phone. While the CCPC will use its best endeavours not to divulge the identity of the complainant there may be some instances where it is legally obliged to do so. Complaints can also be made anonymously but there is no guarantee that the CCPC will be able to take action. 7. What rights (if any) does a complainant or other third party have to make representations, access documents or be heard during the course of an investigation? There is no requirement that a third party shows a special interest in order to make a complaint to the Competition and Consumer Protection Commission (CCPC). Representations The CCPC can require the submission of statements and testimony of named individuals under oath under a witness summons as part of an investigation. While there is no formal procedure, third parties and parties under investigation can request to be heard by the CCPC even if the CCPC does not exercise its witness summons powers to compel testimony from them. The CCPC has discretion whether or not to hear these parties but will generally agree to hear parties under investigation. Document access There is no right of access to the CCPC file in civil investigations, as the CCPC cannot take a decision binding on an undertaking or person establishing the infringement. If a civil case is brought to court by the CCPC, the defendant will receive documentation following discovery in the usual way. If a criminal case is brought, the defendant will receive the Director of Public Prosecutions' Book of Evidence. Be heard There are no prescribed procedures or rights for hearings in civil or criminal investigations. 8. What are the stages of the investigation and timetable? The Competition and Consumer Protection Commission (CCPC) has extensive powers to investigate suspected cartels and other competition infringements. The CCPC will usually begin an investigation as a result of a third party complaint or an immunity application. The CCPC also has a market-monitoring function and will sometimes begin an investigation on its own initiative.
If the CCPC decides to start an investigation into an alleged cartel, it may conduct an unannounced visit or "dawn raid" at the premises of the companies suspected of involvement with the cartel. To conduct a dawn raid, the CCPC must obtain a search warrant from the local District Court. Police officers seconded to the CCPC also have the power to arrest and question under caution any person suspected of a hard-core cartel offence. In addition, the CCPC may also issue a witness summons to an individual to appear before the CCPC for questioning under oath and may request that the individual produces any documents that it considers necessary. Witnesses summoned before the CCPC have the same rights and privileges as witnesses appearing before the High Court. The CCPC can take either civil or criminal proceedings to establish an infringement. In relation to alleged cartel activity, it is more likely that criminal proceedings will be taken. The CCPC can bring summary prosecutions by itself or recommend that the Director of Public Prosecutions brings a prosecution on indictment. There is no set timetable for investigations and prosecutions and, in practice, legal proceedings can last for several years. Publicity and confidentiality 9. How much information is made publicly available concerning investigations into potentially restrictive agreements or practices? Is any information made automatically confidential and is confidentiality available on request? Publicity The Competition and Consumer Protection Commission (CCPC) has a policy of not commenting publicly on cases under investigation. When cases are settled there is usually a brief reference in the CCPC's annual report and it may also publish a brief press release revealing the names of the parties and the outcome, which would usually be in the public domain in any event because of court proceedings. Where an investigation is closed without a court case, there is generally a short mention of the names of the parties and the outcome in the CCPC's annual report. If the matter is significant, there may also be a press release, a guidance note or details of the settlement agreement. Automatic confidentiality There is no provision for automatic confidentiality as such. Members, employees and authorised officers of the CCPC are subject to a general duty of confidentiality under section 25 of the Competition and Consumer Protection Act 2014. Confidentiality on request Following the outcome of a civil investigation that does not proceed to a court case, the CCPC has the policy of sending the parties under investigation a copy of its draft findings, allowing the parties to request the redaction of confidential information. 10. What are the powers (if any) that the relevant regulator has to investigate potentially restrictive agreements or practices? The Competition and Consumer Protection Commission (CCPC) has wide-ranging powers to investigate alleged restrictive agreements and practices. In particular, the CCPC has the power to: Summon witnesses before it and examine the witnesses under oath. Require any witness to produce to the CCPC any books, documents and records in his power or control. Enter, if necessary by the use of reasonable force, and search premises, dwellings and vehicles. Seize and retain books, documents or records relating to the suspected infringement. Inspect and take copies of or extracts from any such books, documents or records. Require any employee of an undertaking suspected of participating in an infringement to provide any books, documents or records relating to the suspected infringement that are in that person's power or control, and to give such information as may reasonably be required. To conduct a dawn raid, the CCPC must obtain a warrant from a District Court. The CCPC must produce a supporting affidavit to the judge in order to obtain the warrant. The CCPC must set out in the affidavit the reasons why it is justified in conducting a dawn raid at the relevant premises. Settlements 11. Can the parties reach settlements with regulators to bring an early resolution to an investigation? If so, what are the circumstances for doing so and the applicable procedure? The Competition (Amendment) Act 2012 introduced a new settlement-type procedure for the Competition and Consumer Protection Commission (CCPC). The CCPC can decide to close an investigation into a suspected infringement on the basis that the undertakings involved enter into agreements by which they undertake to refrain from certain behaviour. The undertakings enter into the agreements in consideration of the fact that the CCPC agrees not to bring High Court proceedings against them for the alleged infringement under investigation. The CCPC must apply to the High Court to make the undertakings provided to the CCPC an order of court. Certain criteria must be met, which include: Consent to the making of the order. The party obtaining legal advice in advance of consent. The agreement is clear and unambiguous and is capable of being complied with. The undertaking is aware that failure to comply with the order would result in contempt of court. Before making the application, the CCPC must publish the terms of the agreement on its website and in at least two national daily newspapers. 12. Can the regulator accept remedies (commitments) from the parties to address competition concerns without reaching an infringement decision? If so, what are the circumstances for doing so and the applicable procedure? The Competition (Amendment) Act 2012 introduced a new settlement-type procedure for the Competition and Consumer Protection Commission (CCPC). The CCPC can decide to close an investigation into a suspected infringement on the basis that the undertakings involved enter into agreements by which they undertake to refrain from certain behaviour. The undertakings enter into the agreements in consideration of the fact that the CCPC agrees not to bring High Court proceedings against them for the alleged infringement under investigation. Country Q&A
Country Q&A The CCPC must apply to the High Court to make the undertakings provide to the CCPC an order of court. Certain criteria must be met, which include: Consent to the making of the order. The party obtaining legal advice in advance of consent. The agreement is clear and unambiguous and is capable of being complied with. The undertaking is aware that failure to comply with the order would result in contempt of court. Before making the application, the CCPC must publish the terms of the agreement on its website and in at least two national daily newspapers. Penalties and enforcement 13. What are the regulator's enforcement powers in relation to a prohibited restrictive agreement or practice? offences under the Competition Act. Immunity under the programme is only available to the first participant in a given cartel that satisfies all the requirements of the programme, that is, no leniency is available for the second or subsequent applicant. Applications for immunity under the immunity programme are made to the CCPC. Where appropriate, the CCPC makes a recommendation to the DPP to grant immunity. If an undertaking qualifies for immunity, all current and/or former directors, officers, partners and employees who admit their involvement in the illegal cartel activity and who comply with the requirements of the immunity programme also qualify for immunity. Impact on agreements The Competition Act provides that a breach of section 4(1) does not prevent the court from applying, where appropriate, any relevant rules of law on the severance of those terms of an agreement that contravene that section from those that do not. Third party damages claims and appeals Orders Unlike the European Commission and most of the other competition authorities in member states of the EU, the Competition and Consumer Protection Commission (CCPC) does not have the power to reach an infringement decision that is binding on an undertaking or person. It must go to court to establish an infringement if parties under investigation do not agree to change their conduct following a CCPC investigation that concludes that there is an infringement. The CCPC can seek an injunction from the Circuit or High Court. The CCPC can also seek a declaration that the relevant provision of national or EU competition law has been breached. Fines The CCPC cannot impose civil or criminal fines and other sanctions of its own accord. Fines can only be imposed by a court. Additionally, under Irish law criminal fines are imposed on the criminal standard of proof (that is, beyond a reasonable doubt). On summary conviction, an undertaking or individual is liable to a fine of up to EUR5,000. On conviction on indictment, an undertaking or individual is liable to a fine of up to EUR5 million or 10% of turnover in the previous financial year, whichever is greater. Personal liability Where an offence under the Competition Act has been committed by an undertaking and the acts that constituted the offence were authorised, or consented to, by a director, manager, or other similar officer of the undertaking, that person is also guilty of an offence liable to prosecution. These individuals are presumed, until the contrary is proved, to have authorised or consented to carrying out the activity that constituted the offence. An individual who is found guilty of a hard-core cartel offence is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine of up to EUR5,000 or both. On conviction on indictment for such an offence, an individual is liable to imprisonment for a term not exceeding ten years and/or to a fine of EUR5 million or 10% of turnover. A person convicted on indictment of a competition offence is automatically disqualified from being a company director or from being in any manner involved in the promotion, formation or management of a company. In addition, the court may disqualify a person from being a director who has been found guilty of any offence under the Competition Act. Immunity/leniency The CCPC, in conjunction with the Director of Public Prosecutions (DPP), operates the Cartel Immunity Programme (immunity programme). The immunity programme applies to criminal cartel 14. Can third parties claim damages for losses suffered as a result of a prohibited restrictive agreement or practice? If so, what special procedures or rules (if any) apply? Are collective/class actions possible? Third party damages Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse that is prohibited by the relevant provision of the Competition Act or the Treaty on the Functioning of the European Union (TFEU) has a right of action against an undertaking or individual party to the abuse. Relief can be sought by way of an injunction, declaration or damages, including exemplary damages. A court finding that an undertaking has engaged in prohibited conduct or practices under the Competition Act or the TFEU has the status of res judicata. This means that plaintiffs in private damages relating to such conduct or practice can rely on such a finding to establish liability and actions only have to prove loss, causation and quantification of damages. Special procedures/rules Third party actions for damages can be brought in the Circuit or High Court. The general limitation period for actions arising as a result of a breach of competition law is currently six years from the date of accrual of the right of action. Decisions of the Competition and Consumer Protection Commission are not binding on the court but a court finding of a breach of competition law has the status of res judicata (see above, Third party damages). Collective/class actions The concept of a class action as such is not currently a feature of Irish law. A provision does exist in the rules of procedure for the Superior Courts to join persons having the same interest or matter in the same action. However, that provision is of limited utility because restrictions have been read into the procedure by the Irish Courts. In practice parties involved in related actions may agree to one action proceeding as a "pathfinder case" and the other parties (including defendants) may agree to be bound by the outcome of the "pathfinder case". There have been calls for reform to facilitate the taking of collective/related actions in Ireland, including in a report by the Law Reform Commission published in 2005. Recent developments in the UK and at the EU level, including the EU Recommendations on Collective Redress of 2013 and the Directive 2014/104/EU on Antitrust Damages Actions, may provide further stimulus for reform in this area.
15. Is there a right of appeal against any decision of the regulator? If so, which decisions, to which body and within which time limits? Are rights of appeal available to third parties, or only to the parties to the agreement or practice? Rights of appeal and procedure Decisions of the District Court can be appealed to the Circuit Court. Decisions of the Circuit Court can be appealed to the High Court. Appeals can be taken from the High Court to the Court of Appeal and, in certain circumstances, to the Supreme Court. Third party rights of appeal The Competition and Consumer Protection Commission (CCPC) does not have a right to establish a decision binding on undertakings so there is no right of appeal for a third party to challenge a CCPC decision not to proceed with an investigation and/or not to instigate legal proceedings in court. MONOPOLIES AND ABUSES OF MARKET POWER Scope of rules 18. Are there any broad categories of behaviour that may constitute abusive conduct? The Competition Act provides that abuse of a dominant position may involve, in particular: Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions. Limiting production, markets or technical development to the prejudice of consumers. Placing other trading parties at a competitive disadvantage by applying dissimilar conditions to equivalent transactions. Attaching supplementary obligations to contracts with other parties that have no connection with the subject of the contracts. Exemptions and exclusions 19. Are there any exemptions or exclusions? Country Q&A 16. Are monopolies and abuses of market power regulated under administrative and/or criminal law? If so, what are the substantive provisions and regulatory authority? Regulatory framework Irish competition law is broadly based on the EU competition law rules. Section 5 of the Competition Act reflects Article 102 of the Treaty on the Functioning of the European Union (TFEU) and prohibits 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. Section 7 of the Competition Act makes a breach of the abuse of dominance provisions of the Competition Act or the TFEU a criminal offence. Regulatory authority The Competition and Consumer Protection Commission (CCPC) is responsible for enforcing Irish and European Competition Law in Ireland. The CCPC investigates alleged breaches of the Competition Act and can bring summary criminal proceedings in the District Court and civil proceedings in the Circuit Court or High Court. However, the CCPC cannot bring criminal prosecutions on indictment of its own accord. 17. How is dominance/market power determined? There is no definition of either dominance or market power in the Competition Act. The test for dominance is the same as under EU law. Following the decision of the European Court of Justice in United Brand v Commission (Case C-27/76 [1978] ECR 27), a dominant position exists where there is "a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers". A merger or acquisition that is put into effect in accordance with the provisions of the Competition Act, together with any ancillary restraints that are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification are exempt from the prohibition. In addition, the Competition Act provides that it is good defence in criminal proceedings for abuse of dominance to prove that the act concerned was done following a determination made or a direction given by a statutory authority. Notification 20. Is it necessary (or, if not necessary, possible/advisable) to notify the conduct to obtain clearance or (formal or informal) guidance from the regulator? If so, what is the applicable procedure? There is no formal notification or clearance procedure. Investigations 21. What (if any) procedural differences are there between investigations into monopolies and abuses of market power and investigations into restrictive agreements and practices? The procedure is the same as for restrictive agreements (see Questions 6 to 9 and 11 to 12). 22. What are the regulator's powers of investigation? The Competition and Consumer Protection Commission's powers of investigation are the same as for restrictive agreements (see Question 10).
Country Q&A Penalties and enforcement 23. What are the penalties for abuse of market power and what orders can the regulator make? Collective/class actions The same rules apply as for restrictive agreements (see Question 14). EU LAW Orders The Competition and Consumer Protection Commission (CCPC) can seek an injunction from the Circuit or High Court. The CCPC can also seek a declaration that the relevant provision of national or EU competition law has been breached. In addition, where the court finds that an undertaking has abused its dominant position, the court may order that either: The undertaking discontinues the abuse. The undertaking adopts such measures for the purpose of ceasing to be in a dominant position or seeking an adjustment of that position. Fines The CCPC cannot impose fines and other sanctions of its own accord. Fines can only be imposed by a court. On summary conviction, an undertaking or individual found guilty of abusing a dominant position is liable to a fine of up to EUR5,000. On conviction on indictment, an undertaking or individual is liable to a fine of up to EUR5 million or 10% of turnover in the previous financial year, whichever is greater. Personal liability Where an offence under the Competition Act has been committed by an undertaking and the acts that constituted the offence were authorised, or consented to, by a director, manager, or other similar officer of the undertaking, that person is also guilty of an offence liable to prosecution. Such individuals are presumed, until the contrary is proved, to have authorised or consented to carrying out the activity which constituted the offence However, unlike hardcore cartel offences, individuals convicted of abusing a dominant position are not liable to terms of imprisonment. A person convicted on indictment of a competition offence is automatically disqualified from being a company director or from being in any manner involved in the promotion, formation or management of a company. In addition, the court may disqualify a person from being a director who has been found guilty of any offence under the Competition Act. Third party damages claims 24. Can third parties claim damages for losses suffered as a result of abuse of market power? If so, what special procedures or rules (if any) apply? Are collective/class actions possible? Third party damages The same rules apply as for restrictive agreements (see Question 14). In addition, where the court in a private damages action finds that an undertaking has abused its dominant position, the court may order that either: The undertaking discontinues the abuse. The undertaking adopts such measures for the purpose of ceasing to be in a dominant position or seeking an adjustment of that position. Special procedures/rules The same rules apply as for restrictive agreements (see Question 14). 25. Are there any differences between the powers of the national regulatory authority(ies) and courts in relation to cases dealt with under Article 101 and/or Article 102 of the TFEU, and those dealt with only under national law? There are no differences between cases dealt with under Article 101/102 of the Treaty on the Functioning of the European Union (TFEU) and those dealt with under the equivalent provisions of Irish law. The two systems of competition law operate in parallel in Ireland. Where conduct has or potentially has an effect on trade between member states, EU competition law will apply. Where conduct has an effect on trade only in Ireland, national competition law applies. If there is conflict between the two, EU competition law will prevail. For example, the BIDS case (ECJ Case C-209/07) commenced in the Irish Courts under the Irish competition law rules before the commencement of Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU (formerly Articles 81 and 82 of the EC Treaty) (Modernisation Regulation) but the proceedings were subsequently amended to refer only to Article 101 TFEU as there was deemed to be a likely effect on trade between member states. JOINT VENTURES 26. How are joint ventures analysed under competition law? The Competition Act provides that "the creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity" will constitute a merger under the act. In interpreting this concept, the Competition and Consumer Protection Commission (CCPC) will generally follow by analogy the approach of the European Commission to full-function joint ventures under Regulation (EC) 139/2004 on the control of concentrations between undertakings (Merger Regulation). Where a joint venture does not qualify as full-function, it may be assessed under the rules on restrictive agreements under the Competition Act, which are based on Article 101 of the Treaty on the Functioning of the European Union. The European Commission's guidelines are instructive in this regard (Guidelines on horizontal cooperation agreements and Guidelines on vertical restraints). INTER-AGENCY CO-OPERATION 27. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to infringements of competition law? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information)? The Competition and Consumer Protection Commission (CCPC) cooperates with competition authorities in other jurisdictions. The CCPC is a member of the European Competition Network, which facilitates co-operation in the consistent application of the European competition rules through arrangements for information sharing, assistance and consultation. The CCPC is also a member of the International Competition Network, which provides competition authorities with a forum for developing best practice in competition law and policy and addressing practical competition concerns.
In addition, section 46 of the Competition Act provides that the CCPC may enter into arrangements with foreign competition authorities to exchange information or provide other assistance, with the consent of the Minister for Enterprise, Trade and Employment. RECENT CASES 28. What are the recent developments or notable recent cases concerning abuse of market power? The following recent Irish competition cases are notable: An Post. The Competition Authority, which was the predecessor to the Competition and Consumer Protection Commission (CCPC), initiated an investigation into the application of An Post's zonal pricing scheme (scheme) for users of its publication services product between March 2012 and February 2013. The publication service involved the delivery by post of newspapers and periodicals in bulk. The authority found that the manner in which the scheme was implemented during the relevant period raised competition law concerns. An Post sought exclusivity from publishers by making a reduced tariff for the publication services product conditional on An Post providing all of a publisher's delivery requirements. The authority found that this essentially had the same effect as granting an exclusivity discount. As An Post likely held a dominant position in the relevant market, the authority concluded that the application of the scheme during this period likely amounted to a breach of the abuse of dominance provisions of the Competition Act and/or the Treaty on the Functioning of the European Union. Irish Medical Organisation (IMO). The Competition Authority initiated proceedings against the IMO in July 2013 following the IMO's refusal to rescind a decision of its General Practitioner (GP) Committee to withdraw certain patient services in protest at cuts to fees paid to GPs, which were proposed by the Minister for Health under the General Medical Services (GMS) contract. The IMO entered into a settlement agreement with the Competition Authority. On 28 May 2014, the IMO provided undertakings to the High Court: - not to organise or recommend the collective withdrawal of services or boycotts by its members; and - to advise its members that they should decide individually and not collectively whether to participate in publicly funded GP health services on such terms as are offered by the Minister for Health. The undertakings were therefore made an Order of the Court. PROPOSALS FOR REFORM 29. Are there any proposals for reform concerning restrictive agreements and market dominance? There are currently no proposals for reform. The Competition and Consumer Protection Act 2014 brought about significant reforms to the competition regime and entered into force on 31 October 2014. Country Q&A ONLINE RESOURCES Competition and Consumer Protection Commission (CCPC) W www.ccpc.ie Description: The official website of the CCPC. The Courts Service of Ireland W www.courts.ie Description: The official website of the Courts Service of Ireland. THE REGULATORY AUTHORITY Competition and Consumer Protection Commission (CCPC), Mergers Division T +353 1 402 5500 F +353 1 402 5501 E cormackeating@ccpc.ie W www.ccpc.ie Outline structure. The CCPC was formed on 31 October 2014 following the amalgamation of the Competition Authority and the National Consumer Agency. The CCPC is led by five members, including the Chairperson. Responsibilities. The CCPC has extensive legal powers and a broad mandate. The CCPC's competition responsibilities include: Bringing anti-competitive behaviour and practices that are harmful to consumers to an end, where necessary via court actions. Examining mergers and acquisitions that fall under the Competition Act to ensure that there is not a substantial lessening of competition in Ireland. Procedure for obtaining documents. The CCPC provides detailed information about completed investigations and court cases, merger decisions and guidance, and competition legislation, market studies and guidance notes.
Country Q&A Practical Law Contributor profiles Pat O'Brien, Partner Arthur Cox T +353 1 618 0519 F +353 1 618 0705 E pat.obrien@arthurcox.com W www.arthurcox.com Richard Ryan, Partner Arthur Cox T +353 1 618 0606 E Richard.ryan@arthurcox.com W www.arthurcox.com Professional qualifications. Ireland, Solicitor, 1993 Areas of practice. EU and competition; cartel and anti-trust investigations; abuse of dominance; merger control; state aid; competition litigation. Non-professional qualifications. BCL, University College Cork, Ireland, 1987; Diploma in Advanced European Law, College of Europe, Bruges, Belgium, 1988 Recent transactions Advising Irish Cement Ltd in relation to an unannounced inspection (dawn raid) by the CCPC at its premises. Advising a software company in Irish competition law investigation alleging use of its platform for sharing of competitive information. Advising CRH on Irish aspects of EU merger control notification concerning acquisition of disposal assets from Lafarge/Holcim. Advising Roadstone in on-going Irish High Court and Supreme Court competition litigation instigated by Goode Concrete and Framus. Advising Vodafone Ireland on EU merger control involving a joint venture with the Irish electricity incumbent ESB. Advising Centrica on EU merger control involving an acquisition of the supply and generation business of Bord Gais Eireann. Advising Beef Industry Development Society before the High Court of Ireland, the Supreme Court of Ireland and the European Court of Justice in a legal challenge taken by the CCPC of a proposed rationalisation scheme for the beef processing sector in Ireland. Languages. English, some French Professional associations/memberships. Law Society of Ireland, Irish Society for European Law, ABA. Publications EU Competition Law Handbook, Sweet & Maxwell, annual Irish contributor. Public Enforcement of Competition Law, Law Business Research, joint author of the Irish chapter. Professional qualifications. New York, US, 2000; Ireland, Solicitor, 2003 Areas of practice. Competition litigation; EU and Irish merger control; competition aspects of commercial agreements; competition compliance programmes; EU state aid law; regulated industries; sectoral studies by regulators. Non-professional qualifications. LLB, Trinity College, Dublin, 1998; Diploma in Applied Finance Law, Law Society of Ireland, 2003; Diploma in Economics for Competition Law, King's College London, 2008 Recent transactions Advising the Department of Finance of Ireland and the National Treasury Management Agency on state aid, competition and merger control issues arising in relation to the support measures taken by Ireland in the banking sector since September 2008 in response to the financial crisis, including the State bank guarantee schemes, the recapitalisations of banks, the establishment of the National Asset Management Agency (NAMA) to acquire and manage impaired assets of banks, bank mergers, the reorganisation of the Irish banking sector and the restructuring of banks. Advising Irish Cement in relation to an unannounced inspection (dawn raid) by the CCPC at its premises. Advising the Central Bank of Ireland on state aid and competition law issues arising in relation to proposals for the reorganisation of the credit union sector in Ireland and on obtaining court orders to transfer credit unions for financial stability purposes. Advising the Minister for Finance in relation to a challenge before the High Court of the EUR2.7 billion recapitalisation of Irish Life & Permanent Group Holdings in July 2011. Advising Vodafone Ireland on securing merger control clearance for the establishment with ESB of a joint venture to build and operate a high capacity fibre-to-the-building network to homes and businesses in Ireland. Advising CRH on securing merger control clearance for its acquisitions of Ancon Group (construction accessories), Carson Industries (grade-level enclosures), Halfen (construction accessories), Synotec (construction accessories) and Secil (cement and building materials). Advising Beef Industry Development Society before the High Court of Ireland, the Supreme Court of Ireland and the European Court of Justice in a legal challenge taken by the CCPC of a proposed rationalisation scheme for the beef processing sector in Ireland. Languages. English, some French, Spanish Professional associations/memberships. Law Society of Ireland; Irish Society for European Law; European Lawyers' Union; Institute of European Affairs; American Bar Association. Publications Enhancement of Competition Law Enforcement under the Competition and Consumer Protection Act 2014, Client Briefing, January 2015. The EU Directive on Damages Actions for Breaches of Competition Law, Client Briefing, January 2015. The New Cartel Immunity Programme, Client Briefing, 2015. Collective Actions and Punitive Damages in Ireland, XXVIII European Lawyers' Union General Congress, June 2014. The Irish Banking Crisis: A Special Case, XXVII European Lawyers' Union General Congress, June 2013. Quarterly reports on competition law developments in Ireland for the European Competition Journal.