Competition Act 2002

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Competition Act, 2002.

2. Commencement.

2.—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.

3. Interpretation.

3.—(1) In this Act, unless the context otherwise requires—

F1[“Act of 2002”means the Communications Regulation Act 2002;]

F2[“Act of 2009”means theBroadcasting Act 2009;]

F1[“Act of 2014”means the Competition and Consumer Protection Act 2014;

“administrative sanctions”means the following sanctions imposed by an adjudication officer underPart 2D—

(a) structural or behavioural remedies,

(b) administrative financial sanctions undersection 15AA, or

(c) periodic penalty payments,

and "administrative sanctions proceedings" shall be interpreted accordingly;

"Article 16(1) periodic penalty payment" has the meaning assigned to it insection 15AD;

“Article 16(2) periodic penalty payment”has the meaning assigned to it insection 15AD;]

F3[“associated facilities”, in relation to an electronic communications undertaking, has the same meaning as in section 2(1) of theCommunications Regulation Act 2002(No. 20 of 2002);]

F4[“authorised officer”—

(a) in relation to the functions performed by the Competition and Consumer Protection Commission, has the same meaning as it has in the Act of 2014, and

(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning it has in section 39 of the Act of 2002;]

“Authority” means the Competition Authority continued in being by section 29;

F6[…]

F1[“breach of a procedural requirement”refers to any of the following contraventions by an undertaking, or by an association of undertakings, of an obligation or requirement imposed by a competent authority in connection with an investigation underPart 2C:

(a) obstructing or impeding the exercise by—

(i) an authorised officer, within the meaning of the Act of 2014, of a power referred to in section 37 or 37A of that Act, or

(ii) an authorised officer, within the meaning of the Act of 2002, of a power referred to in section 39 or 39A of that Act;

(b) breaking a seal affixed by an authorised officer, within the meaning of the Act of 2002 or the Act of 2014, as the case may be, or other accompanying person authorised or appointed by the competent authority, for the purpose of securing any document, record, data equipment, computer or place referred to in—

(i) section 37(2)(c) of the Act of 2014, or

(ii) section 39(3B)(c) of the Act of 2002;

(c) giving a false or misleading answer, failing to answer without reasonable excuse, refusing to provide a complete answer to, or otherwise failing to comply with, a requirement referred to in—

(i) section 37(2) of the Act of 2014, or

(ii) section 39(3B) of the Act of 2002;

(d) providing false, incomplete or misleading information, or failing, without reasonable excuse, to supply information, including books, documents and records, in the power or control of the undertaking or association of undertakings within the time limit specified by the competent authority—

(i) in response to an examination, requirement or notice referred to in paragraph (b), (c) or (d) of section 18(1) or section 37A of the Act of 2014, or

(ii) in response to a requirement under section 38A of the Act of 2002;

(e) failing without reasonable excuse to attend before the competent authority in response to—

(i) a summons referred to in section 18(1)(a) of the Act of 2014,

(ii) a requirement referred to in section 37A of the Act of 2014, or

(iii) a requirement under section 38A of the Act of 2002;

“bid-rigging”has the meaning assigned to it bysection 4;

“cartel”means an agreement or concerted practice between two or more competing undertakings aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices including the following:

(a) the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights;

(b) the allocation of production or sales quotas;

(c) the sharing of markets;

(d) the sharing of customers;

(e) bid-rigging;

(f) restrictions of imports or exports;

(g) anti-competitive actions against other competing undertakings;

“commercially sensitive information”means information the disclosure of which could reasonably be expected to—

(a) substantially and materially prejudice or harm the commercial, financial or industrial interests of the undertaking or person to which it relates,

(b) substantially prejudice or harm any other interests of a person in the conduct of the person’s business, profession or occupation, or

(c) substantially prejudice or harm the interests of the State or a public body (within the meaning ofsection 28N(5));]

F3[F5[“Commission”means the Competition and Consumer Protection Commission;]

“competent authority”—

(a) except as provided by paragraph (b), means the Competition Authority, and

(b) if the Competition Authority and theF5[Commission for Communications Regulation]have, undersection 47E, agreed that theF5[Commission for Communications Regulation]should, in relation to a particular matter, perform the functions conferred on the relevant authority byPart 2, or the Minister has made a determination under that section that theF5[Commission for Communications Regulation]should exercise those functions in relation to that matter, also means theF5[Commission for Communications Regulation];

“Competition Authority”means the Authority continued by section 29;]

“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;

F2[“Council Regulation”means Council Regulation (EC) No. 139/2004 of 20 January 2004^1on the control of concentrations between undertakings;]

“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;

F1[“Directive”means Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018^2to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market;]

“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;

F3[F5[“electronic communications network”has the same meaning as it has in the Act of 2009;]

“electronic communications service”has the same meaning as insection 2of theCommunications Regulation Act 2002;

“electronic communications undertaking”means an undertaking that provides an electronic communications network or an electronic communications service or associated facilities;]

F1[“enforcement proceedings”means proceedings before an adjudication officer or court for the application of relevant competition law, but does not include proceedings—

(a) that are closed by the competent authority under this Act,

(b) in relation to which the competent authority has concluded that there are no grounds for further action, or

(c) in relation to which the European Commission has made a decision under Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002^3on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

“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;

F1[“hearing requirement”means a requirement imposed by an adjudication officer on an undertaking or association of undertakings undersection 15Vor15W;

“hearing requirement periodic penalty payment”has the meaning assigned to it insection 15AD;]

“Minister” means the Minister for Enterprise, Trade and Employment;

F1[“notified undertaking”means an undertaking, or an association of undertakings, as the case may be, to which a prohibition notice has been issued;

“periodic penalty payment”has the meaning assigned to it bysection 15ADand, where used without qualification, includes an Article 16(1) periodic penalty payment, an Article 16(2) periodic penalty payment and a hearing requirement periodic penalty payment;]

“prescribed” means prescribed by regulations made by the Minister under this Act;

F1[“prohibition notice”has the meaning assigned to it bysection 15H;]

“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;

F1[“relevant competition law”means any of the following provisions:

(a)section 4;

(b)section 5;

(c) Article 101 of the Treaty on the Functioning of the European Union;

(d) Article 102 of the Treaty on the Functioning of the European Union;

“relevant Minister”shall be interpreted in accordance withsection 52(3);

“relevant recipient”, in relation to a statement of objections, means an undertaking or an association of undertakings, as the case may be, on which the statement of objections has been served;

“settlement submission”means a submission by, or on behalf of, an undertaking to a competent authority—

(a) describing the undertaking’s acknowledgement of, or renouncing any right of the undertaking to dispute its participation in, an infringement of relevant competition law and its responsibility for that infringement, and

(b) made for the purpose of requesting that the competent authority make a referral, in relation to that infringement, referred to insection 15L(5)(d);

“structural or behavioural remedy”has the meaning assigned to it bysection 15Z;]

“statutory body” means a person specified in column (1) of Schedule 1;

“Treaty” means the Treaty establishing the European Community;

F5[“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 and, where the context so admits, shall include an association of undertakings.]

(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).

PART 2 Competition Rules and Enforcement

4. Anti-competitive agreements, decisions and concerted practices.

4.—(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 F7[subject of such contracts, or]

F8[(f) are concerned with bid-rigging.]

(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).

F9[(3) Either competent authority may in writing declare that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5), but only with the concurrence of the other competent authority. If the competent authority that made the declaration later forms the opinion that the category no longer complies with those conditions, it may revoke the declaration, but only with the concurrence of the other competent authority.]

(4) F9[The competent 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.

F8[(11) In this section—

"bid-rigging" means the formation or continuation of an agreement or concerted practice between undertakings concerning or relating to their participation or non-participation in a relevant bidding process without informing the person requesting bids or tenders, and without prejudice to the generality of the foregoing includes the following:

(a) an agreement whereby one or more undertakings agree not to submit a bid or tender in a relevant bidding process, or agree to withdraw a bid or tender submitted as part of such a process;

(b) an agreement whereby one or more undertakings submit a bid or tender, as part of a relevant bidding process, on terms, or subject to conditions, arrived at in accordance with the agreement or concerted practice between such undertakings;

(c) collusive tendering;

"relevant bidding process" means a process by which bids or tenders to supply a product or service, to produce a product or to enter into a concession contract are requested.]

5. Abuse of dominant position.