Competition (Amendment) Act 2022

PART 1 Preliminary and general

1. Short title, collective citation, construction and commencement

1. (1) This Act may be cited as the Competition (Amendment) Act 2022.

(2) Parts 2 and 3 and the Competition Acts 2002 to 2017 may be cited together as the Competition Acts 2002 to 2022.

(3) This Act shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment 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.

2. Definitions

2. In this Act—

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

“Principal Act” means the Competition Act 2002.

3. Transitional provisions

3. (1) Where a competent authority begins, on or after the date which section 13 comes into operation, an investigation into a suspected infringement of relevant competition law—

(a) where the investigation relates wholly to conduct, behaviour or any matter that took place before the 4th day of February 2021, the provisions of the Principal Act, the Act of 2014 and the Communications Regulation Act 2002, as the case may be, shall, notwithstanding the amendments made to those enactments by Parts 2, 3, 4 and 6, apply to the investigation as if those amendments had not been made, and

(b) where the investigation relates to conduct, behaviour or any matter that, in whole or in part, took place on or after the 4th day of February 2021, the provisions of the Principal Act, the Act of 2014 and the Communications Regulation Act 2002, as the case may be, shall apply to the investigation as amended by such provisions of Parts 2, 3, 4 and 6 as are in operation when the investigation takes place.

(2) Subject to subsection (1), proceedings (whether civil or criminal) or investigations taken or carried out by a competent authority, or any proceedings taken by the Director of Public Prosecutions, that—

(a) arise from, or are otherwise connected to, an investigation into a suspected infringement of relevant competition law, and

(b) are pending or open on the date on which section 13 comes into operation,

shall, where they are continued, be so continued (and any penalty, forfeiture or punishment in respect of such infringement may be imposed and carried out) as if the amendments made by Parts 2, 3, 4 and 6 had not been made.

(3) In this section—

“competent authority” has the meaning it has in the Principal Act;

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

(a) section 4 of the Principal Act;

(b) section 5 of the Principal Act;

(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.

PART 2 Amendments to Principal Act - relevant competition law

4. Amendment of section 3 of Principal Act

4. Section 3 of the Principal Act is amended—

(a) by the insertion of the following definitions in subsection (1):

“‘Act of 2002’ means the Communications Regulation Act 2002;

‘Act of 2014’ means the Competition and Consumer Protection Act 2014;

‘Article 16(1) periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘Article 16(2) periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘administrative sanctions’ means the following sanctions imposed by an adjudication officer under Part 2D—

(a) structural or behavioural remedies,

(b) administrative financial sanctions under section 15AA, or

(c) periodic penalty payments,

and ‘administrative sanctions proceedings’ shall be interpreted accordingly;

‘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 under Part 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 by section 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 of section 28N(5) );

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

‘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[^3] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

‘hearing requirement’ means a requirement imposed by an adjudication officer on an undertaking or association of undertakings under section 15V or 15W;

‘hearing requirement periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘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 by section 15AD and, 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;

‘prohibition notice’ has the meaning assigned to it by section 15H;

‘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 with section 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 in section 15L(5)(d);

‘structural or behavioural remedy’ has the meaning assigned to it by section 15Z;”,

and

(b) by the substitution of the following definition for the definition of “authorised officer” in subsection (1):

“‘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;”.

5. Amendment of section 4 of Principal Act

5. Section 4 of the Principal Act is amended, in subsection (1)—

(a) in paragraph (e), by the substitution of “subject of such contracts, or” for “subject of such contracts.”,

(b) by the insertion of the following paragraph after paragraph (e):

“(f) are concerned with bid-rigging.”,

and

(c) by the insertion of the following subsection after subsection (10):

“(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.”.

6. Amendment of section 6 of Principal Act

6. Section 6 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) An undertaking that—

(a) enters into, or implements, an agreement,

(b) makes or implements a decision, or

(c) engages in a concerted practice,

that is prohibited by section 4(1) or by Article 101(1) of the Treaty on the Functioning of the European Union, and that—

(i) intentionally or recklessly acts to prevent, restrict or distort competition, or

(ii) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.”,

and

(b) in subsection (2)—

(i) in paragraph (b), by the substitution of “sales,” for “sales, or”,

(ii) in paragraph (c), by the substitution of “customers, or” for “customers,”, and

(iii) by the insertion of the following paragraph after paragraph (c):

“(d) engage in bid-rigging.”.

7. Amendment of section 7 of Principal Act

7. Section 7 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) An undertaking that acts in a manner prohibited by section 5(1) or by Article 102 of the Treaty on the Functioning of the European Union, and which—

(a) intentionally or recklessly acts to prevent, restrict or distort competition, or

(b) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.”.

8. Limitation of certain prosecutions

8. The Principal Act is amended by the insertion of the following sections after section 7:

“Limitation of certain prosecutions

7A. An undertaking shall not be prosecuted for an offence under section 6 unless the offence—

(a) relates to agreements between undertakings, decisions by associations of undertakings or concerted practices, and

(b) involves—

(i) price fixing,

(ii) market sharing,

(iii) output restrictions,

(iv) bid-rigging,

(v) collective boycott agreements,

(vi) sharing information concerning future prices and future quantities of production, or

(vii) restricting the ability of undertakings to carry out research and development or to continue to use their own technology for future research and development.

Defences - administrative proceedings

7B. (1) In administrative proceedings in respect of a breach of section 4 or Article 101 of the Treaty on the Functioning of the European Union—

(a) 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—

(i) 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,

(ii) engage in bid-rigging,

(iii) limit output or sales, or

(iv) 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,

(b) 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), and

(c) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union, it shall be a good defence to prove that—

(i) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union,

(ii) 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 European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union, or

(iii) the agreement, decision or concerted practice did not contravene that prohibition by virtue of Article 101(3) of the Treaty on the Functioning of the European Union.

(2) In administrative proceedings in respect of a breach of section 4 or 5 or of Article 101 or Article 102 of the Treaty on the Functioning of the European Union—

(a) it shall be a good defence to prove that the act concerned was done pursuant to a determination made or a direction given by a statutory body, and

(b) for the purpose of determining liability, 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.

(3) In this section—

‘administrative proceedings’ means proceedings, including proceedings before an adjudication officer or court, relating to any of the following:

(a) a prohibition notice;

(b) a statement of objections under section 15L;

(c) a referral to an adjudication officer under section 15M;

(d) administrative sanctions;

‘competing undertakings’ means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.”.

9. Amendment of section 8 of Principal Act

9. Section 8 of the Principal Act is amended—

(a) in subsection (1), by the substitution of the following paragraph for paragraph (b):

“(b) on conviction on indictment—

(i) in the case of an undertaking that is not an individual, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or

(ii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €50,000,000, or 20 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 10 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.”,

and

(b) in subsection (2), by the substitution of the following paragraph for paragraph (b):

“(b) on conviction on indictment, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction.”.

10. Amendment of section 9 of Principal Act

10. Section 9 of the Principal Act is amended—

(1) in subsection (1)—

(a) by the substitution of “who appears to the court or adjudication officer, as the case may be,” for “who appears to the court”, and

(b) in paragraph (b)—

(i) by the substitution of “explanation to the court or adjudication officer, as the case may be,” for “explanation to the court”, and