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24 1991

COMPETITION ACT, 1991

PART II

Rules of Competition

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 subject of such contracts.

(2) The Competition Authority established by this Act (“the Authority”) may in accordance with section 8 grant a licence for the purposes of this section in the case of—

(a) any agreement or category of agreements,

(b) any decision or category of decisions,

(c) any concerted practice or category of concerted practices,

which in the opinion of the Authority, 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 which does not—

(i) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives;

(ii) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(3) (a) A licence under subsection (2) shall, while it is in force, and in accordance with its terms, permit the doing of acts which would otherwise be prohibited and void under subsection (1).

(b) Where a licence under subsection (2) covers a category of agreements, decisions or concerted practices, any agreements, decisions or concerted practices (as the case may be) within that category which comply with the terms of the licence need not be notified under section 7 to benefit from the licence while it is in force.

(4) The Authority may certify that in its opinion, on the basis of the facts in its possession, an agreement, decision or concerted practice notified under section 7 does not offend against subsection (1).

(5) Before granting a licence or issuing a certificate under this section, the Authority may invite any Minister of the Government concerned with the matter to offer such observations as he may wish to make.

(6) On granting a licence or issuing a certificate under this section, the Authority shall forthwith give notice in the prescribed manner to every body to which it relates stating the terms and the date thereof and the reasons therefor and cause the notice to be published in Iris Oifigiúil and cause notice of the grant of the licence or issue of the certificate, as the case may be, to be published in one daily newspaper published in the State.

(7) 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.

(8) In respect of an agreement, decision or concerted practice such as is referred to in subsection (7) 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.

Abuse of dominant position.

5. —(1) Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in a substantial 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.

Right of action.

6. —(1) Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or 5 shall have a right of action for relief under this section against any undertaking which is or has at any material time been a party to such agreement, decision or concerted practice or has been guilty of such abuse.

(2) (a) Subject to paragraph (b), an action under this section shall be brought in the High Court.

(b) An action under this section may be brought in the Circuit Court in respect of any abuse which is prohibited under section 5 but any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort.

(3) The following reliefs, or any of them, may be granted to the plaintiff in an action under this section:

(a) relief by way of injunction or declaration,

(b) subject to subsection (6), damages, including exemplary damages.

(4) The Minister shall have a right of action, in respect of an agreement, decision or concerted practice or an abuse which is prohibited under section 4 or 5 , for the reliefs specified in subsection (3) (a).

(5) (a) Where in proceedings under this section it is finally decided by the Court that an agreement, decision or concerted practice which is in question infringes the prohibition in section 4 (1), any certificate in force under section 4 (4) in relation to that agreement, decision or concerted practice shall thereupon cease to have force and effect as from the date of the order of the Court and the Court shall cause a certified copy of the said order to be served on the Authority.

(b) The Authority shall, as soon as may be, cause notice of the fact that, pursuant to paragraph (a), its certificate has ceased to have force and effect to be published in Iris Oifigiúil.

(6) Where there is or has been in force a certificate pursuant to section 4 (4) in relation to an agreement, decision or concerted practice, and that certificate has not been revoked under section 8 (6) (b), a claimant shall not be entitled to damages pursuant to this section for a contravention of the prohibition in section 4 (1) in any proceedings under this section commenced after the issue of that certificate for loss suffered in consequence of that agreement, decision or concerted practice in respect of the period during which the certificate is or has been in force, but this subsection shall not prejudice any right to damages for a contravention of the prohibition in section 5 .

(7) This section shall not apply to any agreement, decision or concerted practice to which section 7 (2) applies which has been duly notified to the Authority until the Authority has decided to grant or refuse to grant a licence under section 4 (2), or to issue a certificate or not to issue a certificate under section 4 (4), in relation thereto and any appeal to the Court under section 9 in relation to the licence or the certificate has been concluded.

(8) The Authority shall as soon as may be cause to be published in Iris Oifigiúil any decision of the Authority referred to in subsection (7) and a copy of any such notice shall be prima facie evidence of the making and content of such decision and of the date thereof in any action under this section.

Notification of agreements, decisions and concerted practices to Authority.

7. —(1) Every agreement, decision and concerted practice of a kind described in section 4 (1) which comes into existence after the commencement of that section in respect of which the parties thereto request a licence under section 4 (2) or a certificate under section 4 (4) of that section shall be notified to the Authority.

(2) Every agreement, decision and concerted practice of a kind described in section 4 (1) which is in existence at the commencement of that section and in respect of which the parties seek a licence under section 4 (2) or a certificate under section 4 (4) shall be notified to the Authority within one year of such commencement.

(3) A licence under section 4 (2) or a certificate under section 4 (4) shall not be granted until the agreement, decision or concerted practice (as the case may be) has been notified to the Authority but any such licence may in the case of an agreement, decision or concerted practice to which subsection (1) applies be made retrospective to the date of notification under that subsection.

(4) A notification in accordance with this section shall be accompanied by such fee as may be prescribed.

(5) For the purpose of the exercise of its functions in relation to licences under section 4 (2) and certificates under section 4 (4) the Authority may accept such observations or submissions from persons claiming to be interested as it may think proper.

(6) The functions of the Authority under this Act shall be carried out in accordance with such procedures, if any, as may be prescribed.

Licence of Authority under section 4 (2) and certificate of Authority under section 4 (4).

8. —(1) A licence of the Authority under section 4 (2) shall be granted for a specified period subject to such conditions as may be attached to and specified in the licence.

(2) The Authority may from time to time, on the application of a party to a request under section 7 , extend the period of a licence if it is of opinion that the requirements of section 4 (2) continue to be fulfilled and the Authority shall, as soon as may be, cause to be published in Iris Oifigiúil notice of any such extension.

(3) Where the Authority is of the opinion that, having regard to the requirements of section 4 (2) and to the basis upon which a licence under that subsection was granted—

(a) there has been a material change in any of the circumstances on which the decision was based,

(b) any party commits a breach of any obligation attached to the decision,

(c) the licence was based on materially incorrect or misleading information, or

(d) any party abuses the permission granted to it by the licence,

the Authority may revoke or amend the licence and, without prejudice to the generality of this subsection, may in particular insert in a licence conditions the effect of which is to prohibit specific acts by any party thereto which would otherwise be authorised pursuant to such a licence.

(4) The Authority shall as soon as may be cause to be published in Iris Oifigiúil notice of every revocation or amendment of a licence under section 4 (2).

(5) Every licence under section 4 (2) shall have effect in accordance with its terms, subject to any amendment thereof including any conditions inserted therein under subsection (3) of this section.

(6) The Authority may revoke a certificate under section 4 (4) where it is of opinion that—

(a) there has been a material change in any of the circumstances on which the certificate was based, or

(b) the certificate was based on materially incorrect or misleading information.

(7) The Authority shall as soon as may be cause to be published in Iris Oifigiúil notice of every revocation under subsection (6).

Appeal to High Court.

9. —(1) Any undertaking or association of undertakings concerned, or any other person aggrieved by a licence or a certificate of the Authority under section 4 (2) or (4), or the Minister, may appeal to the High Court within 28 days of publication pursuant to this Act of the licence or certificate and on the hearing of any such appeal the Court may confirm, amend or revoke the licence so appealed against, or, in the case of such a certificate, may cancel or refuse to cancel the certificate.

(2) The right of appeal in relation to a licence under section 4 (2) includes the right to appeal against the insertion or exclusion of conditions attaching to any exemption granted.

(3) The Court may order that a licence or certificate in respect of which an appeal has been brought under this section shall be suspended pending the hearing and conclusion of the appeal.

(4) Any undertaking or association of undertakings concerned or the Minister may within 28 days of the notification or publication pursuant to this Act of a revocation or amendment by the Authority, pursuant to section 8 (3), of a licence under section 4 (2), or of a revocation by the Authority, pursuant to section 8 (6), of a certificate under section 4 (4), appeal to the High Court.

(5) The Court may extend the time specified in subsection (1) or (4) in any case where it seems just and convenient to do so.