1E9Ct5D

22 I Why Ireland? A guide to doing business in Ireland I ByrneWallaceCompetition andantitrustIreland’scompetition, oranti-trust, regimeis governed bythe CompetitionActs 2002 to2014. The Actsprovides for bothcivil and criminalsanctions againstboth businessesand executives,where they breachcompetition law.The Competitionand ConsumerProtectionCommission isresponsible forthe enforcementof both Irish andEU competitionlaw in Ireland, withEU competitionlaw applying topractices whichhave an affect oninter-state trade,within the EuropeanUnion.Enforcement and administration of theCompetition Acts, 2002 to 2014 is theresponsibility of the Competition andConsumer Protection Commission(“CCPC”). Whilst the CCPC caninvestigate anti-competitiveconduct and secure undertakingsfrom businesses to desist with anticompetitiveconduct, only the IrishCourts may award damages or imposefines for anti-competitive practices.ANTI-COMPETITIVE AGREEMENTSSection 4 of the Competition Act 2002governs anti-competitive arrangementsand is modelled on Article 101 of theTreaty on Functioning of the EuropeanUnion (TFEU). Both the CCPC and IrishCourts apply EU competition law, as wellas domestic competition law, in Ireland,where the result of any agreement orpractice has an affect of trade betweenMember States (of the EU).Section 4 prohibits anti-competitivearrangements between undertakings,decisions by associations ofundertakings and concerted practicesinvolving undertakings which prevent,restrict or distort competition in Irelandor any part of Ireland, unless theycomply with certain specific conditionsset out in Section 4 of the Act or are thesubject of a declaration (see VerticalRestraints below at Sect 7, for anexample of a declaration).Section 4(5) of the Act sets out theconditions which must be fulfilled for anindividual agreement to benefit from theexemption. These are:• the arrangement must contributeto improving the productionor distribution of goods orthe provision of services or topromoting technical or economicprogress• the arrangement must allowconsumers a fair share of theresulting benefit• the arrangement must not imposeon the undertakings concerned anyterms which are indispensable tothe attainment of those objectives• the arrangement must not affordundertakings the possibility ofeliminating competition in respectof a substantial part of the productor services in question.ABUSE OF DOMINANCEThe provision of the Act relating toabuse of dominance is primarily basedon Article 102 of the TFEU. The Actprohibits the abuse of dominance byany undertaking having a dominantposition in Ireland or in any part ofIreland. The Act does not seek to definean abuse of a dominant position, but itdoes indicate that the following mattersmay be regarded as an abuse:• directly or indirectly imposing unfairpurchase or selling prices or otherunfair trading conditions• limiting production, markets ortechnical development to theprejudice of consumers• applying dissimilar conditions toequivalent transactions with othertrading parties thereby placingthem at a competitive disadvantage• making the conclusion of contractssubject to the acceptance byother parties of supplementaryobligations which by their natureor according to commercial usagehave no connection with the subjectof such contract.Examples of abuse of dominanceinclude predatory and discriminatorypricing, refusal to supply, marginsqueeze, and tying /bundling, amongstothers.