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ByrneWallace I Why Ireland? A guide to doing business in Ireland I 23RIGHT OF ACTION & IMPOSITIONOF PENALTIESIn serious cases, such as price fixing,where an agreement is found to breachcompetition law, it will be void (i.e.legally unenforceable) as a matter oflaw. Other penalties include (a) finesof up to the greater of 4 million or10% of world-wide turnover on theundertakings in breach of either ofthese provisions and on the officersof such undertakings (e.g. directors,managers); as well as (b) civil sanctionson undertakings and the executivesof undertakings in breach of the Act.In addition, a finding of the existenceof an anti-competitive arrangementmay result in criminal sanctions, withpotential imprisonment of officers ofthe undertaking for up to five years inthe event that cartel offences have beencommitted (e.g. price fixing). Criminalactions for breaches of the Act are takenby the Director of Public Prosecutions,with a number of successful convictionshaving been secured in recent years.An aggrieved party, who has suffered asa result of any action prohibited underthe Act, has a right of civil action forrelief.Under the Act, a Court may granteither an injunction restraining thecontinuance of the matter complainedof or impose a declaration, along withgranting damages (including exemplarydamages). Where the court has decidedthat an undertaking has abused itsdominant position contrary to the Act, itmay also require the dominant positionto be discontinued or adjusted, forexample, by ordering the dominantundertaking to divest assets.ENFORCEMENT BY THE CCPCThe CCPC enjoys far-reachingenforcement and investigative powersunder the Act, including the ability toconduct dawn raids on companies inIreland, where it has reason to believethat evidence may exist in relation toanti-competitive practices. As part ofthe dawn-raid process (covered by anappropriate search warrant), the CCPCmay search executives’ homes and cars,in addition to business premises, withthe ability to seize documentation. TheCCPC may also summon executives /individuals to provide evidence on oathand produce documents relating toalleged anti-competitive practices.IRISH MERGER REGIMEA notifiable merger arises once control(essentially the capability of exercisingdecisive influence) over an undertakingis acquired, regardless of how suchcontrol is acquired. Asset acquisitions,as well as full function joint ventures, arealso notifiable. It is mandatory under theAct for undertakings to notify the CCPCof any merger or acquisition whichexceeds the relevant thresholds. Thosethresholds being:• the aggregate turnover in the Stateof the undertakings involved is notless than €50 million; and• the turnover in the State of eachof two or more of the undertakingsinvolved is not less than €3 million.The CCPC has issued a guidancenote, clarifying the term “carrying onbusiness” to mean either where: a) thecompany has a physical presence onthe island (such as a registered office,branch or agency) and sales and/orsupply of services to customers onthe island of Ireland; or, b) where thecompany has sales into the island ofIreland of at least €2 million in the mostrecent financial year.Where the above thresholds are notmet, but the merger gives rise to seriouscompetition concerns, the parties mayvoluntarily notify the transaction to theCCPC, for its assessment. This gives theparties legal comfort that, once clearedby the CCPC, the transaction will notbe investigated under either Section4 or 5 of the Competition Act 2002, ifimplemented.The test applied by the CCPC iswhether the merger or acquisition wouldsubstantially lessen competition in Irishmarkets for goods or services.Failure to notify a notifiable merger isan offence, punishable by a fine of up to€250,000. Where a notifiable merger isimplemented without being cleared bythe CCPC, the merger is void as a matterof Irish law.VERTICAL AGREEMENTSThe CCPC Declaration in Respect ofVertical Agreements and ConcertedPractices of 1 December 2010, providesa safe-harbour for vertical agreements,including exclusive and selectivedistribution agreements, that giveslegal comfort to suppliers and buyersthat relevant vertical agreements do notbreach the prohibition of Section 4(1)of the Act, subject to certain conditionsbeing met, including: