Section 2 of the 1996 Act also provides for certain defences against proceedings taken under the Section. The defences are:-

  • that the defendant did not know or could not reasonably have been expected to have known that the effect of the particular agreement, decision or concerted practice would be the prevention, restriction or distortion of competition in trade alleged in the proceedings ("Reasonable Ignorance Defence"); or
  • at all material times a licence or certificate was in force in respect of the alleged anti-competitive arrangement, the terms of which were being complied with by the defendant at all material times, or, where the terms of the licence have been amended, the defendant was complying with the terms and conditions of the licence prior to the making of the amendments and, within 14 days after the date of publication of the amended terms, the defendant began to take all reasonable steps to comply with the amended licence ("Material Compliance Defence"); or
  • in the case of an anti-competitive arrangement for which a licence or certificate was revoked or suspended, the defendant began to take, within 14 days after the relevant revocation or suspension, all reasonable steps for the purposes of ensuring that any arrangements that had been made and which were necessary for the implementation of the anti-competitive arrangement were discontinued ("Compliance Defence").
  • it is important to note that the Material Compliance Defence and the Compliance Defence are not available if the offence concerned is alleged to have been committed more than 2 months after the date of publication of the notice of amendment or revocation as the case may be ("Two Month Rule") and the Compliance Defence will not extend to a defendant whose actions constituted the grounds for the revocation of the relevant licence or certificate.
  • the Material Compliance Defence and the Compliance Defence are available to a defendant in a prosecution for non-compliance with a Competition Authority licence subject to the application of the Two Month Rule;
  • the Reasonable Ignorance Defence and a defence that the behaviour which is challenged as being abusive of a dominant position was done in compliance with a Ministerial Order under Section 14 of the 1991 Act are both available to a defendant in a prosecution for abuse of a dominant position;
  • the Material Compliance Defence and the Compliance Defence are both available to a defendant in a prosecution for non-compliance with a Ministerial Order under Section 14 of the 1991 Act subject to the application of the Two Month Rule.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.