Ireland: Competition Litigation 2020

1 General

1.1 Please identify the scope of claims that may be brought in your jurisdiction for breach of competition law.

The Competition Act 2002 as amended (the "Competition Act") contains two main prohibitions:

• Prohibition on anti-competitive arrangements between undertakings: Section 4(1) of the Competition Act prohibits and renders void 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, including those which:
• • fix prices;
  • limit or control production or markets;
  • share markets or sources of supply;
  • apply dissimilar conditions to equivalent transactions with other trading parties; and
  • 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 (e.g. tying).
• Prohibition on abuse of dominance: Section 5 of the Competition Act prohibits the abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or any part of the State. Such abuse may, in particular, consist of:
• • directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
  • limiting production, markets or technical development to the prejudice of consumers;
  • applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; and
  • 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.

These prohibitions are broadly similar to, and are modelled on, the prohibitions contained in Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU").

As regards civil proceedings, sections 14(1) and 14A(1) of the Competition Act provide that aggrieved persons and the Competition and Consumer Protection Commission (the "CCPC") (or the Commission for Communications Regulation, hereafter "ComReg") respectively have a right of action against:

• any undertaking which is/was a party to behaviour prohibited by sections 4 or 5 of the Competition Act or Article 101 or 102 TFEU; and
• any director, manager or other officer of any such undertaking, or any person who purported to act in such capacity, who authorised or consented to such behaviour.

  The range of remedies available is set out in Section 14 of the Competition Act and includes:

• declarations;
• injunctions;
• damages (for aggrieved persons but not for the CCPC/ComReg);
• orders requiring a dominant position to be discontinued; and
• orders requiring the undertaking to adopt such measures for the purpose of it ceasing to be in a dominant position or securing an adjustment of that position including the sale of assets.

As regards criminal proceedings, sections 6 and 7 of the Competition Act make it an offence to breach sections 4 or 5 of the Competition Act or Articles 101 or 102 TFEU. The CCPC investigates alleged breaches of the Competition Act and can either itself bring a summary prosecution before the District Court or, in more serious cases, refer a case to the Director of Public Prosecutions ("DPP") for prosecution on indictment. Section 8 of the Competition Act sets out the penalties for those found guilty of offences under sections 6 or 7 of the Competition Act.

The responses below are limited to a consideration of civil aspects of competition litigation.

1.2 What is the legal basis for bringing an action for breach of competition law?

Sections 14 and 14A of the Competition Act. Follow-on actions for damages are also governed by the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017 (the "Damages Regulations"), which transpose Directive 2014/104/EU on Antitrust Damages Actions into Irish national law. However, the Damages Regulations do not apply to infringements of competition law that occurred before 27 December 2016.

1.3 Is the legal basis for competition law claims derived from international, national or regional law?M

National law: sections 14 and 14A of the Competition Act allow for the bringing of claims for breaches of sections 4 or 5 of the Competition Act and/or breaches of Articles 101 or 102 TFEU.

Originally published by International Comparative Legal Guide.

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This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.