Competition (Amendment) Act 2017 A ‘false self-employed worker’ means an individual who— performs for a person (‘other person’), under a contract (whether express or implied and if express, whether orally or in writing), the same activity or service as an employee of the other person, has a relationship of subordination in relation to the other person for the duration of the contractual relationship, is required […]
Employment & Competition Employment contracts are subject to the restraint of trade doctrine and to the Competition Act, in relation to anti-competitive restrictions. The restraint of trade doctrine is a long standing common law principle. The Competition Act focuses primarily, on agreements or arrangements between undertakings or businesses. However, it may impact on employment agreement in some limited circumstances. Employees as such are not undertakings […]
Restraint of Trade Doctrine The common law renders void, a contract which provides for an unreasonable restraint of trade. Restraint of trade refers to a purported contractual provision, which restricts a person’s ability to carry out his trade, profession or business with others. The restriction my restrict a person from setting up business in a particular field, within a certain geographical area for a period. […]
Adjudication Officers The competent authority is to nominate adjudication officers to be appointed by the relevant Minister, in order to make decisions and otherwise to exercise functions under the Act. The Minister may make regulations concerning the creation of a panel of adjudication officers, the necessary requirements and qualifications, and the appointment of Chief Adjudication Officers. The Minister is required to appoint persons nominated by […]
Investigations Authorised officers may carry out investigations for suspected infringements, but must do so if directed by a competent authority. On the completion of an investigation, the authorised officer is required to submit a report to the competent authority, which the provision states must contain the following: The name of the undertaking or association of undertakings concerned; The investigative steps taken by the competent authority; […]
Structural or behavioural remedies A decision of an adjudication officer may impose a structural or behavioural remedy. A structure or behavioural remedy (remedy) is “any remedy or obligation requiring an undertaking or association of undertakings to take, or to refrain from taking, any action relating to the behaviour or structure of an undertaking or association of undertakings”. This includes requiring the undertaking / association or […]
CCPC 2014 The Competition and Consumer Protection Act 2014 provides for the establishment of the Competition and Consumer Protection Commission,the dissolution of the Competition Authority and the National Consumer Agency.The Competition is to be independent in the performance of certain functions on establishment (e.g. enforcement). The Act consolidates into the CCPC, the functions that had applied to the Competition uthority and the National Consumer Agency […]
2014 Act The 2014 Act amends the provisions dealing with mergers and acquisitions including an extension of the definition of individuals, an amendment to provide that goodwill is included in the meaning of the term ‘‘asset’’ for the purposes of the Part and amendment to the situations where a merger or acquisition is not deemed to have occurred. There are special provisions which deal with […]
The 2014 Act amends Part 3 of the Consumer Protection Act 2007 by inserting a new Part on Grocery Goods Undertakings. The Minister for Jobs, Enterprise and Innovation may make regulations in respect of certain aspects of the commercial relationships between relevant grocery goods undertakings and specifies those matters on which the Minister may make such regulations (including the form of contract to be entered […]
Guidelines on the assessment of horizontal mergers under the EU regulation on the control of concentrations between undertakings They provide guidance as to the European Commission’s approach when assessing the likely impact of mergers, within the scope of Article 2 of Regulation (EC) No 139/2004 (the Merger Regulation), where the firms concerned are actual or potential competitors in the same relevant market (horizontal mergers). Through […]
Control of concentrations between companies Regulation (EC) No 139/2004 — the control of concentrations between undertakings (the Merger Regulation) It lays down EU rules with regard to concentrations where two or more firms combine by means of a merger or acquisition. It means that one intra-EU merger need not be notified to several competition authorities in the EU; it is based on the principle of […]
Guidelines on the application of Article 101(3) TFEU (formerly Article 81(3) TEC) The Commission sets out the criteria for assessment under Article 101(3) of the Treaty on the Functioning of the European Union (TFEU) (ex-Article 81(3) of the Treaty Establishing the European Community (TEC)) with a view to exempting agreements between undertakings, decisions by associations of undertakings and concerted practices, which are prohibited under Article […]
Guidelines on horizontal cooperation agreements Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements These guidelines are designed to help companies determine on a case-by-case basis whether their cooperation agreements are compatible with the competition rules by providing a framework for assessment under Articles 101 (1) and (3) of the Treaty on the […]
EU rules on concerted practices and agreements between companies Regulation No 19/65/EEC on application of EU treaties to certain types of agreements and concerted practices between companies Article 101 of the Treaty on the Functioning of the European Union (TFEU) – competition rules applying to companies Article 101 (2) states that all agreements that fall within the scope of Article 101(1) are void unless they […]
Compensation The European Union (EU) has adopted rules allowing companies to receive full compensation for actual losses and lost profits that they suffer as a result of a cartel in their sector. Although Articles 101 and 102 of the Treaty on the Functioning of the European Union guarantee the right to full compensation, until now, its practical exercise has been difficult. The European Union (EU) […]
Notice on the conduct of settlement procedures It sets out the procedures and criteria for rewarding companies — through lower penalties — which admit to the European Commission that they have participated in an illegal cartel. It provides guidance for the legal and business communities. The anti-competitive behaviour prevents the single market from operating smoothly and is illegal under Article 101 of the Treaty on […]
National Authorities Directive (EU) 2019/1 empowering EU countries’ competition authorities to be more effective enforcers and to ensure the proper functioning of the EU’s internal market, The legislation: guarantees EU countries’ national competition authorities the necessary independence, resources and enforcement and fining powers that are necessary to tackle effectively agreements and practices by companies that restrict competition within their jurisdiction; applies specifically to when anti-competitive […]
Implementing EU competition rules The notice explains how the Commission applies: Regulation (EC) No 1/2003 (see summary); Regulation (EC) No 773/2004 (see summary). Annex 1 of the notice summarises the essence of the notice in the form of a flowchart. Procedure Investigative phase Cases of alleged anti-competitive behaviour may be: based on complaints from companies, natural and legal persons or EU governments; opened by the […]
Exemption for vertical supply and distribution agreements Regulation (EU) No 330/2010 — application of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices gives a block exemption from Article 101(1) TFEU to vertical agreements* which fulfil certain requirements. These agreements may, for instance, help a manufacturer to enter a new market, or avoid the situation whereby one distributor […]
De minimis notice: Exemption for agreements of minor importance Notice on agreements of minor importance which do not appreciably restrict competition (De Minimis Notice) Article 101(1) Treaty on the Functioning of the European Union prohibits agreements between businesses that are liable to prevent, affect or distort competition within the EU. The Court of Justice of the EU (CJEU) has consistently recognised that this article does […]
Notification The Minister for Communication, Energy and Natural Resources is to be notified in writing of a proposal to put a media merger or acquisition into effect. Notifying parties must furnish full information in relation to the media merger, including, in particular, matters that might impair the plurality of the media in the State. The Commission must notify the Minister of its determination on the […]
Regulatory Powers There is provision in relation to the regulation of practices and agreements in the grocery goods sector. The Minister for Jobs, Enterprise and Innovation may make regulations in relation to certain aspects of the commercial relationships between grocery goods undertakings, having regard to certain specified considerations. The Minister may issue guidelines on the regulations. The regulations may deal with the form of contract […]
Agreements and Practices Both EU and Irish legislation prohibits agreements, concerted practices and decisions by businesses or businesses association which have as their the object or effect the prevention, restriction or distortion of competition. The prohibition covers formal and informal agreements, arrangements and tacit understandings between businesses not to compete or to limit competition. EU law applies to the restriction or distortion of competition between […]
Prohibition The terms of the prohibition on anti-competitive behaviour are set out in the general note on competition law. In broad terms, an anti-competitive arrangement, which is not otherwise justifiable on objective grounds, is prohibited. The key provisions of the legislation are in quite general terms, so it may be difficult to apply to a particular set of circumstances. Breach of the provision may lead […]
Enforcement Mechanism There are a number of distinct methods by which competition law is enforced. Agreements in breach of competition law are void and have no effect. Third parties who suffer loss by reason of anti-competitive behaviour, they may take a civil claim for damages. Damages in a competition law case may be exemplary or punitive damages. This gives the incentive to take action. The […]
Undertakings Covered Undertakings for the purpose of competition and merger law, cover bodies which are not necessarily profit-making. Provided they operate for gain, they constitute undertakings for the purpose of the legislation. Many bodies in the public sector will be undertakings. Certain activities which appear to have minimal commercial aspects may be deemed to be undertakings. Public bodies which are engaged in regulatory and administrative […]
Bid Rigging Arrangements to rig bids in public procurement competitions are regarded as serious breaches of competition law. The rigging may take different forms. It may involve a chosen winning tender in advance, with other members submitting false bids. Different tenders may attempt to “win” bids in succession. The bid rigging might, in effect, constitute price-fixing and division of the market on an allocated basis. […]
Commercial Agency The EU Directive on commercial agency provides for the terms on which restrictions may be imposed on commercial agents following the termination of the agency. Non-compete clauses are valid only to the extent that it is concluded in writing and relates to a geographical area or group of customers and geographical area entrusted to the commercial agents and the type of goods covered […]
Market Analysis The first step is to identify whether the market is such that it is conducive to collusion and coordination. Where products are homogenous, and there is a lesser degree of transparency in market conditions, coordination is more likely. The ease of maintaining collusion is considered. An inherent pressure on collusive cartel behaviour is the risk of one party breaking from the arrangement and […]
Market Sharing Cartels and market-sharing arrangements constitute one of the most serious breaches of competition law. Cartels may involve blatant and explicit conspiracies to set prices or share markets. More commonly, cartels operate informally, and of their nature, they are undocumented. They may be difficult to prove. Cartels typically operate in markets with relatively few participants. There may be a duopoly or oligopoly. However, cartels […]
Price Fixing Agreements Arrangements and agreements, which have as their object, the fixing and setting of prices, either directly or indirectly, are prohibited by competition law. They are rarely, if ever, capable of being justified. Generally, price-fixing constitutes a serious breach of competition law. It is contrary to the very basic principle that prices should be set by competition. However, the application of uniform prices […]
Property The Competition Authority has been reluctant to apply competition law to restrictions on the use of the property. However, it is clear that competition law is potentially applicable to restrictions on the use of land. Restrictions are commonly imposed in shopping centre leases on the use of units. In many of its notifications under the Competition Act 1991, the Competition Authority concluded that the […]
Merger Review The Competition Act provides that the Competition Authority is to review notifiable mergers and acquisitions from the perspective of whether there is a substantial lessening of competition. It has published Merger Guidelines as to how it applies the test. The Merger Guidelines apply to all mergers, whether subject to notification by law or referred voluntarily. The primary focus is the welfare of consumers. […]
Authorised Officers Authorised officers are appointed by the Commission. They have the powers and functions under the Competition Acts and Consumer Protection Acts. It is an offence to obstruct or impede an authorised officer in the course of the performance of his duties. Failure to comply with a request without reasonable cause or supplying false or misleading information is an offence. The Commission may seek […]
Overview Intellectual property law may grant monopolies for the use of processes and technologies. Patents allow the inventor exclusivity in respect of the invention for a period, generally up to 20 years. Patent holders may license others to use the patent. Patent legislation provides for mandatory licensing in some limited cases. A patent licence agreement may contain conditions that infringe competition law. Copyright and trademark […]
Enforcement System The European system of enforcement of competition law is provided by EU Regulations. The Commission’s Competition Directorate is central to enforcement. It has significant powers and may impose very significant administrative fines. Enforcement will generally arise from an investigation, arising on foot of a complaint or by the authority acting its own initiative. The 2003 Regulation represented a significant modernisation of the competition […]
Establishment The Competition and Consumer Protection Act established the Competition and Consumer Protection Commission. It took over the functions of the Competition Authority and the National Consumer Agency. The Commission is independent in the performance of its function. The functions of the Competition Authority and the National Consumer Agency are consolidated into the new body. Its functions include the promotion of competition; the promotion and […]