Private Enforcement

Private Action

The Competition Act 1991 (re-enacted in 2002) provides for a private right of action for breach of competition law,  Private actions have not been commonly taken under the legislation to date. The Competition (Amendment) Act, 2012, provides for private enforcement for breach of both the domestic and EU prohibitions on anti-competitive behaviour.

The domestic system of competition law does not provide for administrative sanctions.  This is in contrast to the EU system, under which very considerable administrative fines may be imposed.

The right of action accrues to the aggrieved person.  This is likely to extend to any natural person or company which suffers economic loss as a consequence of the breach of competition law. An action for damages may also seek relief by way of injunction and declaration.  Exemplary or punitive damages may be awarded.

Public Civil Enforfcment

Public civil enforcement provisions are provided under the 2012 Act.  The Competition Authority or ComReg may bring civil actions in the Circuit Court or the High Court by way of injunction or declaration.  The court may require the undertaking to discontinue the behaviour and/or to take such measures for cessation of the action or abuse.

US Background

The provision of a right of damages for a breach of both domestic and EU competition law follows U.S. practice. U.S. competition law has long provided for private enforcement of competition law (so-called antitrust litigation).

Parties who are adversely affected by anticompetitive practices have a direct right of action against those who are engaged in the practices.  In some cases, they may be awarded penal damages.

Suffering Loss

The classes of persons who may suffer loss and damage as a consequence of anti-competitive agreements, restrictive practices and abuses of dominant position are potentially very wide.  They may be, for example, persons who are directly affected by being kept or forced out of business and who have suffered very direct financial loss as a result of predatory pricing.

There may be further layers of persons in the industry and, ultimately, a large body of consumers who suffer loss as a result of competition law infringement.  The effect of anticompetitive behaviour is likely to radiate through the entire distribution chain.

The position is complicated further when the goods, the subject of the anti-competitive behaviour, are incorporated into other goods so that the effect becomes more diluted and diffused.

Overcharging resulting from price fixing may be passed down the chain of distribution.  This may have the effect of mitigating the loss of the party who is directly affected by the anticompetitive behaviour reducing the damages that it might otherwise claim.

Basis of Damages

Conventionally, damages lie for loss caused to the claimant in consequence of the relevant breach.  Accordingly, a claimant may not claim for loss and damage incurred by third parties.

The traditional basis of damage may give insufficient incentive to a claimant to initiate a claim for damages under competition law.  Alternative bases of damages may be claimed. The principal basis of the claim is that loss has been directly incurred by the claimant because of the breach.

An alternative basis may be based on the unjust enrichment of the defendant.  However, it is unlikely that a claimant could recoup more than unjust enrichment related to his particular claim.

The European Court of Justice has held that claimants who have suffered loss by reason of EU competition law infringements are entitled to full compensation for the harm caused.  This means compensation for actual harm, loss of profit, plus interest from the time when the damage occurred until the sum is awarded.

Wider Measure of Loss

They may be entitled to exemplary or punitive damages to the extent that it is allowable under the particular national law. In the absence of EU law on the matter, states may limit the right to claim damages to loss caused by the infringement.

It is widely believed that a wide-ranging restitutionary or disgorgement of the unlawful gain basis of the claim is necessary in order to make civil competition law claims viable.  It has been proposed that mechanisms be put in place to manage the distribution of damages recovered on a restitutionary basis.

The Court of Appeal in England and Wales has held that it could not make a restitutionary award in a non-proprietary case where the gain was not based on the appropriation of some proprietary right of the claimant.  The court concluded that restitutionary damages were not available in a case based on infringement on competition law.

In an early Irish case, compensation was awarded against the ESB for breach of a dominant position.  This arose from changes in the conditions of supply of the ESB to the detriment of certain electrical contractors.  The Supreme Court approved an award of damages for loss suffered by reason of the abuse of a dominant position.

Defendants in Claim

Action may be taken against an undertaking which has been party to the agreement, decision, arrangement, concerted practice or abuse of a dominant position in question.  It may also be taken against a director, manager or other officers of such undertaking or a person who purported to act in such capacity, who authorised or consented to entry by the undertaking into or the implementation by it of the agreement, decision, concerted practice or abuse.

The Competition Authority itself has a right of action in relation to agreement decisions, concerted practices or abuses or either domestic or EU competition law. The Authority may apply for an injunction or declaration.

Civil action may be taken whether or not there has been a prosecution for an offence under the Competition Act.  The bringing of a civil action is not prejudiced by the bringing of a criminal action. The claim may be brought in the Circuit Court or in the High Court.  The general Circuit Court’s upper limit to jurisdiction applies [€70,000].  There is no limit on the amount of damages that may be awarded in the High Court.

Remedies in Action

The action may seek an injunction, declaration or damages, including exemplary damages.  The court may make such order as to the recovery, restitution or otherwise against the parties to an agreement, decision or concerted practice, as is just in the circumstances. This may be done in any proceedings in which the issue arises.

There is a defence to the claim if it can be shown that one of the exceptions to the general prohibition applies.  For example, what is apparently anti-competitive behaviour may be justified under one of the “rule of reason” type defences.

It is a defence to the civil claim that the relevant act is done under the direction or order of certain statutory regulators. The regulators are the  Commission for Aviation Regulation, the Commission for Communications Regulation, the Commission for Energy Regulation and the Broadcasting Commission of Ireland.

Agreement Void

An agreement or arrangement may be wholly or partially void under competition law.  The Competition Act provides that the common law power to sever the lawful from the unlawful elements of a contract applies in relation to competition law.

Accordingly, the presence of an anti-competitive provision in an agreement will not necessarily invalidate and render the entire contract void.  These parts of the contract which do not breach competition law may stand as lawful.

It is presumed in the case of an act done by an undertaking (such as a company) until the contrary is proved that each director of the undertaking and persons employed by it, whose duties include the decision-making that to a significant extent could have affected the management of the undertaking or of any other persons who purported to act in such capacity, the material time, consented to the doing of the act.

In an action either by a private party or the competition authority where it is determined that there has been an abuse of a dominant position, the court may either at its own motion, or an application by the authority by order require the dominant position to the discontinued unless conditions specified in the order are complied with or acquired the adjustment of the dominant position in a manner within a period specified in the order by a sale of assets or otherwise as may be specified.

Appeal v Declarations

An appeal may be taken by undertaking or an association of undertakings against the making of the Competition Authority declaration.  This allows trade bodies to appeal against a Competition Authority declaration in relation to a matter of concern to participants in the relevant industry.

The appeal is taken to the High court.  It must be taken within 28 days of the publication of the relevant notice. The High Court may confirm, amend or annul the declaration.  It may make an order pending the hearing and the determination of the appeal.

Expert Evidence

In competition law cases, expert evidence will be of critical importance.  Economists and experts in markets and particular markets will typically give expert evidence regarding the relevant economic issues.  The Competition Act itself provides that the opinion of any witness who appears to the court to possess the appropriate qualification and experience may be admissible as regards any matter calling for expertise or special knowledge relevant to the proceeding.

In particular, expert evidence may be given in relation to the effects which types of agreements, decisions, or concerted practices may have or which specific agreements, decisions or concerted practices have in competition and trade.  Expert economic evidence may be given by way of explanation to the court of any relevant economic principles or the application of such principles or such other explanation would be of assistance to the judge or if applicable, to the jury.