{"id":10022,"date":"2022-07-03T17:31:24","date_gmt":"2022-07-03T17:31:24","guid":{"rendered":"http:\/\/legalblog.ie\/sectoral-issues-i\/"},"modified":"2022-11-19T20:01:30","modified_gmt":"2022-11-19T20:01:30","slug":"sectoral-issues-i","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/sectoral-issues-i\/","title":{"rendered":"Sectoral Issues"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Property\" title=\"Property\">Property<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Leases_Tenant_Mix\" title=\"Leases &amp; Tenant Mix\">Leases &amp; Tenant Mix<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Shopping_Centre\" title=\"Shopping Centre\">Shopping Centre<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Facility_Infrastructure\" title=\"Facility \/ Infrastructure\">Facility \/ Infrastructure<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Financial_Services\" title=\"Financial Services.\">Financial Services.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Insurance\" title=\"Insurance\">Insurance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Shares\" title=\"Shares\">Shares<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/sectoral-issues-i\/#Professional_Licensing\" title=\"Professional Licensing\">Professional Licensing<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Property\"><\/span>Property<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>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.<\/p>\n<p>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 agreements did not prevent or restrict competition in the State or part of the State.<\/p>\n<p>Typically, it has taken the view that restrictions applied in respect of a particular property did not represent a not a significant distortion of competition because the business could be undertaken from other properties.<\/p>\n<p>This approach may be somewhat theoretical in some cases.\u00a0 There may be a limited supply of property available from a planning or physical infrastructure perspective in a given area.\u00a0 The effect of restricting a small number of properties may be to restrict trade and competition in a significant area.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Leases_Tenant_Mix\"><\/span>Leases &amp; Tenant Mix<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Landlord and Tenant legislation provides that a tenant may apply for a change of use and that the landlord may not unreasonably withhold consent.\u00a0 Clauses may provide that certain changes of use are deemed impermissible.\u00a0 In tandem, the shopping centre developer may grant exclusivity to tenants for particular uses.\u00a0 In some markets, significant sums may be paid by the purchaser for exclusivity.<\/p>\n<p>Restrictions in leases typically also restrain the tenant from assigning or transferring its lease or subletting without the landlord\\&#8217;s consent.\u00a0 In principle, a landlord could refuse consent in a manner that is restrictive of trade and business.\u00a0 This may apply even if the incoming tenant does not require a change of use.<\/p>\n<p>The issues of consent to assignment and change of use will commonly arise in tandem. The Landlord and Tenants Act provide that both in respect of change of use and assignment, the landlord may not unreasonably withhold consent. In some instances, the refusal of an application for change if use and \/or assignment may have an anticompetitive effect in that a particular assignee is kept out of a shopping centre that might otherwise provide competition or further competition.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Shopping_Centre\"><\/span>Shopping Centre<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Shopping centres typically provide a mix of tenant types and uses.\u00a0 Each lease typically has a particular permitted use.<\/p>\n<p>The Competition Authority issued a notice under the 1991 Act in respect of shopping centres.\u00a0 Its view was that the most commonly encountered clauses in leases would not generally restrict competition, provided that they related to the proper operation of the centre.<\/p>\n<p>They have generally been willing to uphold exclusive uses in respect of particular units in the interests of tenant mix. The object of a balanced range of outlets in the centre, will generally be legitimate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Facility_Infrastructure\"><\/span>Facility \/ Infrastructure<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The exclusive right to use a particular facility, of which there is restricted supply, may constitute a restriction of competition.\u00a0 It may be upheld if it is objectively justifiable.<\/p>\n<p>Where dominant undertaking control and owns a particular facility or infrastructure to which competitors need access in order to provide services, it may be prohibited from refusing access or offering access only on terms that on unfavourable terms.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Financial_Services\"><\/span>Financial Services.<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Competition law applies to the banking, insurance and other financial services sector in the normal way. The financial services sector is heavily regulated.\u00a0 Competition is not a significant feature of the regulation.<\/p>\n<p>The fixing of interest rates by competitor banks in effect, comprises price-fixing.\u00a0 Agreements on interest paid or charged are almost inevitably unlawful. \u00a0Agreements on bank charges are equally unlawful.<\/p>\n<p>The banking sector tends to have a relatively small number of market participants.\u00a0 Accordingly, arrangements and agreements between the banks are suspect and subject to scrutiny.\u00a0 They must be justified on objective grounds.\u00a0 The EU Commission has decided that agreements on opening hours will not generally breach competition law.<\/p>\n<p>Banks operate payment systems, which have significant cooperation.\u00a0 Payment systems must not incorporate arrangements and practices in breach of competition law.\u00a0 \u00a0The rules of the principal payment systems were notified to and examined by the Competition Authority under the 1991 Act.\u00a0 Certain rules were found to be anti-competitive and were required to be amended.<\/p>\n<p>Credit card payment systems involve networks of agreements between issuers, businesses and financial institutions.\u00a0 The rules of various systems were notified to the Competition Authority, and some provisions of the agreement were found invalid and required modification.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Insurance\"><\/span>Insurance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Certain practices, characteristic of the insurance sector, required modification under competition law. Tying arrangements by which customers were required to take out insurance through a particular broker have been found invalid.<\/p>\n<p>The Competition Authority has objected to the exchange of price information between insurance companies in relation to particular types of risks.\u00a0 Similarly, recommendations of insurance companies have been found to contravene EU competition law.<\/p>\n<p>Common risk premium tariffs may be permitted, subject to conditions.\u00a0 Statistical cooperation based on historical data may be permitted.<\/p>\n<p>Agreements between insurance companies and brokers in respect of commission have been required to be amended.\u00a0 Agreements between insurance companies, setting maximum commissions payable to intermediaries reached under the auspices of a trade body, were found to breach competition legislation.<\/p>\n<p>They could not be justified in terms of the corresponding benefit, which the agreement has alleged to facilitate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Shares\"><\/span>Shares<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Share subscription agreements commonly contain restrictions on the participant conducting business other than through the company concerned for a certain period.\u00a0 These are generally acceptable during the course of the operation of the company&#8217;s venture or trade.<\/p>\n<p>Similar principles apply in the course of a joint venture. Some types of restrictions arising in the course of the joint venture may be invalid.<\/p>\n<p>Restrictions after the termination of the arrangement are more likely to contravene competition legislation.\u00a0 They may be upheld only to the extent that they are objectively necessary to protect a legitimate interest.\u00a0 Restrictions applicable after termination of the conduct of trade are less likely to be valid.<\/p>\n<p>Formerly, the securities industries were largely self-regulated under private rules.\u00a0 Many such rules were found to be anticompetitive and were required to be removed after the enactment of the Competition Act.<\/p>\n<p>Certain elements of the Irish Stock Exchange rules relating to price setting and restrictions on the roles that certain parties could play were found objectionable and were required to be amended by the Competition Authority.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Professional_Licensing\"><\/span>Professional Licensing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Many professional services are regulated by statute. It is unlawful to practice a range of professions and businesses without licensing.<\/p>\n<p>The requirement for licensing in itself is not contrary to competition law. However, price fixing by professional bodies, restrictions on entry and certain other practices are likely to breach competition law.<\/p>\n<p>Recommended fees or minimum fees are likely to be invalid.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10022\" data-postid=\"10022\" class=\"themify_builder_content themify_builder_content-10022 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[159],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10022"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10022"}],"version-history":[{"count":4,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10022\/revisions"}],"predecessor-version":[{"id":20533,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10022\/revisions\/20533"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10022"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10022"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10022"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}