Competition Act, 1991

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PART II

Rules of Competition

Anti-competitive agreements, decisions and concerted practices.

4.—(1) Subject to the provisions of this section, 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 are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which—

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage;

(e) 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.

(2) The Competition Authority established by this Act (“the Authority”) may in accordance with section 8 grant a licence for the purposes of this section in the case of—

(a) any agreement or category of agreements,

(b) any decision or category of decisions,

(c) any concerted practice or category of concerted practices,

which in the opinion of the Authority, having regard to all relevant market conditions, contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and which does not—

(i) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives;

(ii) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(3) (a) A licence under subsection (2) shall, while it is in force, and in accordance with its terms, permit the doing of acts which would otherwise be prohibited and void under subsection (1).

(b) Where a licence under subsection (2) covers a category of agreements, decisions or concerted practices, any agreements, decisions or concerted practices (as the case may be) within that category which comply with the terms of the licence need not be notified under section 7 to benefit from the licence while it is in force.

(4) The Authority may certify that in its opinion, on the basis of the facts in its possession, an agreement, decision or concerted practice notified under section 7 does not offend against subsection (1).

(5) Before granting a licence or issuing a certificate under this section, the Authority may invite any Minister of the Government concerned with the matter to offer such observations as he may wish to make.

(6) On granting a licence or issuing a certificate under this section, the Authority shall forthwith give notice in the prescribed manner to every body to which it relates stating the terms and the date thereof and the reasons therefor and cause the notice to be published in Iris Oifigiúil and cause notice of the grant of the licence or issue of the certificate, as the case may be, to be published in one daily newspaper published in the State.

(7) The prohibition in subsection (1) shall not prevent the Court, in exercising any jurisdiction conferred on it by this Act concerning an agreement, decision or concerted practice which contravenes that prohibition and which creates or, but for this Act, would have created legal relations between the parties thereto, from applying, where appropriate, any relevant rules of law as to the severance of those terms of that agreement, decision or concerted practice which contravene that prohibition from those which do not.

(8) In respect of an agreement, decision or concerted practice such as is referred to in subsection (7) a court of competent jurisdiction may make such order as to recovery, restitution or otherwise between the parties to such agreement, decision or concerted practice as may in all the circumstances seem just, having regard in particular to any consideration or benefit given or received by such parties on foot thereof.