Competition Act, 1991
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: —This Act may be cited as the Competition Act, 1991.
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paragraphs: —(1) This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister, either generally or with reference to a particular purpose or provision, and different days may be so fixed for different purposes and different provisions of this Act.
(2) An order under subsection (1) may as respects the repeal effected by section 22 of the provisions of the Act of 1972 fix different days for the repeal of different provisions of that Act or for the repeal for different purposes of any provision of that Act.
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paragraphs: —(1) In this Act, unless the context otherwise requires—
“the Act of 1972” means the Restrictive Practices Act, 1972 ;
“the Act of 1978” means the Mergers, Take-overs and Monopolies (Control) Act, 1978 ;
“the Act of 1987” means the Restrictive Practices (Amendment) Act, 1987 ;
“authorised officer” means a person appointed under section 20 ;
“the Authority” means the Competition Authority established by section 10 ;
“the Court” means the High Court or, in the case of an appeal, the Supreme Court;
“the Minister” means the Minister for Industry and Commerce;
“prescribed” means prescribed by regulations made by the Minister;
“undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.
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paragraphs: —(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 OifigiÃºil 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.
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paragraphs: —(1) Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in a substantial part of the State is prohibited.
(2) Without prejudice to the generality of subsection (1), such abuse may, in particular, consist in—
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) 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.
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paragraphs: —(1) Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or 5 shall have a right of action for relief under this section against any undertaking which is or has at any material time been a party to such agreement, decision or concerted practice or has been guilty of such abuse.
(2) (a) Subject to paragraph (b), an action under this section shall be brought in the High Court.
(b) An action under this section may be brought in the Circuit Court in respect of any abuse which is prohibited under section 5 but any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort.
(3) The following reliefs, or any of them, may be granted to the plaintiff in an action under this section:
(a) relief by way of injunction or declaration,
(b) subject to subsection (6), damages, including exemplary damages.
(4) The Minister shall have a right of action, in respect of an agreement, decision or concerted practice or an abuse which is prohibited under section 4 or 5 , for the reliefs specified in subsection (3) (a).
(5) (a) Where in proceedings under this section it is finally decided by the Court that an agreement, decision or concerted practice which is in question infringes the prohibition in section 4 (1), any certificate in force under section 4 (4) in relation to that agreement, decision or concerted practice shall thereupon cease to have force and effect as from the date of the order of the Court and the Court shall cause a certified copy of the said order to be served on the Authority.
(b) The Authority shall, as soon as may be, cause notice of the fact that, pursuant to paragraph (a), its certificate has ceased to have force and effect to be published in Iris OifigiÃºil.
(6) Where there is or has been in force a certificate pursuant to section 4 (4) in relation to an agreement, decision or concerted practice, and that certificate has not been revoked under section 8 (6) (b), a claimant shall not be entitled to damages pursuant to this section for a contravention of the prohibition in section 4 (1) in any proceedings under this section commenced after the issue of that certificate for loss suffered in consequence of that agreement, decision or concerted practice in respect of the period during which the certificate is or has been in force, but this subsection shall not prejudice any right to damages for a contravention of the prohibition in section 5 .
(7) This section shall not apply to any agreement, decision or concerted practice to which section 7 (2) applies which has been duly notified to the Authority until the Authority has decided to grant or refuse to grant a licence under section 4 (2), or to issue a certificate or not to issue a certificate under section 4 (4), in relation thereto and any appeal to the Court under section 9 in relation to the licence or the certificate has been concluded.
(8) The Authority shall as soon as may be cause to be published in Iris OifigiÃºil any decision of the Authority referred to in subsection (7) and a copy of any such notice shall be prima facie evidence of the making and content of such decision and of the date thereof in any action under this section.
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paragraphs: —(1) Every agreement, decision and concerted practice of a kind described in section 4 (1) which comes into existence after the commencement of that section in respect of which the parties thereto request a licence under section 4 (2) or a certificate under section 4 (4) of that section shall be notified to the Authority.
(2) Every agreement, decision and concerted practice of a kind described in section 4 (1) which is in existence at the commencement of that section and in respect of which the parties seek a licence under section 4 (2) or a certificate under section 4 (4) shall be notified to the Authority within one year of such commencement.
(3) A licence under section 4 (2) or a certificate under section 4 (4) shall not be granted until the agreement, decision or concerted practice (as the case may be) has been notified to the Authority but any such licence may in the case of an agreement, decision or concerted practice to which subsection (1) applies be made retrospective to the date of notification under that subsection.
(4) A notification in accordance with this section shall be accompanied by such fee as may be prescribed.
(5) For the purpose of the exercise of its functions in relation to licences under section 4 (2) and certificates under section 4 (4) the Authority may accept such observations or submissions from persons claiming to be interested as it may think proper.
(6) The functions of the Authority under this Act shall be carried out in accordance with such procedures, if any, as may be prescribed.
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paragraphs: —(1) A licence of the Authority under section 4 (2) shall be granted for a specified period subject to such conditions as may be attached to and specified in the licence.
(2) The Authority may from time to time, on the application of a party to a request under section 7 , extend the period of a licence if it is of opinion that the requirements of section 4 (2) continue to be fulfilled and the Authority shall, as soon as may be, cause to be published in Iris OifigiÃºil notice of any such extension.
(3) Where the Authority is of the opinion that, having regard to the requirements of section 4 (2) and to the basis upon which a licence under that subsection was granted—
(a) there has been a material change in any of the circumstances on which the decision was based,
(b) any party commits a breach of any obligation attached to the decision,
(c) the licence was based on materially incorrect or misleading information, or
(d) any party abuses the permission granted to it by the licence,
the Authority may revoke or amend the licence and, without prejudice to the generality of this subsection, may in particular insert in a licence conditions the effect of which is to prohibit specific acts by any party thereto which would otherwise be authorised pursuant to such a licence.
(4) The Authority shall as soon as may be cause to be published in Iris OifigiÃºil notice of every revocation or amendment of a licence under section 4 (2).
(5) Every licence under section 4 (2) shall have effect in accordance with its terms, subject to any amendment thereof including any conditions inserted therein under subsection (3) of this section.
(6) The Authority may revoke a certificate under section 4 (4) where it is of opinion that—
(a) there has been a material change in any of the circumstances on which the certificate was based, or
(b) the certificate was based on materially incorrect or misleading information.
(7) The Authority shall as soon as may be cause to be published in Iris OifigiÃºil notice of every revocation under subsection (6).
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paragraphs: —(1) Any undertaking or association of undertakings concerned, or any other person aggrieved by a licence or a certificate of the Authority under section 4 (2) or (4), or the Minister, may appeal to the High Court within 28 days of publication pursuant to this Act of the licence or certificate and on the hearing of any such appeal the Court may confirm, amend or revoke the licence so appealed against, or, in the case of such a certificate, may cancel or refuse to cancel the certificate.
(2) The right of appeal in relation to a licence under section 4 (2) includes the right to appeal against the insertion or exclusion of conditions attaching to any exemption granted.
(3) The Court may order that a licence or certificate in respect of which an appeal has been brought under this section shall be suspended pending the hearing and conclusion of the appeal.
(4) Any undertaking or association of undertakings concerned or the Minister may within 28 days of the notification or publication pursuant to this Act of a revocation or amendment by the Authority, pursuant to section 8 (3), of a licence under section 4 (2), or of a revocation by the Authority, pursuant to section 8 (6), of a certificate under section 4 (4), appeal to the High Court.
(5) The Court may extend the time specified in subsection (1) or (4) in any case where it seems just and convenient to do so.
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paragraphs: —(1) There shall be a body to be known as the Competition Authority to exercise the functions assigned to it by this Act.
(2) The Authority shall stand established on such day as the Minister may by order appoint.
(3) The Authority shall in particular discharge any function of the Fair Trade Commission under the Act of 1972 not completed at the commencement of this section and, accordingly, sections 7 and 8 of the Act of 1978 are amended by the substitution of references to the Authority for references to the Fair Trade Commission.
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paragraphs: —The Authority may, at the request of the Minister, study and analyse and, when requested by the Minister, report to him the results of any such study or analysis, any practice or method of competition affecting the supply and distribution of goods or the provision of services. A study or analysis may consist of, or include, a study or analysis of any development outside the State.
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paragraphs: —(1) The Authority shall submit to the Minister an annual report of its activities within four months of the end of each year.
(2) The Minister shall lay before each House of the Oireachtas a copy of every such report within four months of receiving the report.
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paragraphs: —This Part shall be construed as one with the Act of 1978 and with the other Parts of this Act.
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paragraphs: —(1) Where the Minister is of the opinion that there is, contrary to section 5 , an abuse of a dominant position he may request the Authority to carry out an investigation and the Authority shall comply with the request.
(2) Where the Authority holds an investigation pursuant to a request under subsection (1) it shall report thereon to the Minister and the report shall state whether in the opinion of the Authority—
(a) a dominant position exists, and
(b) if it does, whether that dominant position is being abused.
(3) The Minister, having considered a report of the Authority under subsection (2), may, if the interests of the common good so warrant, after consultation with any other Minister of the Government concerned, by order either—
(a) prohibit the continuance of the dominant position except on conditions specified in the order, or
(b) require the adjustment of the dominant position, in a manner and within a period specified in the order, by a sale of assets or otherwise as he may specify.
(4) An order under this section shall state the reasons for making the order.
(5) The Minister may by order revoke an order under this section and may, with the agreement of every enterprise concerned, amend an order under this section.
(6) An order under this section shall not have effect unless and until it is confirmed by a resolution of each House of the Oireachtas.
(7) References in sections 12 and 13 of the Act of 1978 to section 11 of that Act shall be construed as references to this section and the expression “monopoly” shall be construed as a reference to an abuse of a dominant position.
(8) Compliance with an order under this section shall be a good defence to an action under section 6 in respect of any period after such compliance, in so far as such action is in respect of any matter which is the subject of such compliance.
(9) A right of action for relief under section 6 includes a right of action for contravention of an order under this section.
(10) The Minister shall publish a report under subsection (2), with due regard to commercial confidentiality, within two months of its being furnished to him by the Authority.
(11) Sections 10 and 11 of the Act of 1978 are hereby repealed.
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paragraphs: —(1) “Service” in section 1 (1) of the Act of 1978 shall not include the owning and transfer of land where this activity is the sole activity of the enterprise in which control is being sought.
(2) Section 1 (3) of the Act of 1978 is hereby amended by the substitution for paragraph (c) of the following:
“(c) Without prejudice to paragraph (b), where an enterprise (in this paragraph referred to as 'the first enterprise'), whether by means of acquisition or otherwise, obtains the right in another enterprise (in this paragraph referred to as 'the second enterprise') which is a body corporate—
(i) to appoint or remove a majority of the board or committee of management of the second enterprise, or
(ii) to shares of the second enterprise which carry voting rights, except where the voting rights in the second enterprise which are controlled by the first enterprise—
(I) are not after the acquisition more than 25 per cent of the total of such voting rights, or
(II) are before the acquisition more than one half of the total of such voting rights,
the said enterprises shall be deemed to have been brought under common control.”.
(3) Section 1 (3) (e) of the Act of 1978 is hereby amended by the insertion after “acquisition” at the end of the paragraph of “and the value of those assets or the value of the turnover generated therefrom, exceeds the thresholds referred to in section 2 (1) (a).”.
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paragraphs: —The Act of 1978 is hereby amended by the substitution, for section 5, of the following section:
“5.—(1) Each of the enterprises involved in a proposed merger or take-over shall notify the Minister in writing of the proposal, and provide full details thereof within the specified period of the offer capable of acceptance having been made, the effect of which would bring the enterprises under common control.
(2) Where, having received a notification under this section from each of the enterprises involved, the Minister is of opinion that in order to consider for the purposes of this Act a proposed merger or take-over he requires further information he may, within one month of the date of receipt by him of the notification, or of the last of such notifications, as the case may be, request such further information in writing from any one or more of the enterprises concerned, each of which shall provide the information within a period to be stated to them by the Minister in writing.
(3) (a) Where there is a contravention of subsection (1) or (2) the person in control of an enterprise failing to notify the Minister within the specified period or failing to supply the information requested within the period stated by the Minister shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a fine not exceeding £1,000 and, for continued contravention, to a daily default fine not exceeding £100, or
(ii) on conviction on indictment, to a fine not exceeding £200,000 and, for continued contravention, to a daily default fine not exceeding £20,000.
(b) Where a person is liable to a daily default fine he shall be guilty of contravening the provision on every day on which the contravention continues after the specified period has elapsed.
(c) For the purposes of this subsection the person in control of an enterprise is—
(i) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,
(ii) in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention,
(iii) in the case of any other form of enterprise, any individual in control of that enterprise who knowingly and wilfully authorises or permits the contravention.
(4) For the purposes of this section the specified period shall be one month, or such other period as the Minister may specify.
(5) A notification for the purposes of subsection (1) shall not be valid where any information provided or statement made under subsection (1) or (2) is false or misleading.”.
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paragraphs: —(1) Section 6 of the Act of 1978 is hereby amended by the insertion after “section 3” of “or section 7”.
(2) The Act of 1978 is hereby amended by the substitution of the following for section 7:
“7.—Upon receipt of a notification under section 5 the Minister shall—
(a) as soon as practicable inform the enterprises which made the notification and any other enterprise involved which enquires of him that he has decided not to make an order under section 9 in relation to the proposed merger or take-over, or
(b) within 30 days of the commencement of the relevant period refer the notification to the Authority for investigation.”.
(3) Section 8 (1) of the Act of 1978 is hereby amended by the insertion after the word “date” of “not being less than 30 days after the reference”.
(4) Section 8 of the Act of 1978 is hereby amended by the substitution for subsection (2) of the following:
“(2) (a) A report of the Authority under subsection (1) shall state its opinion as to whether or not the proposed merger or take-over concerned would be likely to prevent or restrict competition or restrain trade in any goods or services and would be likely to operate against the common good.
(b) The Authority shall give its views on the likely effect of the proposed merger or take-over on the common good in respect of:
(i) continuity of supplies or services,
(ii) level of employment,
(iii) regional development,
(iv) rationalisation of operations in the interests of greater efficiency,
(v) research and development,
(vi) increased production,
(vii) access to markets,
(viii) shareholders and partners,
(ix) employees,
(x) consumers.”.
(5) The Minister shall publish any such report, with due regard to commercial confidentiality, within two months of its being furnished to him by the Authority.
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paragraphs: —Section 9 (1) (a) of the Act of 1978 is hereby amended by the insertion after “so warrant”, of the following, “which shall include, but is not confined to, the criteria in section 8,”.
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paragraphs: —(1) The transmission to the Minister by the Commission of the European Communities of a copy of a notification made under Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings shall constitute a notification under section 5 of the Act of 1978 (as inserted by section 16 of this Act).
(2) The relevant period in respect of such a notification shall not commence until the Commission of the European Communities makes a decision under either Article 9 or 21 (3) of that Regulation.
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paragraphs: —The Minister and the Authority with the consent of the Minister may appoint persons to be authorised officers for the purposes of this Act.
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paragraphs: —(1) For the purpose of obtaining any information necessary for the exercise by the Authority or the Minister of any of their functions under this Act, an authorised officer may, on production of a warrant issued by a Justice of the District Court expressly authorising him to do so—
(a) enter and inspect premises at or vehicles in or by means of which any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business, is carried on,
(b) require the person who carries on such activity and any person employed in connection therewith to produce to the authorised officer any books, documents or records relating to such activity which are in that person's power or control, and to give to the authorised officer such information as he may reasonably require in regard to any entries in such books, documents and records,
(c) inspect and copy or take extracts from any such books, documents and records,
(d) require a person mentioned in paragraph (b) to give to the authorised officer any information he may require in regard to the persons carrying on such activity (including in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and its committee of management or other controlling authority) or employed in connection therewith,
(e) require a person mentioned in paragraph (b) to give to the authorised officer any information which the officer may reasonably require in regard to such activity.
(2) A Justice of the District Court may issue a warrant under subsection (1), if satisfied by information on oath that it is proper for him to do so for the purposes of that subsection.
(3) A person who obstructs or impedes an authorised officer in the exercise of a power conferred by this section or does not comply with a requirement under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a period not exceeding twelve months or, at the discretion of the Court, to both such fine and imprisonment.
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paragraphs: —The provisions of the Act of 1972 and every order made under that Act and sections 5 and 6 and sections 8 to 23 of the Act of 1987 are hereby repealed.
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paragraphs: —(1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.
(2) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
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paragraphs: —Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.