Ireland: Competition Litigation 2019

Last Updated: 25 September 2018
Article by Richard Ryan and Patrick Horan
Most Read Contributor in Ireland, October 2018

1 General

1.1 Please identify the scope of claims that may be brought in your jurisdiction for breach of competition law.

The Competition Act 2002 as amended (the "Competition Act") contains two main prohibitions:

  • Prohibition on anti-competitive arrangements between undertakings: Section 4(1) of the Competition Act prohibits and renders void 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, including those which:

    • fix prices;
    • limit or control production or markets;
    • share markets or sources of supply;
    • apply dissimilar conditions to equivalent transactions with other trading parties; and
    • 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 (e.g. tying).
  • Prohibition on abuse of dominance: Section 5 of the Competition Act prohibits the abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or any part of the State. Such abuse may, in particular, consist in:

    • directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
    • limiting production, markets or technical development to the prejudice of consumers;
    • applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; and
    • 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.

These prohibitions are broadly similar to, and are modelled on, the prohibitions contained in Articles 101 and 102 of the Treaty on the Functioning of the European Union ("TFEU").

As regards civil proceedings, sections 14(1) and 14A(1) of the Competition Act provide that aggrieved persons and the Competition and Consumer Protection Commission (the "CCPC") (or the Commission for Communications Regulation, hereafter "ComReg") respectively have a right of action against:

  • any undertaking which is/was a party to behaviour prohibited by sections 4 or 5 of the Competition Act or Article 101 or 102 TFEU; and
  • any director, manager or other officer of any such undertaking, or any person who purported to act in such capacity, who authorised or consented to such behaviour.

The range of remedies available is set out in Section 14 of the Competition Act and includes:

  • declarations;
  • injunctions;
  • damages (for aggrieved persons but not for the CCPC/ ComReg);
  • orders requiring a dominant position to be discontinued; and
  • orders requiring the undertaking to adopt such measures for the purpose of it ceasing to be in a dominant position or securing an adjustment of that position including the sale of assets.

As regards criminal proceedings, sections 6 and 7 of the Competition Act make it an offence to breach section 4 or 5 of the Competition Act or Article 101 or 102 TFEU. The CCPC investigates alleged breaches of the Competition Act and can either itself bring a summary prosecution before the District Court or, in more serious cases, refer a case to the Director of Public Prosecutions ("DPP") for prosecution on indictment. Section 8 of the Competition Act sets out the penalties for those found guilty of offences under sections 6 or 7 of the Competition Act.

The responses below are limited to a consideration of civil aspects of competition litigation.

1.2 What is the legal basis for bringing an action for breach of competition law?

Sections 14 and 14A of the Competition Act. Follow-on actions for damages are also governed by the European Union (Actions for Damages for Infringements of Competition Law) Regulations 2017 (the "Damages Regulations"), which transpose Directive 2014/104/EU on Antitrust Damages Actions into Irish national law. However, the Damages Regulations do not apply to infringements of competition law that occurred before 27 December 2016.

1.3 Is the legal basis for competition law claims derived from international, national or regional law?

National law: sections 14 and 14A of the Competition Act allow for the bringing of claims for breaches of sections 4 or 5 of the Competition Act and/or breaches of Articles 101 or 102 TFEU.

1.4 Are there specialist courts in your jurisdiction to which competition law cases are assigned?

There is no specialist competition court in Ireland. Civil competition cases are heard before the Circuit Court or the High Court. In general, the Circuit Court has jurisdiction to hear claims having a monetary value not exceeding €75,000. The High Court has original jurisdiction to hear virtually all matters irrespective of amount. However, a statutory instrument, Statutory Instrument 130/2005 The Rules of the Superior Courts (Competition Proceedings) 2005 ("SI 130/2005"), has amended the Rules of the Superior Courts by introducing a High Court Competition List and providing for procedures that apply to the Competition List. As a result, a Judge of the High Court is designated to hear competition law cases and there are specific procedural rules which apply to cases entered into the High Court Competition List.

Proceedings that may be entered into the Competition List include:

  1. proceedings in exercise of a right of action conferred by the Competition Act on a person aggrieved in consequence of any behaviour prohibited by sections 4 or 5 of the Competition Act;
  2. proceedings in exercise of a right of action conferred by the Competition Act on the CCPC/ComReg in respect of any behaviour prohibited by sections 4 or 5 of the Competition Act or by Articles 101 or 102 TFEU;
  3. an appeal against the making of a declaration by the CCPC under section 4(3) of the Competition Act (such declarations are similar to European Commission block exemption regulations);
  4. an appeal against any determination of the CCPC under Irish merger control rules to either block a transaction or clear it subject to conditions (other than in the case of media mergers);
  5. proceedings for judicial review of a decision of the CCPC;
  6. proceedings for an injunction to enforce compliance with the terms of a commitment or determination, or of an order made by the Minister for Jobs, Enterprise & Innovation under section 23(4) of the Competition Act (relating to media mergers);
  7. proceedings seeking the application of Articles 101 or 102 TFEU;
  8. proceedings for relief at common law in respect of a condition or covenant in any agreement alleged to be unreasonably in restraint of trade; and
  9. any other proceedings which concern the application of a provision of the Competition Act, of Regulation (EC) 1/2003 or of Articles 101, 102, 106, 107 or 108 TFEU.

The procedural rules for the Competition List are intended to expedite competition proceedings and provide for enhanced case management. Matters covered by those procedural rules include:

  • pre-trial procedures, including directions hearings, motions and applications, interrogatories and case management;
  • the use of pre-trial conferences and questionnaires;
  • court books;
  • the electronic filing and serving of documents;
  • exchange of documents and evidence; and
  • the appointment of experts to assist the court, particularly in relation to economic matters.

Competition issues may also be raised in cases not entered in the Competition List. In Ski Apparel v Revolution Workwear et al. [2013] IEHC 289, for instance, which concerned a dispute involving an Irish distributor of Ski Apparel's products (clothing) and in which it was argued that a non-compete was anti-competitive, Judge Laffoy said "application of competition law, both at European and at national level, is a specialised discipline and, understandably, there is a special Competition Case List in the High Court. Notwithstanding that, competition law issues find their way into cases listed elsewhere in the High Court".

1.5 Who has standing to bring an action for breach of competition law and what are the available mechanisms for multiple claimants? For instance, is there a possibility of collective claims, class actions, actions by representative bodies or any other form of public interest litigation? If collective claims or class actions are permitted, are these permitted on an "opt- in" or "opt-out" basis?

Section 14(1) of the Competition Act provides that "any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or 5, or by Article 101 or 102 of the Treaty on the Functioning of the European Union, shall have a right of action under this subsection for relief". "Aggrieved persons" include natural and legal persons. Section 14A(1) of the Competition Act provides a right of action to the CCPC (or ComReg) in respect of behaviour prohibited by sections 4 or 5 of the Competition Act or by Articles 101 or 102 TFEU.

Follow-on actions are facilitated by the Damages Regulations. Regulation 8 provides that an infringement of competition law found by a final decision of a national competition authority or a review court is deemed to be irrefutably established for the purposes of an action for damages, while the final decision of a competition authority in another Member State may be presented as at least prima facie evidence that an infringement has occurred.

Prior to the transposition of Directive 2014/104/EU on Antitrust Damages Actions, a provision in the Competition (Amendment) Act 2012 already provided that a finding by an Irish court of a breach of sections 4 or 5 of the Competition Act, or Articles 101 or 102 TFEU, will be regarded as res judicata (i.e. already adjudicated and unnecessary to be considered again) in any subsequent civil proceedings. Accordingly, a plaintiff in a follow-on action does not have to prove the infringement of competition law occurred and only has to prove causation, loss and the quantum of damages that they are entitled to if successful.

There is currently no procedure in Ireland for the taking of class actions seeking damages, as evidenced by the large volume of individual cases taken in the Irish courts on foot of the European Commission's decision in the Trucks cartel. In practice, parties involved in related actions may agree to one action proceeding as a "pathfinder case" and the other parties (including defendants) may agree to be bound by the outcome of the "pathfinder case", although there is no obligation on the parties to take such an approach. There have been calls for reform to facilitate the taking of collective/ related actions in Ireland, including in a report by the Law Reform Commission published in 2005. However, there are no imminent proposals to introduce such a system.

Representative bodies may bring representative actions on behalf of their members seeking injunctive or declaratory relief, but not damages.

To view the full article, please click here

Originally published in International Comparative Legal Guide

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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