The European Antitrust Review 2015

Ireland: Competition Authority

Isolde Goggin

Chairperson of the Competition Authority

The Competition Authority is responsible for enforcing Irish and European competition law in Ireland and promoting competition in the economy. Competition law in Ireland is governed by the Competition Act 2002 and articles 101 and 102 TFEU. We do not ourselves make decisions on whether Irish or EU competition laws have been infringed. We investigate suspected breaches of competition law and either take legal proceedings ourselves in court or, in relation to hard-core cartels, send a file to the director of public prosecutions, who decides whether to prosecute on indictment. We can also block mergers between businesses that would substantially reduce competition and harm consumers. Any decision we take to block a merger or clear it with conditions can be appealed to the courts.

2013 continued to prove challenging for Ireland. Our focus remains firmly on how competition can help rebuild the Irish economy and on measures aimed at supporting the government’s Action Plan for Jobs. Increased competition in the local economy will help improve our competitiveness at a domestic and an international level.

As part of the government’s Action Plan for Jobs 2012, the Competition Authority carried out a study into competition in the Irish ports sector. The report was published in November 2013. It found that characteristics of the port sector in Ireland meant competition was always going to be limited; however, it could still be strengthened. The report made six recommendations to improve competition between and within ports, and the relevant government department has committed to a response within six months.

In 2008, the government announced the amalgamation of the Authority with the National Consumer Agency (NCA) as part of a rationalisation of state agencies. The legislation to enact the amalgamation was published in March 2014. We have been working with the NCA on amalgamating the two organisations. The Department of Jobs, Enterprise and Innovation (the Department) continues to prepare the legislation – the Competition and Consumer Protection Bill – for enactment, it is hoped, by mid-summer. The new legislation will comprehensively update existing competition and consumer law, and will merge the two bodies to form the Competition and Consumer Protection Commission.

In addition, the Department has committed to implement a Code of Practice to regulate certain practices in the grocery sector. Provision to place a code for retailers and suppliers on a statutory basis is included in the Competition and Consumer Protection Bill.

The Bill will also transfer responsibility for approving media mergers, from the point of view of plurality and diversity, from the minister for jobs, enterprise and innovation to the minister for communications, energy and natural resources. The new Competition and Consumer Protection Commission will continue to deal with the competition aspects.

In 2013, the Authority made 39 merger determinations, of which six were carried over from 2012. There was an increase in the number of mergers notified to us in 2013 to 37 from 33 in 2012.

In 2013, the Authority also concluded a review of its merger guidelines, Notice in respect of Guidelines for Merger Analysis, Decision No. N/02/04, published in December 2002. The new Guidelines for Merger Analysis – Notice N/13/001 – were published on 20 December 2013. They reflect the Authority’s experience in reviewing mergers since it was given this power by the 2002 Act and also take account of international developments in merger review over the past decade or so. They include detailed explanations of the Authority’s approach to merger review and provide guidance on the issues that are central to the Authority’s review of mergers and acquisitions.

In July 2013, general practitioners (GPs) of the Irish Medical Organisation (IMO) issued a press release condemning a reduction in fees proposed by the minister for health stating that it had been decided that GPs would withdraw from the provision of certain services. On 11 July 2013, the Authority wrote to the IMO stating its view that the decision of its GP Committee constituted collective action by GPs and was in breach of competition law, specifically section 4 of the Act and article 101 TFEU. It called on the IMO to rescind its decision immediately and to publish its agreement to do so on its website. Following the IMO’s failure to comply with the Authority’s request, the Authority instituted proceedings in the High Court on 16 July 2013 seeking certain orders against the IMO. The case was settled on 28 May 2014 when the IMO provided undertakings to the High Court:

  • not to organise or recommend the collective withdrawal of services or boycotts by its members; and
  • to advise its members that they should decide individually and not collectively whether to participate in publicly funded GP health services on such terms as are offered by the minister for health.

The undertakings form part of a settlement agreement reached between the Authority and the IMO. The agreement also contains a number of other provisions that confirm the Authority’s position – from the point of view of competition law enforcement – regarding the role of the IMO in any process of engagement with the minister for health or the HSE, and the limitations to that role.

The FitFlop brand of footwear, which claims to tone leg muscles, is distributed in Ireland by Double Bay Enterprises, trading as Brazil Body Sportswear. In September 2011, the Authority received a complaint that Brazil Body Sportswear had engaged in resale price maintenance by various means in recent years. Following an investigation, the Authority formed the view that Brazil Body Sportswear had infringed section 4 of the Act by:

  • engaging in resale price maintenance; and
  • implementing a passive sales ban with respect to FitFlop footwear.

The Authority gave Brazil Body Sportswear the opportunity to cease engaging in resale price maintenance and the passive sales ban as outlined above. In November 2012, Brazil Body Sportswear and the Authority entered into an agreement under which Brazil Body Sportswear undertook to refrain from engaging in these practices and to inform its retailers accordingly. In return, the Authority agreed not to bring proceedings against Brazil Body Sportswear. On 18 December 2012, the High Court granted the Authority an Order under section 14B of the Competition Act 2002 (as inserted by the Competition (Amendment) Act 2012), in relation to this Agreement, making the commitments given by Brazil Body Sportswear an Order of the High Court. The order came into effect in February 2013.

In October 2013, the Authority closed a long-running investigation into supply arrangements in the bulk liquid petroleum gas sector. The Authority has previously assessed, on a number of occasions, exclusive purchasing agreements between bulk liquid petroleum gas suppliers and commercial users.

In 2005 – and again in 2010 – the Authority publicly consulted on whether to issue a Declaration in respect of bulk liquid petroleum gas. Following receipt of submissions, and detailed analysis, the Authority decided in October 2013 not to issue a separate Declaration in respect of bulk liquid petroleum gas. Accordingly, bulk liquid petroleum gas agreements are subject to the Authority’s 2010 Verticals Declaration and, more broadly, to the Act. The Authority closed its investigation on a number of grounds:

  • insufficient evidence of consumer harm;
  • an unsatisfactory number of complaints and possible remedies; and
  • the difficulty of securing an abuse of dominance ruling.

Two investigations concerning alleged hard-core breaches of section 4 of the Act were concluded in 2013. These investigations concerned allegations of criminal behaviour, but there was insufficient evidence to warrant the Authority referring a file to the director of public prosecutions . In the interests of natural justice, and to protect the rights of those companies and individuals investigated, the Authority will not provide any further detail on these investigations.

2013 also saw the Authority continue its outreach activities. One of the highlights of our events calendar was the 2013 European Competition and Consumer Day which we hosted jointly with the NCA. The conference was attended by over 200 delegates in Dublin Castle and was part of Ireland’s Presidency of the Council of the European Union 2013. Compliance with competition law is a big focus for the Authority and forms the basis of our outreach activity to the business community. As part of this focus, the Authority produced a new information booklet in 2013 called Complying with Competition Law – A Guide for Businesses and Trade Associations.

Chairperson of the Competition Authority

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