Competition Law
Irish competition law is contained in various pieces of legislation, most importantly the Competition Act 2002, as amended by the Competition (Amendment) Act 2006, by the Competition (Amendment) Act 2012 by Parts 3 and 4 of the Competition and Consumer Protection Act 2014, and by the Competition (Amendment) Act 2022. This legislation is referred to collectively as the Competition Acts 2002 to 2022.
EU competition law is contained primarily in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU).
What conduct is prohibited by competition law?
The Competition Act 2002, as amended (Competition Act), contains two main prohibitions:
- 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”. The Competition Act lists some specific types of behaviour which are expressly prohibited. These include agreements 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
- 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)
- are concerned with bid-rigging
- Section 5 of the Competition Act prohibits the abuse of a dominant position. Importantly, it does not prohibit a firm from having a dominant position – only the abuse of that dominant position. Generally a firm is considered to be dominant if it is able to act without taking account of the reaction of its customers or its rivals, e.g. a firm which can increase its prices unilaterally because it knows that its customers have few, if any, satisfactory alternative sources of supply and therefore little choice but to pay the higher price. Section 5 is not breached when a firm’s vigorous competition takes sales away from less efficient rivals, since this is competition working properly.
Articles 101 and 102 of the TFEU prohibit the same kind of conduct as that prohibited by sections 4 and 5 of the Competition Act, provided it can be shown that the conduct in question may have an effect on trade between Member States of the EU.
It is the CCPC’s role to enforce Irish and EU competition law by investigating suspected breaches of these prohibitions.
Part 4A of the Competition Act (as inserted by the Communications Regulation (Amendment) Act 2007 and amended by the Competition and Consumer Protection Act 2014) gives the Commission for Communications Regulation (ComReg) powers to enforce sections 4 and 5 of the Competition Act and Articles 101 and 102 of the TFEU in the field of electronic communications networks, services and associated facilities.
Part 2D of the Competition Act gives the CCPC the power to fine companies that break competition law. For instance, by engaging in cartels, bid-rigging or abusive market practices.
Part 2E of the Competition Act sets out that the CCPC must put in place a programme to grant leniency to undertakings in exchange for disclosing their participation in a cartel and co-operating with the CCPC’s investigation. Find out more about the immunity and leniency programmes.
What are the penalties for breaching competition law?
In Ireland, businesses or individuals that breach competition law may be subject to criminal, administrative or civil sanctions.
- Criminal – As regards criminal sanctions, 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 of the TFEU. The CCPC investigates alleged breaches of the Competition Act and can either itself bring a summary prosecution in 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 section 6 or section 7.
- Administrative – Since the commencement of the Competition (Amendment) Act 2022, the CCPC has the power to impose administrative fines on undertakings it believes to have breached competition law. An undertaking may be fined up to €10 million or 10% of the undertaking’s annual turnover, whichever is greater. The CCPC’s Administrative Leniency Policy (ALP) details the circumstances in which the CCPC will grant leniency. Currently, the CCPC will only grant leniency in the context of cartel or resale price maintenance agreements. Leniency in the administrative context may involve full immunity from financial sanctions, or a reduction of the administrative fine that would otherwise have been imposed.
- Civil – As regards civil sanctions, section 14A of the Competition Act gives the CCPC the power to apply to the Circuit Court or the High Court to seek a declaration (i.e. a court ruling that a particular arrangement or behaviour is unlawful) or an injunction (e.g. a court ruling requiring a particular arrangement or behaviour be stopped) in any case involving an alleged breach of section 4 or 5 of the Competition Act or Article 101 or 102 of the TFEU.
The most serious types of anti-competitive conduct are often referred to as ‘hardcore’ breaches of competition law. The following are examples of hardcore breaches of competition law and are subject to the most severe criminal sanctions:
- fixing or agreeing prices with competitors for goods and services, including the level of price increases or discounts
- sharing markets among competitors by dividing up territories or sharing out customers
- agreeing with competitors to limit production or supply by controlling the quantity of goods or services to be supplied in a given market
- rigging bids among competitors so that one particular person or company wins the contract
In the case of these hardcore breaches of competition law
- a business can be fined up to €50 million or 20% of its annual business turnover, whichever is greater, if convicted on indictment
- an individual found guilty of an offence on indictment can be fined up to €50 million or 20% of his or her annual individual turnover, whichever is greater. An individual can also be imprisoned for up to 10 years.
In accordance with amendments introduced by the Competition (Amendment) Act 2012 (2012 Act), an individual convicted of certain competition offences is not eligible for probation. In addition, a business or individual convicted of competition offences may potentially be ordered to pay the costs incurred by the CCPC in relation to the investigation, detection and prosecution of the offence.
A further amendment made by the 2012 Act, gave the courts a discretionary power to disqualify a person from acting as a company director where the person has been found to have breached section 4 or 5 of the Competition Act, or Article 101 or 102 of the TFEU. Firms convicted of a criminal offence under competition law may also be excluded from participating in future public procurement competitions.
Can individuals be prosecuted?
Individual directors and managers can be prosecuted for competition law offences even if the company for which they worked when committing the offence was not prosecuted.
It is the responsibility of the directors and managers of a business to ensure that the business complies with competition law. But it is not only directors and managers who can be prosecuted. Certain employees who involve themselves in serious anti-competitive activities may also face prosecution if they have played a role in such activity.
An individual or business that assists a cartel can also be found guilty of a criminal offence. In Ireland, there have been convictions for aiding and abetting cartels where individuals did not work for the firms engaged in price fixing, but took on a co-ordinating or facilitating role in the cartel.
What are the legislative provisions relating to mergers and acquisitions?
The CCPC is the statutory body responsible for the enforcement of merger control law in Ireland. Part 3 and Part 3A of the Competition Act set out the legislative provisions relating to the review of mergers and acquisitions. Read more on our role in relation to mergers.
The Competition (Amendment) Act 2022 (2022 Act) transposed Directive (EU) 2019/1 (ECN+ Directive) into Irish law. The ECN+ Directive ensures that competition authorities in EU Member States have similar powers and can be more effective enforcers of competition law. The 2022 Act made additional changes to the Competition Act 2002 (as amended) not specifically related to the ECN+ Directive.
The 2022 Act expanded the CCPC’s power to enforce EU and Irish competition law. It greatly enhances the ability of the CCPC to tackle cartels, bid-rigging, anti-competitive practices and anti-competitive mergers. The CCPC can now:
- make a finding that a breach of competition law has occurred
- issue prohibition notices in response to certain suspected infringements of competition law
- impose non-criminal penalties (such as structural and behavioural remedies, and/or financial sanctions) in relation to certain breaches of competition law
- impose periodic penalty payments to compel businesses to
- comply with searches
- provide complete and correct information in response to a request for information
- attend at interviews and give evidence or produce information and documentation
- comply with a prohibition notice
- comply with commitments, or
- comply with structural or behaviour remedies
- apply an administrative leniency programme
- avail of additional powers including the power to
- conduct surveillance when investigating certain criminal offences, and
- compel businesses to notify below threshold mergers (see more about Mergers.)
Administrative Regime
The 2022 Act introduced an Administrative Enforcement Regime. This gives the CCPC the power to make decisions that undertakings, or associations of undertakings, have breached competition law by engaging in anti-competitive practices, in breach of section 4 or 5 of the Competition Act 2002 (as amended) and/or Article 101 or 102 of the Treaty on the Functioning of the European Union. The CCPC can impose administrative financial sanctions on undertakings, and associations of undertakings, of up to €10 million, or 10% of total worldwide turnover (whichever is greater), in the business year preceding the CCPC’s decision.
Administrative office staff
Brian Kennedy – Chief Adjudication Officer
Brian Kennedy is a senior counsel practising in general civil law, with a particular focus on commercial and public law, including European Union law. He is a graduate of Trinity College Dublin (LL.B.), the College of Europe, Bruges (LL.M.), and the King’s Inns. He has practised as a barrister, arbitrator, and mediator since 1997 and was called to the Inner Bar in 2012. He is a member of the Central Bank of Ireland’s Regulatory Decisions Panel. He currently serves as Chair of the Commercial Litigation Association of Ireland and is a former Chair of the EU Bar Association of Ireland. He is also a Fellow of both the International Academy of Trial Lawyers and the Chartered Institute of Arbitrators.
Andrew Taylor
Andrew Taylor is a member of the UK Competition Appeal Tribunal, the UK’s specialist court for competition and regulatory matters, and chairs the NHS Independent Panel on Patient Choice and Procurement. Previously, he was co-founder and partner at Aldwych Partners, a boutique consultancy that advised on competition and antitrust issues, the former head of the NHS competition regulator, and a former Senior Director at the UK Competition Commission. He started his career as an economist in the Treasury Department of the Australian Government, followed by a spell as a special adviser to an Australian Cabinet Minister. Andrew holds a degree in Economics from the University of Adelaide and a Masters in Regulation from the London School of Economics.
Barry Doherty
Barry Doherty is a senior counsel specialising in EU law and Irish administrative law. He has advised both public and private bodies in Ireland on competition and State aid matters. He is also a member of the panel of adjudicators at the Commission for Communications Regulation (ComReg). Before commencing work as a barrister, he served as a Member of the European Commission’s Legal Service, working on major competition cases and mergers, and representing the Commission in significant litigation. In addition, he was previously senior legal adviser to ComReg and acted as a part-time Member of the Board of Appeal of the European Chemicals Agency based in Finland. Barry holds undergraduate law degree from Trinity College Dublin and also completed a Ph.D. entitled “Competition law in Ireland” there. He also obtained an LL.M from the College of Europe, Bruges and the degree of Barrister at Law from the King’s Inns, Dublin.
Dr Catarina Marvão
Catarina Marvão is an Assistant Professor in the UCD Michael Smurfit School of Business, Banking and Finance, and an Affiliated Professor in the School of Accounting, Economics and Finance at T.U. Dublin. She is also Affiliated Faculty at Stockholm School of Economics. She is the Competition and Consumer Protection Commission’s (CCPC) non-governmental adviser to the International Competition Network and a research affiliate at the Central Bank of Ireland. Prior to this, she worked in the Economics Department of the Portuguese Water and Residuals and Regulation Institute and has also held a research position at the Italian Competition Authority. Catarina holds a Ph.D. in Economics from Trinity College Dublin and an MSc in Economics from Uni Catholique de Louvain; Católica Lisbon.
Dr Dermot Nolan
Dermot Nolan is an economist and currently serves as Senior Adviser at Fingleton, a strategic consultancy that advises companies on complex competition and regulatory issues. He previously worked as manager of the mergers division of the Competition Authority, a predecessor organisation to the Competition and Consumer Protection Commission (CCPC), producing reasoned decisions on high profile and complex investigations. He is a former Director of the Retail Division and Senior Economic Adviser at the Commission for Communications Regulation (ComReg) and was recently appointed to its panel of adjudication officers for Regulatory Adjudication. He also served as Commissioner and Chairperson at the Commission for Energy Regulation, now the Commission for the Regulation of Utilities (CRU), and as CEO of the Office of Gas and Electricity Markets (Ofgem). Dermot holds a B.A. (Mod) in Economics from Trinity College Dublin and a Ph.D. in Economics from Yale University.
Dr Elaine Byrne
Elaine Byrne is a practising barrister specialising in public law. She was recently appointed Chairperson of the Policing and Community Safety Authority of Ireland and currently serves as Acting Chair of the Health Committee of the Pharmaceutical Society of Ireland.
She previously served as a Member and former Chairperson of the Policing Authority and acts as a Governance Consultant to the European Commission. Earlier in her career, she lectured in law at the Institute of Technology Carlow and in political science at Trinity College Dublin.
Elaine holds a Professional Diploma in Arbitration from University College Dublin, a Diploma in Regulation Law and Practice from the Law Society of Ireland, and a PhD in Governance and Political Science from the University of Limerick.
Eoin Ó Cuilleanáin
Eoin Ó Cuilleanáin is a practising barrister specialising in EU and Irish competition, regulatory, and public law. He has worked in the competition and regulatory departments of leading Irish law firms, advising Irish companies on the application of EU and domestic competition law. Eoin holds a Barrister-at-Law Degree from the King’s Inns, Dublin, a Post-Graduate Diploma in EU Competition Law from King’s College London, a Post-Graduate Diploma in Law from Dublin Institute of Technology, an MSc in Economics from University College London, and a B.A. in Economics and Political Science from Trinity College Dublin.
Professor Francis O’Toole
Francis O’Toole is a lecturer in the Department of Economics at Trinity College Dublin, a position he has held since 1991. He has also served as Head of the Department of Economics and Director of the Business, Economics and Social Studies (‘BESS’) Programme and BESS Course Office at Trinity College Dublin. He has served as a consultant on competition policy and regulation and has worked with many public sector and private sector entities in Ireland and abroad (e.g. Charles River Associates in California). Francis holds a Post-Graduate Diploma in EC Competition Law from King’s College London and a Ph.D. in Economics from Georgetown University, Washington D.C., USA.
Professor Frédéric Yves Jenny
Frédéric Yves Jenny is an economist trained in microeconomics, market theory, and industrial organisation. He is Fernand Braudel Fellow at the European University Institute Department of Law, Co-Director of the George Washington University Competition and Innovation Lab and an Emeritus Professor of Economics at ESSEC Business School. He has held several senior positions within the French Government and Judiciary, including serving as Judge in the Commercial Economic and Financial Chamber of the French Supreme Court (Cour de cassation), and as Vice President and General Counsel of the French Competition Authority. He has also served as Non-Executive Director of the UK Office of Fair Trading, as Chairman of the WTO Working Group on Trade and Competition Policy, and as Chairman of the OECD Competition Committee. Frédéric holds an MSc and a Ph.D. in Economics from Harvard University and a Doctorate in Economics from the University of Paris.
Isolde Goggin
Isolde Goggin is the Chairperson of the Central Bank of Ireland’s Consumer Advisory Group, President of the International Institute of Communications, Non-Executive Director of the Northern Ireland Authority for Utility Regulation and Non-Executive Director of Trinity College Dublin. Prior to this, she served as the first Chairperson of the Competition and Consumer Protection Commission (CCPC) and also chaired one of its predecessor organisations, the Competition Authority. She is a former Member and Chairperson of the Commission for Communications Regulation (ComReg) and was recently appointed to its panel of adjudication officers for Regulatory Adjudication. Isolde is a Chartered Engineer and Honorary Life Fellow of Engineers Ireland, with further qualifications in Business Administration and Competition Law.
Johan Keetelaar
Johan Keetelaar is a Senior Adviser at Oxera LLP (Amsterdam, Brussels, UK) and has advised public and private clients on competition and regulatory cases. He was recently appointed to the panel of adjudication officers for Regulatory Adjudication at the Commission for Communications Regulation (ComReg). Prior to this, he held senior leadership roles including Director for Economic Policy at Meta Platforms Inc. (EMEA), Director of Telecommunications, Transport and Post, and Director of Competition at the Authority for Consumers and Markets (ACM) in the Netherlands. He also previously served in senior positions at OPTA (Independent Postal and Telecommunications Authority) and was responsible for adjudicating complex competition and regulatory cases at both OPTA and the ACM. Johan holds a MSc in Econometrics from the University of Amsterdam.
Julianne O’Leary
Julianne O’Leary is a solicitor qualified in both the UK and Ireland, having originally trained as a barrister in Ireland. She specialises in competition law and has previously served as Senior Competition Counsel at CRH plc. Prior to this, she was a Partner at Stephenson Harwood LLP (London), where she advised on all areas of competition law. She also served as a Senior Associate in the EU Competition Practice at Clifford Chance LLP (London and Brussels), advising on global investigations and merger filings, and on secondment as Antitrust Counsel at Shell International Limited. She previously lectured in EC competition law and public law of the EC at the University of Exeter. Julianne holds a Barrister-at-Law Degree from the King’s Inns, Dublin, and an LL.B from the National University of Ireland.
Laura McGovern
Laura McGovern is a solicitor specialising in advising on competition law and enforcement. She was recently appointed to the panel of adjudication officers for Regulatory Adjudication at the Commission for Communications Regulation (ComReg), having previously served as Legal Adviser in its Wholesale Division. She has also worked in senior legal roles in the Competition and Consumer Protection Commission (CCPC). She previously served as a Senior Associate Solicitor in the EU Competition and Trade Department at Baker McKenzie, London, and as Associate Solicitor of the Antitrust Competition & Trade Department at Freshfields Bruckhaus Deringer LLP, London. Laura holds a Bachelor of Laws LL.B from the University of Bristol and a Diploma in Judicial Skills and Decision-Making from the Law Society of Ireland.
Lorna Gallagher
Lorna Gallagher is a practising barrister and former Tax Appeals Commissioner with extensive experience in litigation, adjudication and quasi-judicial decision-making. She practices in a broad range of civil law areas and in tax law. As an experienced adjudicator she is proficient in tribunal and administrative law, fair procedures and judicial review. She is widely published, peer reviewed and regularly speaks at industry events and legal conferences. She is an Associate of the Irish Tax Institute, a committee member of the Tax Bar Association and a former Member of the International Association of Tax Judges. Lorna is a qualified Chartered Tax Adviser and holds a Barrister-at-Law Degree from the King’s Inns and a Bachelor of Civil Law from University College Dublin.
Dr Muiris Ó Céidigh
Muiris Ó Céidigh is a solicitor and notary public, and the current Chief Executive of the National Milk Agency, a position he has held since 1995. He is a Member of the Property Services Appeal Board, a Governor of Belfast Metropolitan College, and a former Acting Chair and Board Member of the Audit and Risk Committee for the Northern Ireland Assembly. Prior to this, he was the Chair and Director of the Irish Council for Civil Liberties, a Member of Council for the Veterinary Council of Ireland, and Non-Executive Director of the Economic Research Institute of Northern Ireland. Muiris holds a Doctorate in Governance from Queen’s University Belfast, an Advanced Diploma in Judicial and Decision-Making Skills from the Law Society of Ireland, and an MSc in Economics (Public Policy) from Trinity College Dublin.
Sarah Johnson
Sarah Johnson is a former solicitor specialising in competition law and regulation. She serves on the Board of the National Treatment Purchase Fund and has also served on the Board of the Road Safety Authority. Prior to this, she was a partner in Philip Lee LLP, a firm specialising in EU and regulatory law, where she for many years advised private and public clients, including governmental bodies such as the Health Service Executive, on the application of EU and competition law. She also represented clients in regulatory litigation before the Irish courts. Sarah holds an LL.B from Trinity College Dublin, an LL.M in European Community Law from the College of Europe, Bruges, and a Diploma in Mediator Training from the Law Society of Ireland.
Susan Ahern
Susan Ahern is a senior counsel, practising barrister, international arbitrator, and mediator specialising in alternative dispute resolution, professional disciplinary regulation, sports law and governance. She currently serves in decision-making roles across tribunal and regulatory bodies in the EU, Ireland, and the UK, including at the European Patent Office, the British Horseracing Authority, the Approved Housing Regulatory Authority Appeals Panel, and the Bookmakers Appeal Committee. She is an Arbitrator Member of the European Commission Dispute Settlement Panel under trade agreements between the EU and third countries, serves as an Arbitrator for the Court of Arbitration for Sport and is a member of the ICSID Conciliator Panel.
