Who does competition law apply to?

Competition law under both Irish and EU law applies to what is known as an “undertaking”.

What is an “undertaking” under competition law?

The definition of an undertaking can be found under section 3(1) of the Competition Act 2002 (as amended).

Under this section, an undertaking is defined as:

“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 …”.

Does legal status or funding affect whether an entity is an undertaking?

EU Courts have confirmed that an entity can be considered an undertaking regardless of its legal status (for example, whether it is a State‑owned company or a charity) or the way it is financed.

Can a group of companies be considered a single undertaking? 

Under competition law, the term “undertaking” can capture a group of companies under common ownership.

Because businesses within the same corporate group are typically part of the same undertaking, agreements between them cannot, by definition, breach:

• Section 4 of the Competition Act 2002, or
• Article 101 of the Treaty on the Functioning of the European Union (TFEU).

Are commercial businesses usually considered undertakings?

In general, if a business is a commercial one, it will be considered an undertaking for the purposes of competition law.

Undertakings operate across all sectors of the Irish economy. Examples include:

• Tech companies
• Energy providers
• Retailers
• Sporting bodies

What about individuals within an undertaking?

For breaches of competition law that amounts to a criminal offence, if the conduct in question was authorised, or consented to, by a director, manager, or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence.

For breaches of competition law that come within the administration enforcement regime, a finding of infringement can only be made by an adjudication officer against the undertaking itself, so penalties such as fines can not be administered against any director, manager, or other similar officer of the undertaking.

Do competition rules apply to trade bodies and representative groups?

Associations of undertakings, such as trade bodies or representative groups, are also bound by competition law where the members of those associations are themselves undertakings. You can learn more in our guidance for trade associations.

Can public bodies be considered undertakings?

In some circumstances, public bodies may also be considered undertakings, depending on the facts of the case.

Irish courts have found that:

• A public body can be an undertaking in certain cases, but not in all cases, and
• The same public body may be an undertaking when performing some functions, but not when performing others.

When is a public body considered an undertaking?

Irish courts have held that a public body can be treated as an undertaking for competition law purposes where it carries out an economic activity, regardless of how it is:

• Created,
• Funded, or
• Structured.

When does competition law not apply to a public body?

Competition law will not apply where a public body is acting:

• Exclusively in the exercise of its public powers, and
• In pursuit of a public interest objective.

This is the case even if:

• The body charges for its services, and
• Those services could, in theory, be supplied by private operators.

How do you assess whether an entity is an undertaking?

When assessing whether an entity is an undertaking, it is necessary to determine whether the entity is:

• Carrying out an economic activity for gain, or
• Acting exclusively in the exercise of its powers as a public authority, with the objective of securing a benefit in the public interest.

How can you report suspected anti‑competitive activity?

If you believe that one or more undertakings are engaging in anticompetitive activity, you can report this to the CCPC.