Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Prior to the adoption of the Competition Act 2002, undertakings could apply to the competition authority receive for a “license” or a “certificate”. A certificate was awarded where the notified agreements were deemed not to restrict competition. A license was awarded where the agreement was considered to restrict competition but where its pro-competitive aspects outweighed its anticompetitive effe …

Exemptions

Section 4 of the Competition Act mirrors Article 101 TFEU and prohibits all agreements between undertakings and decisions by associations of undertakings 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 any part of the State.

This includes agreements which fix prices, limit or control production or markets or share markets or sources of supply, as well as practices such as the application of dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage. The prohibition set out in Section 4 also applies to practices such as tying, i.e. the attaching of supplementary obligations to a commercial contract where such obligations have nothing to do with the subject-matter of the contract.

The 2022 Competition (Amendment) Act added that agreements concerned with bid-rigging were anticompetitive.

The prohibition

Prior to the adoption of the Competition Act 2002, undertakings could apply to the competition authority receive for a “license” or a “certificate”. A certificate was awarded where the notified agreements were deemed not to restrict competition. A license was awarded where the agreement was considered to restrict competition but where its pro-competitive aspects outweighed its anticompetitive effects. The authority also had the power to adopt category certificates and category licenses which operated on much the same basis as EU block exemption regulations. The 2002 Act has reduced the role of the competition authority in the exemption procedure.

Under the new regime, provision is no longer made for the express granting of individual exemptions. From now on, any agreement complying with the conditions set out at Section 4(5) is automatically considered to benefit from an individual exemption. Under subsection (5), to receive an exemption, an agreement must contribute 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 must not:

- (a) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives,

- (b) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

Thus, since the coming into force of the 2002 Act (July 2002), applications for individual exemption are no longer made to the competition authority and in practice, undertakings will now have to make this analysis themselves, instead of relying on the decision of the authority.

The authority retains the power to issue Category Certificates. The Competition Authority [now replaced by the Competition and Consumer Protection Commission (CCPC)] previously adopted Category Licenses in respect of exclusive purchasing of motor fuels, exclusive distribution, exclusive purchasing of cylinder liquid petroleum gas (LPG) and franchising. However, following the example of the EU authorities, it has replaced most of these licenses by a single Category Certificate and License applicable to all forms of vertical restraints. This latter includes non-exclusive and exclusive distribution agreements, exclusive purchasing agreements, franchising and selective agreements and combinations thereof (Section 4, (3)).

Apart from the possibility of an exemption under Section 4, Section 6 sets out acceptable defenses where it is alleged that an agreement is contrary to the prohibition on restrictive agreements. These defenses include, inter alia:

- that the agreement was covered by an individual exemption or the provisions of an EU block exemption regulation in force at the time;

- that the agreement was entered into pursuant to a direction given by a statutory authority. 

Global Competition Law

393. Exemptions

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Les notions juridiques connexes

393. Exemptions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise