This section deals with a number of areas in relation to monopolies legislation, including Section 5 of the Competition Act, 2002, abuse of a dominant position, vertical agreements, and non-cartel horizontal agreements.
The main priority in the work of the Monopolies Division is the enforcement of Section 5 of the Competition Act, 2002. The Competition Act, 2002 was enacted to consolidate and modernise competition law and policy.
Section 5 of the Act prohibits the abuse of a dominant position by one or more undertakings. A position of dominance does not itself breach the Act. For that to occur, a dominant undertaking must abuse that position.
The Division is also responsible for the investigation of anti-competitive vertical agreements (e.g. refusal to supply) and the assessment of non-cartel horizontal agreements (e.g. on R&D, group purchasing, standards setting and copyright).
On 1 January 2003 the Division became responsible for Declarations. Under the Act, the Competition Authority may issue a declaration that a specified category of agreements may contain necessary desirable restrictions or identify certain restrictions should not be included. Following a public consultation process held in 2003, the Authority published a Notice and Declaration in respect of vertical agreements and concerted practices with effect from 1st January 2004. Documents relating to the consultation process and the final Notice and Declaration can be accessed from the Cometition Authority website.
The Division will also play a role in investigating completed non-notifiable mergers that breach the Act by constituting an abusive extension of a dominant position or adversely affecting competition in general.
The Authority receives numerous complaints alleging anti-competitive behaviour, which fall within the remit of the Division. The Division investigates such complaints and also conducts investigations on its own initiative. When investigating such matters, the Division usually writes to the party subject to the complaint, setting out the alleged breach and requesting information and documentation. Undertakings typically comply with these requests. However, when conducting an investigation, the Division may need to examine witnesses on oath and/or conduct searches. The Authority decides when and if to issue witness summonses.
Frequently a solution acceptable to the Authority is reached after extensive negotiations. The Authority reserves the right in every case to institute legal proceedings where solutions cannot be reached. On summary conviction the court can impose fines of up to €3,000 and on indictment, the fine is whichever is the greater of the following: €4,000,000 or 10% of annual turnover. Under the 2002 Act individuals no longer face gaol sentences for breaches of section 5 or for anti-competitive vertical agreements.
The 2002 Act also enables the Authority to make an application to the Court to order the adjustment of a dominant position or allow its continuance only on specified conditions. In other words, the court can order the breaking up of an undertaking that has abused its dominant position. In civil cases, the court can also grant Injunctive and Declaratory Relief.
The Monopoly Division has a small number of joint cases with the Cartels Division and liases with the Advocacy Division with respect to a number of regulated markets where a single firm is dominant (e.g. electricity & gas industries). Such industries typically have regulatory bodies such as the Commission for Energy Regulation and the Commission for Communications Regulation. Under the new Act the Competition Authority entered into co-operation agreements with these bodies so as to avoid duplication of activities involving competition issues and to ensure consistency in decision-making.