IRELAND Law and Practice Contributed by: Philip Tully, Emma Doherty, Alice Duffy, Simon Shinkwin and Marie McGinley, Matheson LLP
6.3 Cartels Anti-competitive agreements and practices are pro - hibited under the Act, based on Article 101 of the TFEU. The Act sets out a non-exhaustive list of agree - ments, decisions and/or concerted practices that are prohibited as they have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in Ireland or any part of Ireland. The Act applies to businesses operating in Ireland and international businesses where an agree - ment is found to restrict competition in Ireland. It is a criminal offence to enter into or implement an agreement, decision or concerted practice prohibited under the Act. The CCPC operates a Cartel Immunity Programme with the Director of Public Prosecutions and a separate Leniency Programme which provides for the possibility of immunity or leniency from pros - ecution or civil action for the company/business to come forward to report certain competition offences. 6.4 Abuse of Dominant Position Abuse of a dominant position is prohibited by the Act and Article 102 of the TFEU. The Act mirrors Article 102 of the TFEU, except that it refers to the abuse of a dominant position in trade for any goods or services in Ireland or any part of Ireland. While the Act refers to trade in goods and services in the state, its provisions are also likely to apply to international businesses/ trade that are/is found to be dominant and where there is an effect on trade in Ireland. Definition of Dominance There is no definition of dominance within the Act. The Irish courts and the CCPC have adopted the defini - tion formulated by the CJEU in case 27/76, United Brands v Commission [1978] ECR 207: “[a] position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being main - tained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its con - sumers”. The Act also sets out several examples of what con - stitutes abuse of dominance. These are:
• directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; • limiting production, markets or technical develop - ment to the prejudice of consumers; • applying dissimilar conditions to equivalent trans - actions with other trading parties, thereby placing them at a competitive disadvantage; and • making the conclusion of contracts subject to the acceptance by other parties of supplementary obli - gations that according to commercial usage have no connection with the subject of such contracts. Remedies As in the case of cartels, the Act makes abuse of a dominant position a criminal offence that can be prosecuted before the Irish courts and is punishable by financial penalties. The Act also includes specific provisions for aggrieved persons and the CCPC to take civil proceedings before the Irish courts seek - ing remedies for abuse of a dominant position. The remedies available in civil proceedings include a court declaration, damages, imposing structural measures and an injunction. 7. Intellectual Property 7.1 Patents Definition Any inventive product/process is patentable under Irish law if it: • is susceptible to industrial application; • is new; and • involves an inventive step. Certain subject matter is excluded from patentabil - ity under Irish law, including discoveries or scientific theories, computer programs and methods of doing business to the extent that they are claimed “as such”. Length of Protection Patent protection lasts for up to 20 years from the date of the application, subject to the payment of renewal fees. Irish law also provides for the extension of full- term patents for pharmaceuticals for human or animal use for up to five years.
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