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Limitation of certain prosecutions
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8. The Principal Act is amended by the insertion of the following sections after section 7:
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“Limitation of certain prosecutions
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7A. An undertaking shall not be prosecuted for an offence under section 6 unless the offence—
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(a) relates to agreements between undertakings, decisions by associations of undertakings or concerted practices, and
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(b) involves—
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(i) price fixing,
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(ii) market sharing,
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(iii) output restrictions,
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(iv) bid-rigging,
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(v) collective boycott agreements,
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(vi) sharing information concerning future prices and future quantities of production, or
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(vii) restricting the ability of undertakings to carry out research and development or to continue to use their own technology for future research and development.
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Defences - administrative proceedings
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7B. (1) In administrative proceedings in respect of a breach of section 4 or Article 101 of the Treaty on the Functioning of the European Union—
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(a) it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to—
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(i) directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice,
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(ii) engage in bid-rigging,
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(iii) limit output or sales, or
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(iv) share markets or customers,
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has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise,
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(b) it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue of section 4(2), and
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(c) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union, it shall be a good defence to prove that—
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(i) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union,
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(ii) at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union, or
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(iii) the agreement, decision or concerted practice did not contravene that prohibition by virtue of Article 101(3) of the Treaty on the Functioning of the European Union.
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(2) In administrative proceedings in respect of a breach of section 4 or 5 or of Article 101 or Article 102 of the Treaty on the Functioning of the European Union—
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(a) it shall be a good defence to prove that the act concerned was done pursuant to a determination made or a direction given by a statutory body, and
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(b) for the purpose of determining liability, any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.
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(3) In this section—
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‘administrative proceedings’ means proceedings, including proceedings before an adjudication officer or court, relating to any of the following:
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(a) a prohibition notice;
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(b) a statement of objections under section 15L;
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(c) a referral to an adjudication officer under section 15M;
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(d) administrative sanctions;
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‘competing undertakings’ means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.”.
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