Competition (Amendment) Act 2006

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Amendment of Competition Act 2002 by inserting new Part 2A.

1.— The Competition Act 2002 is amended by inserting the following Part after Part 2:

“PART 2A

Competition in Grocery Goods Trade

Definitions and operation of this Part.

15A.— (1) In this Part—

‘ allowance ’ includes any discount, rebate, price concession or other advantage that is collateral to a sale or purchase of grocery goods but is not applied directly to the selling or purchase price;

‘ grocery goods ’ means any food or drink for human consumption that is intended to be sold as groceries, and includes—

(a) any substance or thing sold or represented for use as food or drink for human consumption,

(b) any substance or thing sold or represented for use as an additive, ingredient or processing aid in the preparation or production of food or drink for human consumption, and

(c) intoxicating liquors;

‘ grocery goods undertaking ’ means, subject to subsections (2) and (3), an undertaking that is engaged for gain in the production, supply or distribution of grocery goods, whether or not the undertaking is engaged in the direct sale of those goods to the public;

‘ retailer ’ means a grocery goods undertaking that sells or resells grocery goods directly to the public.

(2) For the purposes of this Part, an undertaking that produces, supplies or distributes an additive, ingredient or processing aid referred to in paragraph (b) of the definition of ‘grocery goods’ in subsection (1) is not a grocery goods undertaking unless the additive, ingredient or processing aid is intended to be sold by a retailer as an additive, ingredient or processing aid.

(3) Subsection (2) applies only to the extent that the undertaking does not otherwise fall within the definition of ‘grocery goods undertaking’ in subsection (1).

(4) For the avoidance of doubt, this Part does not apply to that part of an undertaking’s operation the business of which is to do any of the following:

(a) serve or supply food or drink in the course of providing catering, restaurant or take-away services or any similar hospitality services;

(b) serve or supply intoxicating liquor for consumption on the premises.

(5) This Part operates without prejudice to Part 2.

Anti-competitive conduct in grocery goods trading.

15B.— (1) Subject to subsection (5), a grocery goods undertaking shall not directly or indirectly attempt to compel or coerce another grocery goods undertaking, whether by threat, promise or any like means, to resell or advertise for resale any grocery goods at—

(a) a price fixed directly or indirectly by the first mentioned grocery goods undertaking, or

(b) a price above a minimum price fixed directly or indirectly by the first mentioned grocery goods undertaking.

(2) Subject to subsection (5), a grocery goods undertaking shall not apply dissimilar conditions to equivalent transactions with any other grocery goods undertaking.

(3) Subject to subsection (5), a grocery goods undertaking shall not directly or indirectly compel or coerce, whether by threat, promise or any like means, another grocery goods undertaking to make any payment or grant any allowance for the advertising or display of grocery goods.

(4) Subject to subsection (5) and without limiting the generality of subsection (3), a retailer shall not directly or indirectly compel or coerce, whether by threat, promise or any like means, another grocery goods undertaking to make any payment or grant any allowance to the retailer in consideration of any of the following matters:

(a) providing space for grocery goods within a new retail outlet on or within the first 60 days after its opening to the public;

(b) providing space for grocery goods within a newly expanded or extended retail outlet on or within the first 60 days after the opening to the public of the expanded or extended part of the outlet;

(c) providing space for grocery goods within a retail outlet on or within the first 60 days after its opening to the public under new ownership.

(5) Conduct described in subsections (1) to (4) shall not be prohibited unless it has as its object or effect the prevention, restriction or distortion of competition in trade in any grocery goods in the State or in any part of the State.

Right of action for breach of section 15B.

15C.— (1) Any person who is aggrieved in consequence of any conduct which is prohibited under section 15B shall have a right of action under this subsection for relief against any of the following:

(a) any grocery goods undertaking which is or has at any material time been a party to the prohibited conduct;

(b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the prohibited conduct.

(2) The Authority shall have a right of action under this subsection in respect of conduct which is prohibited under section 15B.

(3) Subject to subsection (4), an action under subsection (1) or (2) may be brought in the Circuit Court or in the High Court.

(4) Subsections (4) to (6), (8) and (9) of section 14 apply with the necessary changes for the purposes of an action under subsection (1) or (2) of this section and, for those purposes, a reference in subsections (4) to (6), (8) and (9) of section 14 to an action under subsection (1) or (2) of that section is to be read as a reference to an action under subsection (1) or (2) of this section, as the case may be.”.