Competition (Amendment) Act 2012

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Applications to High Court for orders in relation to certain agreements.

5.— The Principal Act is amended by the insertion of the following section:

“14B.— (1) This section applies to an agreement entered into by the competent authority with an undertaking—

(a) following an investigation referred to in paragraph (b) of subsection (1) of section 30, and

(b) that requires the undertaking to do or refrain from doing such things as are specified in the agreement in consideration of the competent authority agreeing not to bring proceedings under section 14A (inserted by section 4 of the Competition (Amendment) Act 2012) in relation to any matter to which that investigation related or any findings resulting from that investigation.

(2) The High Court may, upon the application of the competent authority, make an order in the terms of an agreement to which this section applies if it is satisfied that—

(a) the undertaking that is a party to that agreement consents to the making of the order,

(b) that undertaking obtained legal advice before so consenting,

(c) the agreement is clear and unambiguous and capable of being complied with,

(d) that undertaking is aware that failure to comply with any order so made would constitute contempt of court, and

(e) the competent authority has complied with subsection (3).

(3) Where the competent authority proposes to make an application for an order under subsection (2) in respect of an agreement to which this section applies, it shall, not later than 14 days before the making of the application—

(a) publish the terms of that agreement on a website maintained by the competent authority, and

(b) publish a notice, in not fewer than 2 daily newspapers circulating throughout the State—

(i) stating that it intends to make such application,

(ii) specifying the date on which such application will be made, and

(iii) stating—

(I) that the agreement to which the proposed application relates is published, in accordance with paragraph (a), on a website maintained by it, and

(II) the address of that website.

(4) An order under subsection (2) shall not have effect—

(a) until the expiration of the period of 45 days from the making of the order, or

(b) where an application is made to the High Court under subsection (5) in respect of the order, until the making of a final determination in relation to that application.

(5) The High Court may, upon the application of any person (other than the competent authority or the undertaking to which an order under this section applies) made during the period referred to in paragraph (a) of subsection (4), make an order varying or annulling an order under subsection (2) if it is satisfied that the agreement in respect of which the order was made requires the undertaking to which the order applies to do or refrain from doing anything that would result in a breach of any contract between the undertaking concerned and the applicant or that would render a term of that contract not capable of being performed.

(6) The High Court shall not make an order under subsection (5) if it is satisfied that the contract or term of the contract to which the application for such order relates contravenes section 4 or 5, or Article 101 or 102 of the Treaty on the Functioning of the European Union.

(7) The High Court may, upon the application of the competent authority or an undertaking to which an order under subsection (2) applies, make an order varying or annulling the first-mentioned order if—

(a) the party (other than the applicant for the order) to the agreement to which the first-mentioned order applies consents to the application,

(b) the first-mentioned order contains a material error,

(c) there has been a material change in circumstances since the making of the first-mentioned order that warrants the court varying or annulling the order, or

(d) the court is satisfied that, in the interests of justice, the first-mentioned order should be varied or annulled.

(8) Subject to any order under subsection (9), an order under subsection (2) shall cease to have effect upon the expiration of 7 years from the making of the second-mentioned order.

(9) The High Court may, upon the application of the competent authority made not earlier than 3 months before the expiration of an order under subsection (2), make an order extending the period of the first-mentioned order (whether or not previously extended under this subsection) for a further period not exceeding 3 years.

(10) Paragraphs (a), (b), (c) and (d) of subsection (2) shall apply in respect of the determination of an application referred to in subsection (9) as they apply in respect of the determination of an application referred to in subsection (2).

(11) In this section ‘undertaking’ includes an association of undertakings.”.