1 What are the legal sources that set out the antitrust law applicable to vertical restraints?
Section 4(1) of the Competition Act, 2002 (as amended) (the Act) (available at www.tca.ie) prohibits anti-competitive agreements between undertakings and is equivalent at national level to article 101(1) of the Treaty on the Functioning of the European Union (TFEU). Section 4(3) of the Act allows the Competition Authority (the Authority) to make written declarations that, in its opinion, specified categories of agreement comply with the efficiency criteria in section 4(5) of the Act (equivalent to the power of the European Commission (the Commission) to grant block exemptions for categories of agreement that comply with the conditions in article 101(3) TFEU). In addition, section 30(1)(d) of the Act allows the Authority to publish notices giving practical guidance as to the operation of provisions of the Act. The Authority has published a notice and two declarations (each of which is available at www.tca.ie) applicable to vertical restraints, as follows:
Declaration in respect of vertical agreements and concerted practices (Decision No. D/10/001) (the Declaration); Notice in respect of vertical agreements and concerted practices (Decision No. N/10/001) (the Notice); and Declaration in respect of exclusive purchasing agreements for cylinder liquefied petroleum gas (Decision No. D/05/001) (the Cylinder LPG Declaration). The Notice and the Declaration were introduced by the Authority following a review of the Irish competition rules applicable to vertical agreements further to the introduction by the Commission of Regulation No. 330/2010 (the Vertical Block Exemption Regulation (VBER)).
The Notice provides practical guidance as to the application of the Act and the Declaration. The Notice expressly provides that reference may be made to the Commission's Guidelines on Vertical Restraints (the Commission Guidelines) for guidance as to whether an agreement is likely to fall outside of section 4(1) of the Act. However, two exceptions are noted in this regard. First, the exemption provided for in the VBER in respect of vertical agreements entered into by retailer buyer pools where no individual member (together with its connected undertakings) has an annual turnover in excess of50 million does not apply under the Declaration. In separate guidance (specifically, the Authority's notice on activities of trade associations and compliance with competition law, N/09/002 dated 9 November 2009) the Authority confirmed that it would follow the approach indicated by the Commission in its Guidelines on...