The Competition (Amendment) Act 2012 ("the 2012 Act") came into effect on 3 July 2012. The measures contained in the 2012 Act aim to meet Irish commitments in the EU/IMF Financial Assistance Programme of 28 April 2011 and to aid the Competition Authority ("the Authority") in both the investigation and prosecution of anti-competitive practices. The provisions also aim to enhance private enforcement.
The proposed new legislation was highlighted in our autumn 2011 newsflash1, however the 2012 Act contains some additional, and in some cases innovative, provisions to strengthen both public and private competition law enforcement.
The new provisions have the potential to advance both the public and private enforcement regime. As the summary table shows, not only has the severity and range of sanctions available to Courts increased, the 2012 Act also includes some novel provisions in relation to settlement arrangements between the Authority and parties, follow-on actions, and the imposition of orders for costs.
Authority investigations resulting in a settlement between the parties under investigation and the Authority are currently often published on the Authority's website at the end of the investigation. This settlement will have been reached in order to avoid litigation. New provisions in the 2012 Act will now allow the High Court, upon application by the Authority, to make commitments provided to the Authority to be made an order of Court. Certain criteria must be met, which include:
Consent to the making of the order Legal advice having been obtained by the party in advance of consent The agreement is clear and unambiguous and is capable of being complied with The undertaking is aware that failure to comply with the order would result in contempt of court. Before applying to the court, the Authority must publish the terms of the agreement and information regarding the application on its website and in at least two daily newspapers circulating throughout Ireland. The order may be varied or annulled on application by a person within 45 days from the making of the order if the order would force the person giving the undertaking to breach a contract with the applicant or would render a term incapable of performance. No order will be made by the High Court to vary or annul an order if the contract or term of the contract...