Complaints regarding alleged abuse of dominance are regularly made to the CCPC. The CCPC’s most recent annual report (for the period 1 January 2017 to 31 December 2017) states that the CCPC opened 26 new screening files and closed 29 screening files relating to potential civil breaches of competition law. Seven of the files reviewed by the CCPC related to an alleged abuse of dominance. The CCPC has not published any details of the files reviewed.
The public enforcement powers provided for in the Act have rarely been used in respect of abuse of dominance.
Thus far, there has been only one civil prosecution in respect of an alleged breach of section 5 (the ILCU case discussed at question 9) and this case was unsuccessful on appeal to the Supreme Court.
Thus far, there has been no criminal prosecution in respect of an alleged breach of section 5.
In recent years, section 5 investigations have most frequently resulted in negotiated settlements and the CCPC and ComReg published details of these investigations on its website in the form of ‘Enforcement Decisions’ or press releases.
In March 2015, the CCPC published a press release on a settlement concluding its investigation into an alleged abuse of dominance by the Glasnevin Trust, the largest provider of funeral and burial services in Ireland. The settlement terms included requirements to facilitate price transparency and to prevent price discrimination against customers who are also competitors.
In August 2014, the Competition Authority published a press release on a settlement concluding its investigation into an allegedly unlawful refusal to supply by a school uniform manufacturer. The settlement terms included a commitment to supply the complainant whom the manufacturer had originally refused to supply.
In October 2014, the Competition Authority published an ‘Enforcement Decision’ on its investigation of the compliance of certain discounts offered by the universal postal service provider, An Post, with the section 5 prohibition on unlawful ‘loyalty rebates’. The decision identified competition concerns regarding the discounts but stated that its investigation was closed because An Post had amended its discount procedures in a manner that addressed the CCPC’s concerns.
The above case involving An Post was the second recent investigation into allegedly unlawful ‘loyalty rebates’. In January 2012, the Competition Authority published an ‘Enforcement Decision’ in respect of its investigation into certain discounts offered by the national public service broadcaster, RTÉ. The decision identified competition concerns regarding the discounts and stated that its investigation was closed because RTÉ made a binding commitment to cease offering ‘share deal’ discounts that were conditional on a share of the advertiser’s television advertising budget being committed to RTÉ.
In early 2006 the Competition Authority published details of an investigation of a computerised reservation system (operated by Galileo Ireland) used by most travel agents in Ireland that resulted in a non-discriminatory manner (press release, 11 January 2006).
The courts have been asked to consider in a number of cases whether or not an abuse of a dominant position has occurred. Of the cases considered to date, damages have been found to be payable in only one case involving abuse of dominance (Donovan and others v Electricity Supply Board), where it was held that the defendant had abused its dominant position by imposing unfair trading conditions. In A&N Pharmacy v United Drug, an injunction was granted that obliged the defendants to continue trading with the plaintiffs pending the full hearing of that case. Both cases were taken under the predecessor to the Act, which contained a provision similar to section 5.
In Nurendale Limited (T/A Panda Waste Services) v Dublin City Council & Others the High Court heard a challenge by Panda Waste, a domestic waste collector, to a decision taken by the four local authorities responsible for Dublin City and County to introduce a ‘variation’ to their joint waste management plan for 2005 to 2010, which would permit each local authority to reserve to itself responsibility for waste collection services in areas in which that local authority had previously competed with private operators (subject to the right of each local authority to put waste collection services in any given area out to tender on an exclusive basis). Panda Waste alleged, inter alia, that this ‘variation’ amounted to an abuse of a dominant position (held either individually or collectively) by the local authorities, as it amounted to an unfair trading condition influencing or seeking to strengthen their position in the market for the collection of waste in the greater Dublin area in which competition had previously existed. In his judgment delivered on 21 December 2009, Mr Justice Liam McKechnie overturned the variation on the basis, inter alia, that each local authority was dominant in its respective area and that the local authorities were collectively dominant in the greater Dublin area in the market for the collection of household waste and that the ‘variation’ amounted to an abuse of a dominant position (held either individually or collectively) by the local authorities as it was an agreement in breach of section 4 of the Act (which prohibits anticompetitive agreements between undertakings), it would substantially influence the structure of the market to the detriment of competition and it would significantly strengthen the position of the local authorities on the market.
More recently, in Shannon LNG Ltd and Anor v Commission for Energy Regulation and others (mentioned at question 22), the High Court heard a judicial review challenge by Shannon LNG, an importer of liquefied natural gas (LNG), to a decision taken by the Commission for Energy Regulation (CER) relating to new methodologies for the calculation of tariffs relating to the use of and access to the transmission system and pipeline network for transport and delivery of natural gas in the Irish state-owned and operated by BGE. Among other claims, Shannon LNG claimed that the decision taken by the CER would enable or compel BGE to abuse the dominant position it occupied in the market in the Irish state for the transmission of natural gas contrary to article 102 of the Treaty as the contested decision would have the effect of applying charges for access to the onshore transmission system based on both the costs of operating and maintaining that system and the costs of the interconnectors, which the Shannon LNG would not be using. Shannon LNG also claimed a margin squeeze because the tariffs would have the effect of reducing the costs of using the interconnectors while increasing access costs at the other entry points to the transmission system, thereby making it economically more attractive for importers to use the interconnectors. Mr Justice John Cooke rejected Shannon LNG’s claims under article 102 of the Treaty as premature, as the actual tariffs had not yet been set and no entry or exit charges had been calculated. Mr Justice Cooke stated that some level of cross-subsidisation within the transmission system was likely inevitable. The judge also found that the margin squeeze claim was unfounded as it was not possible to identify separate defined markets for the provision of services for transport of gas to Ireland, and a market for transmission services onshore within the state.
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