The Use by Irish Courts of Eu Jurisprudence to Resolve Conflicts Between National Competition Law and Regulation: Panda Waste

Introduction:

"On 21 December 2009 an Irish High Court judgment found that a regulatory proposal, the Variation, by the four Dublin local authorities (“the local authorities”) to move from competition-in-the-market (or side-by-side competition) for household waste collection to a single operator, irrespective of whether selected through competitive tendering (ie competition-for-the-market) or by the local authority simply reserving the collection function to itself, was a breach of national competition law. The Panda judgment, if sustained on appeal to the Supreme Court, is a verdict of considerable importance for competition law jurists both in Ireland and abroad. In the High Court judgment, local authorities are held to be “undertakings” and local authority policy decisions therefore to be susceptible to review and prohibition under national competition rules. Thus, national rules prohibiting abuse of dominance and anticompetitive agreements are effectively relied upon to prevent local authorities implementing what the High Court took to be anticompetitive policies."

"Section B describes the Variation, particularly its legal context, in more detail. Section C addresses the issue of whether or not the local authorities in exercising regulatory functions under the Waste Management Acts, 1996–2007 (“WMA”) in making the Variation are undertakings for the purposes of competition law and hence subject to competition law. Section D considers the issue of market definition. The next three sections deal with whether or not the Variation breaches competition law by reference to whether it is an anticompetitive agreement (Section E) or whether the local authorities are dominant—both individually and collectively (Section F) and whether or not there is an abuse of a dominant position (Section G). The paper is completed with several conclusions and observations in Section H."