BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. Notification was made on 4 May 1992 with a request for a certificate under Section 4(4) of the Competition Act, 1991 or, in the event of a refusal by the Competition Authority to grant a certificate, a licence under Section 4(2) in respect of an agreement between ESB Industrial Holdings Ltd and Irish Cement Ltd. Notice of intention to issue a certificate was published in the Irish Times on 13 January 1995. No submission was received by the Authority from any third party.

2. The notification concerns a long term agreement dated 16 April 1992 between ESB Industrial Holdings Ltd (ESBIH) and Irish Cement Ltd (ICL) in relation to the sale of Pulverised Fuel Ash (PFA) by ESBIH to ICL.

3. ESB Industrial Holdings Ltd (ESBIH) is a wholly owned subsidiary of the State owned Electricity Supply Board (ESB). The ESBIH is the industrial holding company for the ESB's investments in manufacturing industry and construction companies. The ESBIH is also the operating company for the sale of the ESB's by-products and responsible for licensing and leasing of ESB's assets to other companies i.e. including the provision of know-how, expertise, staff etc for international engineering contracts. The turnover of the ESBIH for the year ended 31 December 1993 was £4.5 million.

4. ICL is a wholly owned subsidiary of CRH plc and is engaged in the production of cement at plants at Mungret, Co. Limerick and Platin, Co. Meath. ICL is the sole manufacturer of cement in the State with an output of 1.5 million tonnes in 1993 of which 1.15 million tonnes was sold within the State and a further 150,000 tonnes exported to Northern Ireland. The turnover for ICL for the year ended 31 December 1993 was £85 million.

5. The product involved in the ESBIH/ICL agreement is raw Pulverised Fuel Ash (PFA) of variable quality. Raw PFA is the low value residual waste material which arises from the consumption of coal for electricity generation in coal fired power stations. Following the commissioning of the Moneypoint power station in Co. Clare in the early 1980's, the ESB became a major consumer of coal for electricity generation purposes. This coal consumption, at an annual rate of 2m tonnes, led to the production of large quantities of PFA which was dumped. It was realised by the ESB that the raw PFA had potential economic value for the cement/concrete industry if it was processed and certified as conforming to the standards required by the building industry. While raw PFA is the subject of the notified agreement, the agreement also has some significance to the processing/certification of PFA and subsequently its sale as a constituent of cement and other building materials.

6. PFA is a glassy material whose main constituents are silica, alumina and iron. As coal ash its qualities vary with the type of coal consumed. When processed it is similar in appearance to Portland cement but unlike cement it does not set and harden by means of a chemical reaction with water. However, when PFA is mixed with lime/mortar and water it may have similar cementing properties to Portland cement. PFA can, therefore, be used to replace cement to some extent and will give equivalent cement properties. It is therefore useful for bulk cement users and in blending cements to meet varying performance requirements. It can also be used in bagged cement production and in the manufacture of grout.

7. Raw PFA in quantity is produced at only one location in the State, i.e. the ESB's coal burning generating station at Moneypoint where annual production is 160,000 tonnes of PFA of varying quality. According to ESBIH there were virtually no sales of raw PFA in the State before 1987. Between 1987 and 1989 small quantities of raw PFA were sold by ESBIH at a nominal price to ICL and to various independent concrete manufacturers. In January 1989 ESB/ESBIH stated that they had written to 25 companies in Ireland, the UK and the US requesting proposals for the purchase of PFA from Moneypoint which the ESB/ESBIH recognised as having substantial commercial value. Proposals were received from Irish Cement Ltd, Independent Concrete Manufacturers' Association, Spollen Concrete, Readymix plc, J.A. Wood Ltd, Tarmac Topmix and Pozament/Whelan Bros. The ESB/ESBIH had discussions with all the parties and negotiations were pursued to a conclusion with Irish Cement Ltd (ICL). According to the preamble to the notified agreement, the ESB had disposed of some 750,000 tonnes of raw PFA as landfill by April 1992, as efforts to sell it at nominal prices had met with limited success. While ESB is the only producer of PFA in the State it has been argued that PFA could be imported economically by industrial consumers, particularly those on the Eastern Seaboard, from Northern Ireland or from coastal UK power stations because the shipping costs incurred would be offset by the high road transport costs associated with offtakes from Moneypoint. PFA is not an essential ingredient of cement or concrete and there are no indications of PFA being imported into the State.

8. The raw PFA sold by ESBIH is processed by ICL at its Limerick plant and certified that it satisfies BS standards. The processed/certified PFA can be used as an additive to portland cement, for the manufacture of blended cement products and grout products and in the construction industry as a component in structural concrete and concrete blocks. Exacting technical requirements must be complied with before the processed/certified PFA can be used in the construction industry e.g. BS 3892 (Part 1), BS 3892 (Part 2), IS 1, IS 5 and IS 326. It was stated that the key to developing a significant market for the sale of processed/certified PFA involves establishing the technical credibility of products containing PFA. This requires appropriate processing facilities, quality control resources and the development of an extensive technical marketing programme. According to ICL their production plant at Limerick now conforms to ISO 9000 for the processing and certification of PFA. The Authority has been informed that ICL has fitted new installations costing £1.5m to deal with the processing of PFA and that existing equipment at the Limerick plant valued at £3m is being used by ICL in connection with PFA processing. Further investments by ICL in separator processing equipment amounting to £1.5m are planned. Apart from its use in cement production, the Independent Concrete Manufacturers Association estimated that their demand for high quality PFA certified to the BS standard could be in the region of 50,000 tonnes annually. According to ICL their sales of processed PFA to third parties in 1993 amounted to 854 tonnes.

9. In practice the principal economic value of PFA relates to its incorporation in processed form in the manufacture of cement by ICL, the sole manufacturer of cement within the State. The market for cement within the State in 1993 was estimated at 1.4 million tonnes of which ICL supplied 1.15m tonnes with the balance supplied by imports. The cement market is divided into two separate and distinct markets namely bulk cement and bagged cement. Bulk cement is supplied to manufacturers of readymixed concrete, concrete blocks and all other types of concrete products. The bulk cement market comprises 75% of the total cement market. Bagged cement is supplied to the merchant /hardware trade in 50kg bags and is sold on to builders and the public at large through numerous retail outlets. Bagged cement accounts for 25% of the cement market. ICL has claimed that both sections of the home market for cement are very competitive with purchasers able to change suppliers without any difficulty. As an indication of the competitiveness of the cement market ICL stated that price increases had been insignificant in recent years and that their main competitor (Sean Quinn) sold cement at cheaper prices than ICL. Other importers also sold cement at cheaper prices than ICL.

10. On 30 November 1994 the EU Commission decided that 42 European cement producers and associations, including ICL, had infringed Article 85(1) of the EC Treaty in relation to their participation in an agreement designed to ensure non-transhipment to home markets and to regulate cement transfers from one country to another, agreements on the exchange of price information and participating in concerted practices. A fine of ECU 3.542m was imposed on ICL. ICL has stated that it proposes to appeal the Commission decision to the European Court.

11. The other main use for processed/certified PFA is in the manufacture of concrete and concrete products. Construction products with PFA compete essentially in the same markets as construction products without PFA according to ICL. They are in reality substitute products in the same market. The PFA products have some advantages i.e. increased long term strength, increased durability under certain conditions but they have also some disadvantages e.g. increased susceptibility to poor curing, increased risk of colour variation. Prior to the notified agreement very little PFA was incorporated in these products and PFA is not an essential ingredient. According to ICL, it sells the certified PFA product (which includes processed PFA and end products incorporating PFA) on the same terms and conditions, including price, to all purchasers. ICL also claimed that no differentiation is made between associated companies of ICL and other customers.

12. (i) The notified Sale and Purchase agreement was made on 16 April 1992 between ESBIH as seller and ICL as purchaser. The agreement is made in the light of the difficulties arising for the ESB in the disposal of PFA as landfill and the proposal by ICL to establish a processing facility to produce processed PFA and thereby certify it as conforming to certain BS standards relating to its sale as a secondary cementitious material for onward sale to the concrete industry and as a replacement for cement clinker and also to certify it for special purposes for use as an additive in the brick and asbestos cement industries. The buyer proposes to use PFA, and thereby reduce energy consumption, in the manufacture of new blended cements and add the remainder of processed ash in the initial stages of cement production.

(ii) Unless terminated for specific reasons the agreement operates for 10 years from 1 January 1992 to 31 December 2001 and continues indefinitely thereafter unless terminated by either party on 90 days notice. Both parties recognise that the raw PFA produced at Moneypoint is an unprocessed material whose quality varies in the short, medium and long-term depending on certain factors. Nevertheless, ESBIH agrees to provide sufficient quantities of raw PFA to ICL to enable it to supply its markets for PFA products. The buyer is solely responsible for procedures to ensure the integrity of PFA in its end use application and no product liability will be implied to either the seller or the ESB.

(iii) Under clause 3.3 ICL contracts to take minimum quantities of raw PFA each year. ICL may purchase additional quantities subject to adequate quality being available. The price per tonne agreed is graduated downwards as certain volumes are achieved and will be adjusted annually by reference to cement price movements. A rebate is payable to ICL for PFA sold by ESBIH which cannot be upgraded/certified, with the quality level at which rebates occur each year being subject to annual negotiations having regard to price levels for raw PFA and ICL processing facilities at Mungret.

(iv) Under Clause 5.1 ICL undertakes to make minimum annual payments to ESBIH even if the amount delivered would not warrant such payments. There is provision for agreement on a quarterly basis of delivery requirements and ESBIH "shall use all reasonable endeavours to have sufficient stocks of PFA to fulfil its obligations.....however it shall have no liability to the Buyer (ICL) if it is unable to fulfil such obligations".

(v) Clause 7 relates to the transport of PFA from Moneypoint and states that ICL "where possible shall also ensure reasonable local involvement in transport through sub-contract arrangements". Disputes regarding quantity or quality are to be settled by designated officers of each company.

13. The ESBIH and ICL submitted that the arrangements did not have the object or effect of preventing, restricting or distorting competition in the State or in any part of the State in respect of either PFA or cement. According to the ESBIH its purpose in entering into the agreement with ICL was:

(1) to achieve a guaranteed flow of revenues which would effectively reduce its operating costs at Moneypoint; and

(2) to significantly reduce the dumping of the by-products of the production process at Moneypoint both for environmental and cost reasons.

According to ICL its purpose in entering into the agreement with ESBIH was:

(1) to obtain a source of raw material for cement manufacture which would prolong the life of its existing reserves of materials which it would normally use;

(2) to guarantee a long term source of supply of the raw material (raw PFA) because of its commitment of resources, investment and effort in processing, developing, certifying, distributing and marketing a range of PFA products;

(3) to reduce the emission of gases from its production processes by the ability to add PFA to the processed raw material;

(4) to improve the quality of its products;

(5) to offer the Irish cement consumer differentiated products for different purposes.

14. ESBIH confirmed it was willing to sell PFA on the terms in the notified agreement, or on terms which were not dissimilar to those in the notified agreement, provided the product was available, to any other party. Except for sales to ICL, the market for uncertified PFA over the years before the agreement came into force had been negligible, even though it was being sold at nominal prices by ESBIH.

15. ICL confirmed that it was their policy to offer its customers who were not subsidiaries of CRH the same commercial terms as the subsidiaries of CRH. This policy was applied to sales of certified PFA and products containing PFA according to Irish Cement Ltd. ICL claimed that it had similar cement prices and supply conditions for similar transactions; pricing policy for PFA products was on the same basis.

16. The ESBIH also confirmed that it had considered the possibility of the ESB/ESBIH establishing a PFA processing and certification plant at Moneypoint but it had rejected the proposal because:

(1) the uncertainty of demand for certified PFA made the project returns on such an investment unattractive;

(2) the cost of operating a processing and certification plant at Moneypoint would be high (as it would have to be independent of the power station operations which were naturally focused on producing power);

(3) Moneypoint was an unattractive distribution centre due to its location.

17. ESBIH stated that the ESB had made a very substantial investment, in excess of £5.5m in providing a dry ash handling system and tanker loading facilities at Moneypoint exclusively for the PFA operation.

18. The Construction Industry Federation (CIF) made a submission to the Authority on behalf of the Independent Concrete Manufacturers Association (which is a constituent association of the CIF) and also on behalf of the Construction Industry. The CIF strongly objected to the notified agreement primarily because of the dominant position of both parties involved (ESB and Irish Cement). The CIF also maintained that the notified agreement had potential damaging effects for the concrete products sector in Ireland because the agreement allowed Irish Cement to purchase PFA from the ESB before sale to the concrete products sector.

19. The submission stated that "in 1983 the Independent Concrete Manufacturers Association approached the ESB with a view to the purchase of PFA from the Moneypoint Power Station in Co. Clare. The value of PFA to the construction industry and to the concrete products market in particular, if freely available and realistically priced, can be quite significant in that any where between 30% and 50% of PFA can be used as a cementitious material in the production of certain concrete and concrete products. This product provides certain technical advantages in the use of certain types of concrete and on some high strength construction work can be part of the Consulting Engineer's specification. It is also known to have advantageous properties in the use of concrete for the agricultural industry. Consequently, the Association welcomed the decision by the ESB to publicly seek tenders for the purchase of approximately 200,000 tonnes of PFA on 25 January 1989. The Association's response spelled out clearly the Association's and the Industry's position with regard to ensuring that PFA should go on sale to the Industry in an open and unconfined manner and that everything possible should be done to prevent this from getting into the hands of a cement manufacturer. The Independent Concrete Manufacturers Association estimated in 1989 that there would be ample demand for a high quality certified product when it became available. From the outset the Association's and the Industry's policy had been clear and consistent - the ESB should go it alone exclusively by processing, certifying and marketing the PFA directly to the Industry. The group purchasing requirements of the Association was approximately 260,000 tonnes of cement. Assuming that the level of demand was retained, that price and transport costs were competitive, it was not unreasonable to expect that the Association's requirements would be somewhere in the region of 50,000 tonnes of high quality PFA satisfying British Standard 3892 Part 1. While respecting the ESB's right to decide on how the PFA should be disposed of commercially, the Association and the Industry were opposed to any facility which would allow a cement manufacturer the opportunity to blend PFA at source, which could have the effect of restricting the maximum usage of PFA overall, and which would certainly restrict and remove at least some of the options from the concrete manufacturers at their manufacturing plants. The ESB did not respond in a positive manner to the Association's 1989 proposals despite numerous contacts with the ESB and a visit to Moneypoint to view the facilities and loading and recovery facilities there by almost forty members of CIF."

20. According to the CIF between January 1989 and April 1992 "a number of CIF members were purchasing PFA from the ESB for use and testing in their products in preparation for eventual contractual arrangements with the ESB. In May 1992 a number of CIF members were advised that consequent on an agreement between the ESB and Irish Cement that existing arrangements would cease and that an exclusive arrangement had been entered into with Irish Cement for the sale of PFA, and that further enquiries would have to be made with Irish Cement Ltd. Subsequent discussions with both ESB and Irish Cement have resulted in neither party being open nor very revealing concerning the conditions of their contractual agreement, other than to state that PFA would be available from Irish Cement certified to BS 3892 Part 1, price would be in the range of approximately £25 per tonne, 50,000 tonnes would be available in the first year but might be restricted to Irish Cement customers only. There was no indication of the length of the agreement between Irish Cement and the ESB, or if any other third party would get an opportunity to tender for this in the foreseeable future. If these were the conditions of the contractual arrangements entered into, then CIF must state that they are totally unacceptable, not just to the Independent Concrete Manufacturers Association and its customers, but also to the Construction Industry Federation and the industry in its broadest sense. Given the past record of CRH, through both its cement and concrete products companies, the industry has every reason to be concerned at the possible abuse of its advantaged position and its apparent monopoly control of this important product. Consequently CIF submit that any contractual arrangements entered into between the ESB and Irish Cement should contain the following safeguards:

1. That any customer should have the opportunity to purchase PFA from either the ESB or Irish Cement Ltd, certified or otherwise, as and when required at a realistic price.

2. That Irish Cement and the ESB should be prevented from entering into an exclusive agreement which would restrict the availability of PFA from either to the open market. We believe that this is part of the existing agreement which is totally unacceptable to us.

3. That the industry in its broadest sense should have the same opportunity as Irish Cement to tender for the product on the open market on a yearly basis.

4. We submit that there is no logical or valid reason why Irish Cement should purchase a product which to all intent and purposes is a competitive product, other than to take it off the market, prevent it getting into the hands of either its competitors or its customers, and consequently control price and availability on the open market. This we submit must not be allowed to happen through any agreement.

5. That Association members or any other potential customer in the industry should be free to continue to purchase PFA from the ESB as heretofore.

Assessment

21. Section 4(1) of the Competition Act 1991 prohibits and renders void all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State, or in any part of the State.

22. Section 3(1) of the Competition Act defines an undertaking as " a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service".

23. ESBIH is a wholly owned subsidiary of the ESB which is engaged for gain in a number of activities which are not related to the ESB's primary function of generating electricity, eg. it is the operating company for the sale of the ESB's by-products and is an undertaking. ICL is a wholly owned subsidiary of CRH and is engaged for gain in the production of cement and is also an undertaking. The notified agreement is an agreement between undertakings. The agreement has effect within the State.

24. Under the notified agreement the producer of a residual material, raw PFA, which had hitherto been disposed of as industrial waste and used for landfill, has, through a subsidiary, entered into a long term supply contract for the sale of the product in large bulk to a relatively nearby manufacturer for processing both for incorporation in its own products and for onward sale. Both parties benefit from the commercialisation of the product. The ESB is relieved from the cost and environmental problems involved in the disposal of the sold product as waste while generating revenue from its sale as an industrial material. ICL benefits from access to new material for incorporation in its basic products as well as from energy savings in its use. It is a commercial agreement between two major industrial companies involving a low value bulk commodity where transport economies apply because of the relative nearness of the companies to one another.

(i) Raw PFA

25. In this instance both parties to the agreement are the dominant producers in their particular product sector. The ESB is the State monopoly electricity distributor while ICL is the sole cement manufacturer in the State with 80% of the domestic market for cement. The Authority does not regard supply contracts, per se , between companies dominant in their particular sectors as offending against Section 4(1) of the Competition Act unless the arrangements have the object or effect of the prevention, restriction or distortion of competition in trade in any goods or services within the State.

26. The Authority does not believe that the object of the agreement is to prevent, restrict or distort competition. Prior to the agreement the product involved, raw PFA, was not a traded product. Apart from small quantities provided to third parties for testing purposes since 1989, it had no real commercial value and was dumped as waste with 750,000 tonnes utilised as landfill up to 1991. The object of ESB in entering the agreement was to find an alternative other than dumping for disposal of as much as possible of the 160,000 tonnes of raw PFA generated annually. As a low value product, this must entail disposal in large bulk because disposal in small lots would involve substantial administration costs and not meet the objective of providing any assurance of a significant substitution for disposal by landfill. The object of ICL in the agreement was access to a raw material which would lead to savings in production costs. PFA is not an essential ingredient for cement production, nor is it a full alternative for cement.

27. In assessing the effect of the agreement on the market for the supply of raw PFA for other users, the Authority must have regard to the fact that, prior to the agreement, sales of raw PFA to other users were negligible with virtually all raw PFA produced dumped as landfill. ESB has indicated an annual availability of around 160,000 tonnes of raw PFA of varying quality with 80,000 tonnes committed to ICL under the agreement. Consequently, the quantities contracted for by ICL under the agreement represent only 50% of annual availability. ICL may take quantities in excess of this subject to quality but is not committed by contract to doing so. This could leave substantial quantities for other customers if any were to come forward. ESBIH has stated that it is willing to sell raw PFA to any party on terms similar to those in the notified agreement subject to availability of product. However, since most of the main concrete users are based on the Eastern seaboard the likelihood is that transport costs would be much greater for them compared to ICL's Mungret processing plant. The notified agreement therefore does not prevent parties other than ICL from obtaining supplies of raw PFA from Moneypoint or from other sources. As pointed out earlier, PFA can be obtained from power stations in the UK and transport costs do not constitute an impediment to such imports. There is nothing in the agreement which would prevent the establishment of a competing PFA processing plant.

28. Neither does the Authority consider that the duration of the supply contract, which runs for a minimum of 10 years, has the object of preventing, restricting or distorting competition. The project, involving the large scale commercialisation of the PFA product, requires substantial capital investment by both parties. The ESB has undertaken a substantial investment in connection with the sale of raw PFA by providing a dry ash handling system and tanker loading facilities at Moneypoint with £5.5m invested in these facilities. ICL is providing an investment of £6m at its Mungret plant in facilities for the large scale processing and certification of raw PFA and in the production of new products incorporating processed PFA. Since PFA is a new product with only one local source of supply and only one local large scale processor, the Authority does not believe that either party to the agreement would commit the capital resources to the project without long term assurances regarding supply and purchase of the product.

(ii) Processed PFA

29. It would appear to the Authority, however, that in reality, ICL is the only party who wants the raw PFA because the other potential users of PFA require product which has been processed and certified. ICL is the only company at present capable of providing such a service. ICL has confirmed that it was its policy to offer customers, who are not subsidiaries of CRH, the same commercial terms as were given to the subsidiaries of CRH. This policy was applied to sales of processed/certified PFA and to products containing PFA, according to ICL. The notified agreement does not prevent any interested party from purchasing the processed/certified PFA or the downstream products (i.e. those containing PFA) from ICL or from any other source.

30. The CIF submission indicated a possible annual demand from the concrete industry for 50,000 tonnes of PFA, but this related to processed and certified PFA. It is not clear to the Authority whether there would be any significant demand for raw uncertified PFA of varying quality. The concrete manufacturers' clear and consistent policy has been that the ESB should go it alone to process, certify and market the product themselves, while everything possible should be done to prevent it getting into the hands of a cement manufacturer. The decision by the ESB to decline such an involvement was a matter for its own commercial and strategic judgement and does not raise any issues under the Competition Act. The Authority has not been made aware of any other potential large scale user of raw PFA in the State or whether any other undertaking was prepared to establish the processing and certification facilities to duly process and certify raw PFA other than ICL. It would appear to the Authority therefore that, in the absence of the notified agreement, there would be no large outlet for the bulk supplies of raw PFA resulting, as had occurred up to 1992, in large scale dumping of the product as landfill.

31. In considering the effects of the agreement on competition the Authority has carefully considered the submission made by the CIF. The CIF strongly objected to the notified agreement because of the dominant position of both ESB and ICL in their respective market sectors and referred to the potential damaging effects to the Irish concrete industry because ICL was allowed to purchase PFA from ESB before sale to the concrete products sector. In talks with ESB they indicated that there would be ample demand for high quality certified PFA from the industry and had sought that PFA should go on sale in an open and unconfined manner with everything possible being done to prevent PFA getting into the hands of a cement manufacturer. They stated that the industry's policy in relation to PFA had been clear and consistent - the ESB should go it alone exclusively by processing, certifying and marketing the PFA directly to the industry. Among the safeguards requested in the CIF submission were that any customer should have the opportunity to purchase PFA, certified or otherwise, as and when required from ESB or ICL at a realistic price, that ICL and ESB should be prevented from entering into an exclusive agreement which would restrict the availability from either on the open market, that the broad industry should have the opportunity to tender for PFA on the open market on a yearly basis and that third parties should be free to continue purchases from ESB as heretofore. In the Authority's opinion, the agreement will not prevent any party from purchasing raw PFA from the ESB or from any other source. While ICL will be the only domestic producer of processed PFA, this is not because of the agreement, but because it is the only party willing to engage in the processing of raw PFA. The agreement will not prevent anyone from obtaining processed PFA from an overseas source. In the Authority's view, all of the safeguards requested by the CIF are met.

32. In the CIF submission, reference is made to the concrete industry's position on the supply of PFA, i.e. that PFA should go on sale in an open and unconfined manner and that everything possible should be done to prevent this from getting into the hands of a cement manufacturer. In the Authority's opinion the available evidence would suggest that ICL is the only company prepared to undertake purchasing and processing of PFA on a large scale basis and measures to prevent their access to the material could themselves offend against the Competition Act.

(iii) End Products

33. The notified agreement does not affect competition in the cement market. There is only one domestic producer of cement in the State and, while the use of PFA as an ingredient provides production economies and enables the production of specialist cements, it is not essential for cement production. The availability of cement on the domestic market is not affected by the agreement.

34. In its submission the CIF referred to ICL's dominant position in the Irish cement market. However, in recent years there has been a reduction in ICL's market share, with imports increasing from 65,000 tonnes in 1985 to 329,000 tonnes in 1992 or 22% of the Irish market. In its recent investigation into anti-competitive practices in the European cement industry, the EU Commission argued that it was economically viable to supply the Irish market from other EU countries by sea. In its recent decision the EU Commission found that ICL were engaged in arrangements to prevent imports of cement. However the present arrangement regarding the supply of PFA must be considered on its own merits.

35. In the Authority's opinion, ESB Industrial Holdings Ltd and Irish Cement Limited are undertakings within the meaning of Section 3(1) of the Competition Act, 1991 and the notified agreement is an agreement between undertakings. In the Authority's opinion, the notified agreement does not have the object or effect of preventing, restricting or distorting competition and thus does not offend against Section 4(1) of the Competition Act, 1991.

The Certificate

36. The Competition Authority has issued the following certificate:

The Competition Authority certifies that, in its opinion , on the basis of the facts in its possession, the Sale and Purchase Agreement between ESB Industrial Holdings Ltd and Irish Cement Ltd notified under Section 7 of the Competition Act on 4 May 1992 (notification no. CA/21/92) does not offend against Section 4(1) of the Competition Act, 1991.