Competition Act 2002

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Competition Act, 2002.

2. Commencement.

2.—This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

3. Interpretation.

3.—(1) In this Act, unless the context otherwise requires—

F1[“Act of 2002”means the Communications Regulation Act 2002;]

F2[“Act of 2009”means theBroadcasting Act 2009;]

F1[“Act of 2014”means the Competition and Consumer Protection Act 2014;

“administrative sanctions”means the following sanctions imposed by an adjudication officer underPart 2D—

(a) structural or behavioural remedies,

(b) administrative financial sanctions undersection 15AA, or

(c) periodic penalty payments,

and "administrative sanctions proceedings" shall be interpreted accordingly;

"Article 16(1) periodic penalty payment" has the meaning assigned to it insection 15AD;

“Article 16(2) periodic penalty payment”has the meaning assigned to it insection 15AD;]

F3[“associated facilities”, in relation to an electronic communications undertaking, has the same meaning as in section 2(1) of theCommunications Regulation Act 2002(No. 20 of 2002);]

F4[“authorised officer”—

(a) in relation to the functions performed by the Competition and Consumer Protection Commission, has the same meaning as it has in the Act of 2014, and

(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning it has in section 39 of the Act of 2002;]

“Authority” means the Competition Authority continued in being by section 29;

F6[…]

F1[“breach of a procedural requirement”refers to any of the following contraventions by an undertaking, or by an association of undertakings, of an obligation or requirement imposed by a competent authority in connection with an investigation underPart 2C:

(a) obstructing or impeding the exercise by—

(i) an authorised officer, within the meaning of the Act of 2014, of a power referred to in section 37 or 37A of that Act, or

(ii) an authorised officer, within the meaning of the Act of 2002, of a power referred to in section 39 or 39A of that Act;

(b) breaking a seal affixed by an authorised officer, within the meaning of the Act of 2002 or the Act of 2014, as the case may be, or other accompanying person authorised or appointed by the competent authority, for the purpose of securing any document, record, data equipment, computer or place referred to in—

(i) section 37(2)(c) of the Act of 2014, or

(ii) section 39(3B)(c) of the Act of 2002;

(c) giving a false or misleading answer, failing to answer without reasonable excuse, refusing to provide a complete answer to, or otherwise failing to comply with, a requirement referred to in—

(i) section 37(2) of the Act of 2014, or

(ii) section 39(3B) of the Act of 2002;

(d) providing false, incomplete or misleading information, or failing, without reasonable excuse, to supply information, including books, documents and records, in the power or control of the undertaking or association of undertakings within the time limit specified by the competent authority—

(i) in response to an examination, requirement or notice referred to in paragraph (b), (c) or (d) of section 18(1) or section 37A of the Act of 2014, or

(ii) in response to a requirement under section 38A of the Act of 2002;

(e) failing without reasonable excuse to attend before the competent authority in response to—

(i) a summons referred to in section 18(1)(a) of the Act of 2014,

(ii) a requirement referred to in section 37A of the Act of 2014, or

(iii) a requirement under section 38A of the Act of 2002;

“bid-rigging”has the meaning assigned to it bysection 4;

“cartel”means an agreement or concerted practice between two or more competing undertakings aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices including the following:

(a) the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights;

(b) the allocation of production or sales quotas;

(c) the sharing of markets;

(d) the sharing of customers;

(e) bid-rigging;

(f) restrictions of imports or exports;

(g) anti-competitive actions against other competing undertakings;

“commercially sensitive information”means information the disclosure of which could reasonably be expected to—

(a) substantially and materially prejudice or harm the commercial, financial or industrial interests of the undertaking or person to which it relates,

(b) substantially prejudice or harm any other interests of a person in the conduct of the person’s business, profession or occupation, or

(c) substantially prejudice or harm the interests of the State or a public body (within the meaning ofsection 28N(5));]

F3[F5[“Commission”means the Competition and Consumer Protection Commission;]

“competent authority”—

(a) except as provided by paragraph (b), means the Competition Authority, and

(b) if the Competition Authority and theF5[Commission for Communications Regulation]have, undersection 47E, agreed that theF5[Commission for Communications Regulation]should, in relation to a particular matter, perform the functions conferred on the relevant authority byPart 2, or the Minister has made a determination under that section that theF5[Commission for Communications Regulation]should exercise those functions in relation to that matter, also means theF5[Commission for Communications Regulation];

“Competition Authority”means the Authority continued by section 29;]

“conditional determination” shall be construed in accordance with section 22;

“contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly;

“Council” means the Council of the European Communities;

F2[“Council Regulation”means Council Regulation (EC) No. 139/2004 of 20 January 2004^1on the control of concentrations between undertakings;]

“court”, where used without qualification, means the District Court, the Circuit Court or the High Court as appropriate, or, in the case of an appeal, the Circuit Court, the High Court or the Supreme Court as appropriate;

F1[“Directive”means Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018^2to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market;]

“director” includes a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but does not include such a person if the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity;

F3[F5[“electronic communications network”has the same meaning as it has in the Act of 2009;]

“electronic communications service”has the same meaning as insection 2of theCommunications Regulation Act 2002;

“electronic communications undertaking”means an undertaking that provides an electronic communications network or an electronic communications service or associated facilities;]

F1[“enforcement proceedings”means proceedings before an adjudication officer or court for the application of relevant competition law, but does not include proceedings—

(a) that are closed by the competent authority under this Act,

(b) in relation to which the competent authority has concluded that there are no grounds for further action, or

(c) in relation to which the European Commission has made a decision under Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002^3on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

“functions” includes powers and duties and a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of the powers and the carrying out of the duties;

F1[“hearing requirement”means a requirement imposed by an adjudication officer on an undertaking or association of undertakings undersection 15Vor15W;

“hearing requirement periodic penalty payment”has the meaning assigned to it insection 15AD;]

“Minister” means the Minister for Enterprise, Trade and Employment;

F1[“notified undertaking”means an undertaking, or an association of undertakings, as the case may be, to which a prohibition notice has been issued;

“periodic penalty payment”has the meaning assigned to it bysection 15ADand, where used without qualification, includes an Article 16(1) periodic penalty payment, an Article 16(2) periodic penalty payment and a hearing requirement periodic penalty payment;]

“prescribed” means prescribed by regulations made by the Minister under this Act;

F1[“prohibition notice”has the meaning assigned to it bysection 15H;]

“publish”, in relation to a matter, includes to place a notice in relation to it in a national newspaper and to post a notice in relation to it on a website maintained by the Authority, any Minister of the Government or a statutory body;

F1[“relevant competition law”means any of the following provisions:

(a)section 4;

(b)section 5;

(c) Article 101 of the Treaty on the Functioning of the European Union;

(d) Article 102 of the Treaty on the Functioning of the European Union;

“relevant Minister”shall be interpreted in accordance withsection 52(3);

“relevant recipient”, in relation to a statement of objections, means an undertaking or an association of undertakings, as the case may be, on which the statement of objections has been served;

“settlement submission”means a submission by, or on behalf of, an undertaking to a competent authority—

(a) describing the undertaking’s acknowledgement of, or renouncing any right of the undertaking to dispute its participation in, an infringement of relevant competition law and its responsibility for that infringement, and

(b) made for the purpose of requesting that the competent authority make a referral, in relation to that infringement, referred to insection 15L(5)(d);

“structural or behavioural remedy”has the meaning assigned to it bysection 15Z;]

“statutory body” means a person specified in column (1) of Schedule 1;

“Treaty” means the Treaty establishing the European Community;

F5[“undertaking”means 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 and, where the context so admits, shall include an association of undertakings.]

(2) In this Act references, however expressed, to an agreement being concluded in respect of a merger or acquisition shall be construed as including references to an agreement (of whatever kind and whether expressed to be in respect of a merger or acquisition or not) being entered into the result of which will, if the agreement is implemented, be that a merger or acquisition occurs.

(3) Where—

(a) proof of any matter is, by any provision of this Act, placed on the defendant in the proceedings concerned it shall be sufficient, for the purposes of that provision, for the defendant to prove the matter on the balance of probabilities,

(b) any provision of this Act provides that any specified matter or matters is or are presumed to be fact unless the contrary is shown (as distinct from being presumed to be fact unless or until the contrary is proved) the provision shall be construed as placing on the defendant in the proceedings concerned an evidential burden only with respect to the matter or matters.

(4) In this Act references, however expressed, to an act that is done with the consent of a person shall be construed as including references to an act that is done with the connivance of a person.

(5) In this Act a reference to a section or Schedule is a reference to a section of, or Schedule to, this Act, unless it is indicated that a reference to some other provision is intended.

(6) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to another provision is intended.

(7) In this Act a reference to any other enactment shall be construed as a reference to that enactment as amended, extended or adapted by or under any subsequent enactment (including this Act).

PART 2 Competition Rules and Enforcement

4. Anti-competitive agreements, decisions and concerted practices.

4.—(1) Subject to the provisions of this section, 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 are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which—

(a) directly or indirectly fix purchase or selling prices or any other trading conditions,

(b) limit or control production, markets, technical development or investment,

(c) share markets or sources of supply,

(d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage,

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the F7[subject of such contracts, or]

F8[(f) are concerned with bid-rigging.]

(2) An agreement, decision or concerted practice shall not be prohibited under subsection (1) if it complies with the conditions referred to in subsection (5) or falls within a category of agreements, decisions, or concerted practices the subject of a declaration for the time being in force under subsection (3).

F9[(3) Either competent authority may in writing declare that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5), but only with the concurrence of the other competent authority. If the competent authority that made the declaration later forms the opinion that the category no longer complies with those conditions, it may revoke the declaration, but only with the concurrence of the other competent authority.]

(4) F9[The competent authority] shall publish, in such manner as it thinks fit, notice of the making of a declaration under subsection (3), and of any revocation by it of such a declaration.

(5) The conditions mentioned in subsections (2) and (3) are that the agreement, decision or concerted practice or category of agreement, decision or concerted practice, having regard to all relevant market conditions, contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not—

(a) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives,

(b) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.

(6) The prohibition in subsection (1) shall not prevent the court, in exercising any jurisdiction conferred on it by this Act concerning an agreement, decision or concerted practice which contravenes that prohibition and which creates or, but for this Act, would have created legal relations between the parties thereto, from applying, where appropriate, any relevant rules of law as to the severance of those terms of that agreement, decision or concerted practice which contravene that prohibition from those which do not.

(7) In respect of an agreement, decision or concerted practice such as is referred to in subsection (6) a court of competent jurisdiction may make such order as to recovery, restitution or otherwise between the parties to such agreement, decision or concerted practice as may in all the circumstances seem just, having regard in particular to any consideration or benefit given or received by such parties on foot thereof.

(8) The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18, shall not be prohibited under subsection (1).

(9) For the avoidance of doubt, references in this Part of this Act to the parties to an agreement, decision or concerted practice of a kind referred to in subsection (1) include references to one or more of the parties to such an agreement, decision or concerted practice.

(10) Subsection (9) is without prejudice to section 11(a) of the Interpretation Act, 1937.

F8[(11) In this section—

"bid-rigging" means the formation or continuation of an agreement or concerted practice between undertakings concerning or relating to their participation or non-participation in a relevant bidding process without informing the person requesting bids or tenders, and without prejudice to the generality of the foregoing includes the following:

(a) an agreement whereby one or more undertakings agree not to submit a bid or tender in a relevant bidding process, or agree to withdraw a bid or tender submitted as part of such a process;

(b) an agreement whereby one or more undertakings submit a bid or tender, as part of a relevant bidding process, on terms, or subject to conditions, arrived at in accordance with the agreement or concerted practice between such undertakings;

(c) collusive tendering;

"relevant bidding process" means a process by which bids or tenders to supply a product or service, to produce a product or to enter into a concession contract are requested.]

5. Abuse of dominant position.

5.—(1) Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in any part of the State is prohibited.

(2) Without prejudice to the generality of subsection (1), such abuse may, in particular, consist in—

(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,

(b) limiting production, markets or technical development to the prejudice of consumers,

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage,

(d) making the conclusion of contracts subject to the acceptance by other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts.

(3) The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18, shall not be prohibited under subsection (1).

6. Offence in respect of breach of section 4(1) or Article 81(1) of the Treaty.

6.—F10[(1) An undertaking that—

(a) enters into, or implements, an agreement,

(b) makes or implements a decision, or

(c) engages in a concerted practice,

that is prohibited bysection 4(1)or by Article 101(1) of the Treaty on the Functioning of the European Union, and that—

(i) intentionally or recklessly acts to prevent, restrict or distort competition, or

(ii) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.]

(2) In proceedings for an offence under subsection (1), it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to—

(a) directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice,

(b) limit output or F10[sales,]

(c) share markets or F10[customers, or]

F11[(d) engage in bid-rigging.]

has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise.

(3) In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in section 4(1), it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue of section 4(2).

(4) In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 81(1) of the Treaty, it shall be a good defence to prove that—

(a) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the F12[European Commission] pursuant to Article 81(3) of the Treaty,

(b) at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the F12[European Commission] pursuant to that Article 81(3), or

(c) the agreement, decision or concerted practice did not contravene that prohibition by virtue of that Article 81(3).

(5) In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body.

(6) For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.

F13[(7) In this section "competing undertakings" means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.]

7. Offence in respect of breach of section 5(1) or Article 82 of the Treaty.

7.—F14[(1) An undertaking that acts in a manner prohibited bysection 5(1)or by Article 102 of the Treaty on the Functioning of the European Union, and which—

(a) intentionally or recklessly acts to prevent, restrict or distort competition, or

(b) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.]

(2) In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body.

(3) For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.

7A. F15[Limitation of certain prosecutions

7A.—An undertaking shall not be prosecuted for an offence undersection 6unless the offence—

(a) relates to agreements between undertakings, decisions by associations of undertakings or concerted practices, and

(b) involves—

(i) price fixing,

(ii) market sharing,

(iii) output restrictions,

(iv) bid-rigging,

(v) collective boycott agreements,

(vi) sharing information concerning future prices and future quantities of production, or

(vii) restricting the ability of undertakings to carry out research and development or to continue to use their own technology for future research and development.]

7B. F16[Defences - administrative proceedings

7B.—(1) In administrative proceedings in respect of a breach ofsection 4or Article 101 of the Treaty on the Functioning of the European Union—

(a) it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to—

(i) directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice,

(ii) engage in bid-rigging,

(iii) limit output or sales, or

(iv) share markets or customers,

has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise,

(b) it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue ofsection 4(2), and

(c) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union, it shall be a good defence to prove that—

(i) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union,

(ii) at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union, or

(iii) the agreement, decision or concerted practice did not contravene that prohibition by virtue of Article 101(3) of the Treaty on the Functioning of the European Union.

(2) In administrative proceedings in respect of a breach ofsection 4or5or of Article 101 or Article 102 of the Treaty on the Functioning of the European Union—

(a) it shall be a good defence to prove that the act concerned was done pursuant to a determination made or a direction given by a statutory body, and

(b) for the purpose of determining liability, any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.

(3) In this section—

"administrative proceedings" means proceedings, including proceedings before an adjudication officer or court, relating to any of the following:

(a) a prohibition notice;

(b) a statement of objections undersection 15L;

(c) a referral to an adjudication officer undersection 15M;

(d) administrative sanctions;

"competing undertakings" means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.

8. Penalties and proceedings in relation to offences under section 6 and 7.

8.—(1) An undertaking guilty of an offence under section 6 (being an offence involving an agreement, decision or concerted practice to which subsection (2) of that section applies) shall be liable—

(a) on summary conviction—

(i) in the case of an undertaking that is not an individual, to a F17[class A fine] or

(ii) in the case of an individual, to such a fine or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment,

F18[(b) on conviction on indictment—

(i) in the case of an undertaking that is not an individual, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or

(ii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €50,000,000, or 20 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 10 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.]

(2) An undertaking guilty of an offence under section 6 (other than one to which subsection (1) applies) or section 7 shall, whether the undertaking is an individual or otherwise, be liable—

(a) on summary conviction, to a F17[class A fine] or

F18[(b) on conviction on indictment, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction.]

(3) Sections 6 and 7 operate so that if the contravention concerned continues one or more days after the date of its first occurrence the undertaking referred to in section 6 or 7, as the case may be, is guilty of a separate offence under that section for each day that the contravention occurs; but in respect of the second or subsequent offence of which the undertaking is guilty by reason of that continued contravention, subsections (1) and (2) shall have effect as if—

(a) in the case of subsection (1)—

F17[(i) in paragraph (a), "class E fine" were substituted for "class A fine" and references to imprisonment were disregarded, and]

(ii) in paragraph (b)—

(I) references to a fine not exceeding F17[€50,000] were substituted for the references to a fine not exceeding the greater of the monetary amounts mentioned therein, and

(II) references to imprisonment were disregarded,

and

(b) in the case of subsection (2)—

F17[(i) in paragraph (a), "class E fine" were substituted for "class A fine", and]

(ii) in paragraph (b), a reference to a fine not exceeding F17[€50,000] were substituted for the reference to a fine not exceeding the greater of the monetary amounts mentioned therein.

(4) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under section 6 or 7 in proceedings brought by F19[the competent authority], it shall, on the application of F19[that authority] (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to F19[that authority] and such payment may be enforced by F19[that authority] as if the payment were due to F19[that authority] on foot of a decree or order made by the court in civil proceedings.

(5) The amount of any fine paid to, or recovered by, F19[the competent authority] under subsection (4) shall be disposed of by it in such manner as the Minister for Finance directs.

(6) Where an offence under section 6 or 7 has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to, by a person, being a director, manager, or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(7) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that that person consented to the doing of the acts by the undertaking which constituted the commission by it of the offence concerned under section 6 or 7.

(8) Where the affairs of a body corporate are managed by its members, subsections (6) and (7) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.

(9) Summary proceedings in relation to an offence under section 6 or 7 may be brought by F19[the competent authority].

(10) An action under F17[section 14 or section 14A] may be brought whether or not there has been a prosecution for an offence under section 6 or 7 in relation to the matter concerned and such an action shall not prejudice the initiation of a prosecution for any such offence.

(11) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under section 6 or 7 may be instituted within 2 years after the day on which the offence was committed.

F20[(11A) Section 1(1) of the Probation of Offenders Act 1907 shall not apply in relation to an offence undersection 6or7.

(11B)F21[…]

(11C)F21[…]]

(12) In this section “turnover” does not include any payment in respect of value-added tax on sales or the provision of services or in respect of duty of excise.

9. Provisions as respects expert evidence.

9.—(1) In proceedings under this Act, the opinion of any witness F22[who appears to the court or adjudication officer, as the case may be,] to possess the appropriate qualifications or experience as respects the matter to which his or her evidence relates shall, subject to subsection (2), be admissible in evidence as regards any matter calling for expertise or special knowledge that is relevant to the proceedings and, in particular and without prejudice to the generality of the foregoing, the following matters, namely—

(a) the effects that types of agreements, decisions or concerted practices may have, or that specific agreements, decisions or concerted practices have had, on competition in trade,

(b) an F22[explanation to the court or adjudication officer, as the case may be,] of any relevant economic principles or the application of such principles in practice, where such an explanation would be of F22[assistance to the judge, adjudication officer or jury, as the case may be].

(2) Notwithstanding anything contained in subsection (1), F22[a court or adjudication officer, as the case may be, may], where in its opinion the interests of justice require it to so direct in the proceedings concerned, direct that evidence of a general or specific kind referred to in the said subsection shall not be F22[admissible in proceedings under this Act] or shall be admissible in such proceedings for specified purposes only.

10. Provision of information to juries.

10.—In a trial on indictment of an offence under section 6 or 7, the trial judge may order that copies of any or all of the following documents shall be given to the jury in any form that the judge considers appropriate:

(a) any document admitted in evidence at the trial,

(b) the transcript of the opening speeches of counsel,

(c) any charts, diagrams, graphics, schedules or agreed summaries of evidence produced at the trial,

(d) the transcript of the whole or any part of the evidence given at the trial,

(e) the transcript of the closing speeches of counsel,

(f) the transcript of the trial judge's charge to the jury.

11. Trial of persons for certain offences by Central Criminal Court.

11.—A person indicted (whether as a principal or an accessory) for an offence under section 6 or 7 or the offence of attempting to commit such an offence or the offence of conspiracy to commit such an offence shall be tried by the Central Criminal Court.

12. Presumptions.

12.—(1) The presumptions specified in this section shall apply in any proceedings, F23[whether criminal or civil, including proceedings underParts 2Cto2H], under this Act.

(2) Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person.

(3) Where a document purports to have been created by a person and addressed and sent to a second person, it shall be presumed, unless the contrary is shown, that the document was created and sent by the first person and received by the second person, and that any statement contained therein—

(a) unless the document expressly attributes its making to some other person, was made by the first person, and

(b) came to the notice of the second person.

(4) Where a document is retrieved from an electronic storage and retrieval system, it shall be presumed, unless the contrary is shown, that the author of the document is the person who ordinarily uses that electronic storage and retrieval system in the course of his or her business.

(5) Where an authorised officer who, in the exercise of his or her powers F24[undersection 37of the Competition and Consumer Protection Act 2014], has removed one or more documents from any place, gives evidence in any proceedings under this Act that, to the best of the authorised officer's knowledge and belief, the material is the property of any person, then the material shall be presumed, unless the contrary is shown, to be the property of that person.

(6) Where, in accordance with subsection (5), material is presumed in proceedings under this Act to be the property of a person and the authorised officer concerned gives evidence that, to the best of the authorised officer's knowledge and belief, the material is material which relates to any trade, profession, or, as the case may be, other activity, carried on by that person, the material shall be presumed, unless the contrary is proved, to be material which relates to that trade, profession, or, as the case may be, other activity, carried on by that person.

(7) References in this section to a document are references to a document in written, mechanical or electronic form and, for this purpose, “written” includes any form of notation or code whether by hand or otherwise and regardless of the method by which, or medium in or on which, the document concerned is recorded.

13. Admissibility of statements contained in certain documents.

13.—F25[…]

14. Right of action for breaches of competition rules.

14.—(1) Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is F26[prohibited under section 4 or 5, or by Article 101 or 102 of the Treaty on the Functioning of the European Union,] shall have a right of action under this subsection for relief against either or both of the following, namely—

(a) any undertaking which is or has at any material time been a party to such an agreement, decision or concerted practice or has done any act that constituted such an abuse,

(b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the entry by the undertaking into, or the implementation by it of, the agreement or decision, the engaging by it in the concerted practice or the doing by it of the act that constituted the abuse.

(2) F27[…]

(3) Subject to subsection (4), an action under subsection (1) F27[…] may be brought in the Circuit Court or in the High Court.

(4) Where an action under subsection (1) is brought in the Circuit Court any relief by way of damages F28[…] shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort.

(5) F26[The following reliefs, or any of them, may be granted to the plaintiff in an action undersubsection (1)]:

(a) relief by way of injunction or F26[declaration (including a declaration in respect of a contravention of section 4 or 5 or Article 101 or 102 of the Treaty on the Functioning of the European Union that has ceased)],

(b) damages F29[…].

(6) F27[…]

F26[(7) Without prejudice tosubsection (5), where in an action undersubsection (1)it is finally decided by the Court that an undertaking has, contrary tosection 5, or Article 102 of the Treaty on the Functioning of the European Union, abused a dominant position, the Court may, by order, either—

(a) require the undertaking to discontinue the abuse, or

(b) require the undertaking to adopt such measures for the purpose of—

(i) its ceasing to be in a dominant position, or

(ii) securing an adjustment of that position,

as may be specified in the order (including measures consisting of the sale of assets of the undertaking) within such period as may be so specified.]

(8) Where in an action under subsection (1) F30[…] it is proved that the act complained of was done by an undertaking it shall be presumed, until the contrary is proved, that each (if any) director of the undertaking and person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, and any other person who purported to act in any such capacity at the material time, consented to the doing of the said act.

(9) In an action under subsection (1) for damages, it shall be a good defence to prove that the act complained of was done pursuant to a determination made or a direction given by a statutory body.

F31[(10) In this section "injunction" means—

(a) an interim injunction,

(b) an interlocutory injunction, or

(c) an injunction of definite or indefinite duration.]

14A. F32[Right of action of competent authority.

14A.—(1) The competent authority shall, in respect of any agreement, decision, concerted practice or abuse that is prohibited undersection 4or5, or by Article 101 or 102 of the Treaty on the Functioning of the European Union, have a right of action under this subsection for relief against either or both of the following:

(a) any undertaking which is or has at any material time been a party to such an agreement, decision or concerted practice or has done any act that constituted such an abuse;

(b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the entry by the undertaking into, or the implementation by it, of the agreement or decision, the engaging by it in the concerted practice or the doing by it of the act that constituted the abuse.

(2) An action undersubsection (1)may be brought in the Circuit Court or in the High Court.

(3) Relief by way of injunction or declaration (including a declaration in respect of a contravention ofsection 4or5or Article 101 or 102 of the Treaty on the Functioning of the European Union that has ceased) may be granted to the competent authority in an action undersubsection (1).

(4) Without prejudice tosubsection (3), where in an action undersubsection (1)it is finally decided by the Court that an undertaking has, contrary tosection 5, or Article 102 of the Treaty on the Functioning of the European Union, abused a dominant position, the Court may, by order either—

(a) require the undertaking to discontinue the abuse, or

(b) require the undertaking to adopt such measures for the purpose of—

(i) its ceasing to be in a dominant position, or

(ii) securing an adjustment of that position,

as may be specified in the order (including measures consisting of the sale of assets of the undertaking) within such period as may be so specified.

(5) Where in an action undersubsection (1)it is proved that the act complained of was done by an undertaking it shall be presumed, until the contrary is proved, that each (if any) director of the undertaking and person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, and any other person who purported to act in any such capacity at the material time, consented to the doing of the said act.

F33[(5A)(a) Where, in an action undersubsection (1), the competent authority seeks relief by way of interlocutory injunction, the Court shall not, save in exceptional circumstances, as a condition of granting the injunction, require the competent authority to lodge an undertaking in respect of damages with the Court.

(b) For the avoidance of doubt, where in an action undersubsection (1), the competent authority seeks relief by way of interim injunction, nothing inparagraph (a)shall be construed as imposing an obligation on the Court to require a competent authority to lodge an undertaking in respect of damages as a condition of granting the injunction.]

(6) In this section "injunction" means—

(a) an interim injunction,

(b) an interlocutory injunction, or

(c) an injunction of definite or indefinite duration.]

14B. F34[Applications to High Court for orders in relation to certain agreements.

14B.—F35[…]]

15. Appeal to High Court against declaration under section 4(3).

15.—(1) Any undertaking or association of undertakings concerned or any other person aggrieved by the making of the particular declaration may appeal to the High Court against the making of a declaration under section 4(3).

(2) Such an appeal shall be made to the High Court within 28 days after the date of the publication of the notice under section 4(4) in relation to the declaration or such greater period as the High Court may, on application being made to it, specify for the purposes of this subsection in relation to the particular appeal.

(3) On the hearing of an appeal under this section, the High Court may confirm, amend or annul the declaration concerned.

(4) The High Court, on application being made to it, may by order provide that, pending the hearing and determination of an appeal under this section in relation to a declaration, the declaration shall not have effect for the purposes of section 4(2).

PART 2A Competition in Grocery Goods Trade

15A. Definitions and operation of this Part.

15A.—(1) In this Part—

"allowance" includes any discount, rebate, price concession or other advantage that is collateral to a sale or purchase of grocery goods but is not applied directly to the selling or purchase price;

"grocery goods" means any food or drink for human consumption that is intended to be sold as groceries, and includes—

(a) any substance or thing sold or represented for use as food or drink for human consumption,

(b) any substance or thing sold or represented for use as an additive, ingredient or processing aid in the preparation or production of food or drink for human consumption, and

(c) intoxicating liquors;

"grocery goods undertaking" means, subject tosubsections (2)and(3), an undertaking that is engaged for gain in the production, supply or distribution of grocery goods, whether or not the undertaking is engaged in the direct sale of those goods to the public;

"retailer" means a grocery goods undertaking that sells or resells grocery goods directly to the public.

(2) For the purposes of this Part, an undertaking that produces, supplies or distributes an additive, ingredient or processing aid referred to inparagraph (b)of the definition of "grocery goods" insubsection (1)is not a grocery goods undertaking unless the additive, ingredient or processing aid is intended to be sold by a retailer as an additive, ingredient or processing aid.

(3)Subsection (2)applies only to the extent that the undertaking does not otherwise fall within the definition of "grocery goods undertaking" insubsection (1).

(4) For the avoidance of doubt, this Part does not apply to that part of an undertaking’s operation the business of which is to do any of the following:

(a) serve or supply food or drink in the course of providing catering, restaurant or take-away services or any similar hospitality services;

(b) serve or supply intoxicating liquor for consumption on the premises.

(5) This Part operates without prejudice toPart 2.]

15B. F37[ Anti-competitive conduct in grocery goods trading.

15B.—(1) Subject tosubsection (5), a grocery goods undertaking shall not directly or indirectly attempt to compel or coerce another grocery goods undertaking, whether by threat, promise or any like means, to resell or advertise for resale any grocery goods at—

(a) a price fixed directly or indirectly by the first mentioned grocery goods undertaking, or

(b) a price above a minimum price fixed directly or indirectly by the first mentioned grocery goods undertaking.

(2) Subject tosubsection (5), a grocery goods undertaking shall not apply dissimilar conditions to equivalent transactions with any other grocery goods undertaking.

(3) Subject tosubsection (5), a grocery goods undertaking shall not directly or indirectly compel or coerce, whether by threat, promise or any like means, another grocery goods undertaking to make any payment or grant any allowance for the advertising or display of grocery goods.

(4) Subject tosubsection (5)and without limiting the generality ofsubsection (3), a retailer shall not directly or indirectly compel or coerce, whether by threat, promise or any like means, another grocery goods undertaking to make any payment or grant any allowance to the retailer in consideration of any of the following matters:

(a) providing space for grocery goods within a new retail outlet on or within the first 60 days after its opening to the public;

(b) providing space for grocery goods within a newly expanded or extended retail outlet on or within the first 60 days after the opening to the public of the expanded or extended part of the outlet;

(c) providing space for grocery goods within a retail outlet on or within the first 60 days after its opening to the public under new ownership.

(5) Conduct described insubsections (1)to(4)shall not be prohibited unless it has as its object or effect the prevention, restriction or distortion of competition in trade in any grocery goods in the State or in any part of the State.]

15C. F38[Right of action for breach of section 15B.

15C.—(1) Any person who is aggrieved in consequence of any conduct which is prohibited undersection 15Bshall have a right of action under this subsection for relief against any of the following:

(a) any grocery goods undertaking which is or has at any material time been a party to the prohibited conduct;

(b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the prohibited conduct.

(2) The Authority shall have a right of action under this subsection in respect of conduct which is prohibited undersection 15B.

F39[(3) Subject tosubsection (4), an action undersubsection (1)may be brought in the Circuit Court or in the High Court.]

F40[(3A) Subject tosubsection (5), an action undersubsection (2)may be brought in the Circuit Court or in the High Court.]

F39[(4)Subsections (4),(5),(8)and(9)ofsection 14apply with the necessary changes for the purposes of an action undersubsection (1)of this section and, for that purpose, a reference insubsections (4),(5),(8)and(9)ofsection 14to an action undersubsection (1)of that section is to be read as a reference to an action undersubsection (1)of this section.]]

F40[(5)Subsections (3)and(5)ofsection 14A(inserted bysection 4of theCompetition (Amendment) Act 2012) apply with the necessary changes for the purposes of an action undersubsection (2)of this section and, for that purpose, a reference insubsections (3)and(5)ofsection 14Ato an action undersubsection (1)of that section is to be read as a reference to an action undersubsection (2)of this section.]

PART 2B Application of Section 4 to Collective Bargaining and Agreements in respect of Certain Categories of Workers] Annotations Amendments: F41 Inserted (7.09.2017) by Competition (Amendment) Act 2017 (12/2017), s. 2, commenced as per s. 4(4).

15D. F41[Definitions.

15D.In this Part—

"collective bargaining" has the same meaning as it has in theIndustrial Relations (Amendment) Act 2001;

"false self-employed worker" means an individual who—

(a) performs for a person ("other person"), under a contract (whether express or implied and if express, whether orally or in writing), the same activity or service as an employee of the other person,

(b) has a relationship of subordination in relation to the other person for the duration of the contractual relationship,

(c) is required to follow the instructions of the other person regarding the time, place and content of his or her work,

(d) does not share in the other person’s commercial risk,

(e) has no independence as regards the determination of the time schedule, place and manner of performing the tasks assigned to him or her, and

(f) for the duration of the contractual relationship, forms an integral part of the other person’s undertaking;

"fully dependent self-employed worker" means an individual—

(a) who performs services for another person (whether or not the person for whom the service is being performed is also an employer of employees) under a contract (whether express or implied, and if express, whether orally or in writing), and

(b) whose main income in respect of the performance of such services under contract is derived from not more than 2 persons;

"relevant category of self-employed worker" means—

(a) a class of worker specified inSchedule 4, or

(b) a class of false self-employed worker or fully dependent self- employed worker specified in an order made by the Minister undersection 15F;

"trade union" has the same meaning as it has in theIndustrial Relations Act 1946.]

15E. F43[Collective bargaining and agreements in respect of certain categories of workers.

15E.—Section 4shall not apply to collective bargaining and agreements in respect of a relevant category of self-employed worker.]

15F. F44[Prescribed relevant category of self-employed worker

15F.—(1) A trade union which represents a class of—

(a) false self-employed worker, or

(b) fully dependent self-employed worker,

may, for the purposes of collective bargaining and agreements on behalf of the class of worker so represented, apply to the Minister in accordance with this section, to prescribe such class of false self-employed worker or fully dependent self-employed worker for the purposes of this Part.

(2) An application by a trade union undersubsection (1)shall be made in the manner specified by the Minister and shall be accompanied by evidence to show—

(a) that the class of false self-employed worker or fully dependent self-employed worker, as the case may be, the subject of the application, falls within the definition of false self-employed worker or fully dependent self-employed worker, as the case may be, and

(b) that the prescribing of such class of false self-employed worker or fully dependent self-employed worker, as the case may be—

(i) will have no or minimal economic effect on the market in which the class of self-employed worker concerned operates,

(ii) will not lead to or result in significant costs to the State, and

(iii) will not otherwise contravene the requirements of this Act or any other enactment or rule of law (including the law in relation to the European Union) relating to the prohibition on the prevention, restriction or distortion of competition in trade in any goods or services.

(3) Subject tosubsection (5), where, in relation to an application undersubsection (1), the Minister is satisfied—

(a) of the matters referred to inparagraphs (a)and(b)ofsubsection (2), and

(b) that it is appropriate to do so,

he or she may prescribe by order the class of false self-employed worker or fully dependent self-employed worker, as the case may be, as a relevant category of self-employed worker.

(4) Where the Minister is not satisfied in accordance withsubsection (3), he or she shall refuse an application undersubsection (2).

(5) An order undersubsection (3)shall only be made after consultation by the Minister with—

(a) such other Minister of the Government who, in the opinion of the Minister, having regard to the functions of that other Minister of the Government, ought to be consulted, and

(b) any other person or body who, in the opinion of the Minister, having regard to the functions of that other person or body, ought to be consulted.

(6) Where a class of false self-employed worker or fully dependent self- employed worker has been prescribed by the Minister under this section and, since the making of the order—

(a) the market conditions or circumstances which pertained to the making of that order have changed substantially, or

(b) new information relevant to the application which was the subject of the order becomes available to the Minister,

the Minister may, if he or she is of the opinion that it is no longer appropriate for the class of false self-employed worker or fully dependent self-employed worker concerned to be so prescribed, revoke the prescription of the relevant category of self-employed worker by order.

(7) Whenever the Minister proposes to make an order undersubsection (6), he or she—

(a) shall inform in writing the trade union who made the application concerned of the proposal and of the reasons for it and he or she may specify a period for the making of a submission undersubsection (8),

(b) may invite such other persons as he or she considers appropriate to make submissions in respect of his or her proposal within such a period as he or she may specify,

(c) shall, in a case where the Minister consulted another Minister of the Government or other person or body undersubsection (5)in respect of the making of an order undersubsection (3), the subject of the proposal, consult with that Minister of the Government or person or body in respect of the proposal concerned, and

(d) shall cause notice of the proposal to be published on the Department’s website and in one national newspaper circulating within the State.

(8) A trade union notified undersubsection (7) (a)or other person or body referred to insubsection (7)(b)may make a submission to the Minister within the period (if any) specified by the Minister undersubsection (7) (a)or(b), as may be appropriate, regarding the proposal setting out the reasons why the order should or should not be made.

(9) The Minister shall consider any submission made to him or her undersubsection (8)before making an order undersubsection (6).

(10) Where the Minister makes an order undersubsection (3)or(6), he or she shall cause notice of the making of the order to be published on the Department’s website and in one national newspaper circulating within the State.]

PART 2C Investigations

15G. Conduct of certain investigations

15G.—(1) One or more authorised officers may or, where directed to do so by the competent authority, shall, carry out an investigation into any suspected infringement of relevant competition law.

(2) Subject to this Act and any regulations made under it and—

(a) in the case of the Competition and Consumer Protection Commission, the Consumer Protection Act 2007 and the Act of 2014 and any regulations made thereunder, and

(b) in the case of the Commission for Communications Regulation, the Act of 2002 and any regulations made thereunder,

the competent authority may regulate its procedures, by rules or otherwise, for conducting such investigations in such manner as it shall from time to time determine, including the scope and terms of the investigation to be carried out, whether as respects the matters or the period to which an investigation is to extend or otherwise, and may, in particular, limit the investigation to matters connected with particular circumstances or particular issues.]

15H. F46[Prohibition notice

15H.—(1) Where, at any time during an investigation under this Part, the competent authority suspects that there is a risk that, by virtue of conduct which may give rise to an infringement of relevant competition law, an undertaking or association of undertakings will cause serious and irreparable harm to competition, the competent authority may issue a notice in writing to the undertaking, or association of undertakings, concerned (in this Act referred to as a "prohibition notice").

(2) A prohibition notice—

(a) shall state that the competent authority suspects that there is a risk that a notified undertaking will cause serious and irreparable harm to competition,

(b) shall state the reasons for that suspicion,

(c) shall specify the nature of the infringement of relevant competition law that the competent authority suspects has occurred or may be occurring,

(d) may, where the competent authority considers it appropriate to do so, specify directions as to measures to be taken, and a date before which, or a range of dates within which, they shall be taken, by the notified undertaking in order to—

(i) remedy any suspected infringement of relevant competition law to which the notice relates,

(ii) avoid or limit serious and irreparable harm to competition, or

(iii) otherwise comply with, or address matters specified in, the notice,

(e) shall prohibit the carrying on of the suspected infringement of relevant competition law to which the notice relates for such period as may be specified in the notice,

(f) shall specify a period within which the notified undertaking may make written submissions to the competent authority on the content of the prohibition notice, and

(g) shall be signed and dated by the competent authority.

(3) An undertaking to which a prohibition notice has been issued may, within such period as is specified in the prohibition notice, make written submissions to the competent authority on the content of the prohibition notice.

(4) As soon as is practicable after—

(a) receiving submissions undersubsection (3), or

(b) where no submissions undersubsection (3)are received, the expiry of the period within which such submissions may be made,

the competent authority shall issue a written notice to the notified undertaking—

(i) confirming that the measures specified in the prohibition notice are required to be put into effect by the notified undertaking in accordance with that notice, with or without modification, or

(ii) withdrawing the prohibition notice.

(5) Subject tosubsections (6)and(7), and to any suspension or order made by the High Court undersection 15AY, a prohibition notice shall take effect on such date or time as may be specified in the notice, and remain in effect until the earlier of the expiry of the period specified in the notice (including such period as stands extended undersubsection (6)) or the date on which the effect of the prohibition notice is ended undersection 15J.

(6) The competent authority may, where it considers it necessary to do so, extend a period referred to in a prohibition notice for such further period as it may specify by written notice issued to the notified undertaking, provided such notice is issued—

(a) in the case of the first such notice, before the expiry of the period specified in the prohibition notice, or

(b) where the period referred to in the prohibition notice stands extended by a notice under this subsection, before the expiry of the period as so extended.

(7) An appeal made against a prohibition notice shall not suspend its effect unless an order is made undersection 15AY(14)(b).

(8) A notified undertaking shall not, for the period during which a prohibition notice has effect, carry on any suspected infringement of relevant competition law specified in the prohibition notice as being prohibited.

(9) The competent authority may, at any time during which a prohibition notice has effect, where it is of the opinion that the prohibition notice was issued in error or was incorrect in a material respect, issue written notice to a notified undertaking amending the prohibition notice, which notice shall specify the date from which such amendment shall have effect, and the prohibition notice shall have effect as if such amendment was included in the prohibition notice from the day specified in the second-mentioned notice.

(10) The competent authority shall, after issuing a prohibition notice to an undertaking or association of undertakings in accordance with this section, inform the European Competition Network (within the meaning of the Directive).]

15I. F47[Appeal against prohibition notice

15I.—A notified undertaking may appeal against a prohibition notice in accordance withsection 15AY.]

15J. F48[Ending of effect of prohibition notice

15J.—(1) Subject tosubsection (2)andsection 15H(5), a prohibition notice shall cease to have effect on and from the earlier of the date on which—

(a) the competent authority issues a written notice to the notified undertaking stating that the prohibition notice is withdrawn, or

(b) the court undersection 15AYor15AZ, as the case may be, confirms the decision of an adjudication officer undersection 15Xon the matter to which the prohibition notice relates.

(2) Where a prohibition notice was issued in error, or subject to a material error of fact or law, the competent authority may issue a written notice to the notified undertaking stating that the prohibition notice is cancelled, and a prohibition notice in relation to which notice under this subsection is so issued shall be deemed never to have been issued.]

15K. F49[Choice of enforcement mechanism

15K.—(1) Where, at any time during an investigation under this Part, the competent authority forms a preliminary view that an infringement of relevant competition law may have occurred, or may be occurring, and forms the view that the matter is to be treated as a criminal matter, the competent authority may—

(a) refer the matter to the Director of Public Prosecutions for the purpose of considering commencing criminal proceedings undersection 6or7, or

(b) bring summary proceedings undersection 8(9).

(2) Where, at any stage during an investigation under this Part, the competent authority forms a preliminary view that an infringement of relevant competition law may have occurred, or may be occurring, and that the matter is not to be treated as a criminal matter, the competent authority shall—

(a) issue a statement of objections undersection 15Lto the undertaking or association of undertakings that, in its view, is responsible for such infringement, or

(b) seek relief against an undertaking by way of an action undersection 14A.

(3) Where a matter is referred to the Director of Public Prosecutions undersubsection (1)(a)and the Director of Public Prosecutions, in relation to that matter—

(a) commences criminal proceedings in respect of an offence undersection 6or7against an undertaking or association of undertakings that are struck out, concluded, discontinued or otherwise determined other than by way of nolle prosequi, the competent authority shall not pursue the proceedings referred to insubsection (1)(b)or(6)against such undertaking or association of undertakings in respect of the same matter,

(b) commences criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings, which are determined by way of nolle prosequi, the competent authority may pursue, against such undertaking or association of undertakings in respect of the same matter, either—

(i) proceedings referred to insubsection (1)(b), or

(ii) one or more of the proceedings referred to insubsection (6),

or

(c) decides not to commence criminal proceedings in respect of an offence undersection 6or7against an undertaking or association of undertakings, the competent authority may pursue any one of the proceedings referred to insubsections (1)(b)or(6)against such undertaking or association of undertakings in respect of the same matter.

(4) Where the competent authority initiates proceedings referred to insubsection (6)against an undertaking or association of undertakings and the proceedings are not withdrawn before a decision undersection 15Xis made, the competent authority may not subsequently pursue any of the proceedings referred to insubsection (1), orparagraphs (b)to(d)ofsubsection (6), against the same undertaking or association of undertakings in respect of the same matter where—

(a) the adjudication officer finds that there has been no infringement of relevant competition law by the undertaking or association of undertakings,

(b) the adjudication officer finds that there has been an infringement of relevant competition law by the undertaking or association of undertakings and no administrative sanctions have been imposed,

(c) the adjudication officer finds that there has been an infringement of relevant competition law by an undertaking or association of undertakings and administrative sanctions have been imposed, or

(d) the proceedings have been otherwise determined, including by operation of commitments entered into undersection 15AEor structural or behavioural remedies imposed undersection 15Xin accordance withsection 15Z.

(5) For the avoidance of doubt, a preliminary view undersubsections (1)or(2)may be formed in relation to conduct that is no longer ongoing.

(6) The proceedings referred to in this subsection are proceedings relating to the following:

(a) administrative financial sanctions undersection 15AA;

(b) commitments in accordance withsection 15AE;

(c) structural or behavioural remedies undersection 15Z;

(d)section 14Aor15C.]

15L. F50[Statement of objections

15L.—(1) A statement of objections shall be in writing and shall—

(a) inform the relevant recipient that the competent authority has formed a preliminary view that—

(i) an infringement of relevant competition law may have occurred or may be occurring,

(ii) a breach of a procedural requirement may have occurred or may be occurring,

(iii) the undertaking or association of undertakings concerned has failed to comply with commitments entered into undersection 15AE,

(iv) the undertaking or association of undertakings concerned has failed to comply with a structural or behavioural remedy imposed undersection 15Xin accordance withsection 15Z, or

(v) the undertaking or association of undertakings concerned has failed to comply with a prohibition notice issued undersection 15H,

(b) set out the competent authority’s reasons for forming that preliminary view,

(c) provide the relevant recipient with an explanation of how it is responsible, in the preliminary view of the competent authority, for the matter referred to inparagraph (a)in sufficient detail to allow the relevant recipient to fully respond to the statement of objections in accordance withsubsection (2), and

(d) inform the relevant recipient of its right to make submissions undersubsection (3), and the period within which that right may be exercised.

(2) The competent authority shall, as soon as is practicable after issuing the statement of objections, give the relevant recipient a copy of, or access to, any material relied upon by the competent authority for the purpose of issuing the statement of objections, subject to such redactions as the competent authority may consider necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason.

(3) Subject tosubsection (4), a relevant recipient may, within such period as is specified in the statement of objections, make written submissions to the competent authority on the content of the statement of objections.

(4) Notwithstanding the period specified in the statement of objections in accordance withsubsection (1)(d), the competent authority may, where it is appropriate to do so in the circumstances of the case, extend the period within which written submissions may be made and shall notify the relevant recipient in writing of the revised period.

(5) Where a statement of objections relates wholly to the matter referred to insubsection (1)(a)(i), the competent authority may, as it considers appropriate and as soon as is practicable after receiving written submissions, if any, on the content of the statement of objections from the relevant recipient undersubsection (3)or, where no such submissions are received, as soon as is practicable after the expiry of the period within which such submissions may be made under this section—

(a) carry out further analysis or otherwise continue the investigation into the matter in question,

(b) close the investigation and not take any further action in respect of the matter,

(c) enter into commitments with the relevant recipient undersection 15AE,

(d) agree, at any time prior to a decision being made by an adjudication officer undersection 15X, a settlement with the relevant recipient concerned and make a referral to an adjudication officer in accordance withsection 15Mfor an order on consent undersection 15X(8), or

(e) determine that it should prepare a full investigation report in accordance withsubsection (9)for the purpose of considering whether to make a referral to an adjudication officer in accordance withsection 15M.

(6) Where a statement of objections relates wholly or partly to a matter referred to insubsection (1)(a)(ii)to(v), the competent authority may, as it considers appropriate and as soon as is practicable after receiving written submissions, if any, on the content of the statement of objections from the relevant recipient undersubsection (3)or, where no such submissions are received, as soon as is practicable after the expiry of the period within which such submissions may be made under this section—

(a) not take any further action in respect of the matter, or

(b) determine that it should prepare a full investigation report in accordance withsubsection (9)for the purpose of considering whether to make a referral to an adjudication officer in accordance withsection 15M.

(7) (a) Where the competent authority, having issued a statement of objections, identifies new or different points of fact or law, or new evidence, having a material impact on its analysis set out in the statement of objections, the competent authority shall issue a supplementary statement of objections to the relevant recipient.

(b) The supplementary statement of objections referred to inparagraph (a)shall—

(i) summarise the new or different points of fact or law or new evidence that have been identified by the competent authority and the material impact of such points of fact or law or such evidence on the competent authority’s analysis, and

(ii) inform the relevant recipient of its right to make written submissions underparagraph (c), and specify the period within which that right may be exercised.

(c) Subject toparagraph (d), the relevant recipient to which a supplementary statement of objections is provided may, within such period as is specified in the supplementary statement of objections, make written submissions to the competent authority on the content of the supplementary statement of objections.

(d) Notwithstanding the period specified in the supplementary statement of objections in accordance withparagraph (b)(ii), the competent authority may, where it is appropriate to do so in the circumstances of the case, extend the period within which the relevant recipient may make written submissions underparagraph (c)and shall notify the relevant recipient in writing of the revised period.

(8) Where a competent authority agrees a settlement with an undertaking or association of undertakings and makes a referral referred to insubsection (5)(d), the competent authority shall—

(a) prepare a simplified investigation report containing—

(i) a summary of the facts of the case,

(ii) the allegations against the undertaking or association of undertakings concerned,

(iii) the specific administrative financial sanction or structural or behavioural remedy which the competent authority is seeking to be imposed by the adjudication officer, and

(iv) a statement that the competent authority and the undertaking or association of undertakings concerned consent to the imposition of the administrative financial sanction or structural or behavioural remedy specified in the simplified investigation report,

(b) give a copy of the simplified investigation report referred to inparagraph (a)to the undertaking or association of undertakings concerned, and

(c) refer the matter to an adjudication officer in accordance withsection 15M(1)for an order on consent undersection 15X(8).

(9) Where a competent authority makes a referral to an adjudication officer in accordance withsection 15M, the competent authority shall—

(a) prepare a full investigation report containing—

(i) a detailed description of the relevant facts of the case,

(ii) the allegations against the undertaking or association of undertakings concerned,

(iii) an outline of the facts and evidence on which the competent authority is relying for the purpose of referring the matter to an adjudication officer undersection 15M,

(iv) a summary of any submissions made by the undertaking or association of undertakings concerned to the competent authority during the investigation, including in response to the statement of objections or a supplementary statement of objections, and

(v) any other information that the competent authority considers would be relevant for the adjudication officer to make a decision undersection 15X(2),

(b) as soon as is practicable after preparing the full investigation report, give the undertaking or association of undertakings—

(i) a copy of the full investigation report, and

(ii) a copy of, or access to, any material (other than material that has already been provided to the undertaking) relied upon by the competent authority for the purpose of referring the matter to an adjudication officer undersection 15M, subject to such redactions as the competent authority considers necessary and appropriate in order to protect commercially sensitive information, protect the rights of the parties or any other person, or for any other good and sufficient reason,

and

(c) if the competent authority forms an opinion in accordance withsection 15M(2)(a), refer the matter to an adjudication officer undersection 15M(2).

(10) The competent authority shall not make any recommendation, or express any opinion, in a full investigation report prepared undersubsection (9), as to the amount of any administrative financial sanction which may be imposed undersection 15Xin the event that an adjudication officer is satisfied that the undertaking or association of undertakings has committed an infringement or a breach of procedural requirement or has failed to comply with commitments or with a structural or behavioural remedy.

(11) The competent authority may provide a copy of the full investigation report prepared undersubsection (9), and any such submissions, to such other persons as the competent authority considers appropriate.

(12) A person who receives—

(a) a full investigation report and any submissions undersubsection (9), or

(b) copies of material undersubsection (2),

shall not, without the prior authorisation of the competent authority, disclose the existence or the content of the material or report or submissions to any other person.

(13) A person who contravenessubsection (12)shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(14) The undertaking or association of undertakings which has been provided with the material specified insubsection (9)(b)(ii)may appeal against the decision of the competent authority to impose redactions under that subparagraph—

(a) within 12 working days of the undertaking or association of undertakings receiving a copy of the notice specified insection 15U(1), and

(b) by application to the adjudication officer to whom the matter has been referred undersubsection (9)(c), provided that the adjudication officer may at any point refer the appeal to the Chief Adjudication Officer for re-assignment to and determination by another adjudication officer.]

15M. F51[Referral

15M.—(1) Where the competent authority has agreed a settlement in accordance withsection 15L(5)(d) with the undertaking or association of undertakings concerned as to the imposition of an administrative financial sanction or structural or behavioural remedy, and has prepared a simplified investigation report undersection 15L, the competent authority shall—

(a) refer the matter to an adjudication officer for an order on consent undersection 15X(8), and

(b) furnish the adjudication officer with a copy of the simplified investigation report.

(2) Where, having prepared a full investigation report undersection 15L(9), the competent authority—

(a) forms a provisional opinion that—

(i) an undertaking or association of undertakings has infringed or is infringing relevant competition law,

(ii) there has been a breach of a procedural requirement by an undertaking or association of undertakings,

(iii) an undertaking or association of undertakings has failed to comply with commitments entered into undersection 15AE,

(iv) an undertaking or association of undertakings has failed to comply with a structural or behavioural remedy ordered undersection 15Xin accordance withsection 15Z, or

(v) an undertaking or association of undertakings has failed to comply with a prohibition notice,

and

(b) has elected to bring proceedings under this section or Part 2D in respect of any matter referred to inparagraph (a),

the competent authority shall refer the matter for decision by an adjudication officer undersection 15X.

(3) Where the competent authority refers a matter for decision to an adjudication officer undersubsection (2), the competent authority shall furnish each such adjudication officer with—

(a) the statement of objections, and any supplementary statement of objections, issued by the competent authority undersection 15L,

(b) the full investigation report prepared by the competent authority undersection 15L,

(c) a copy of all material relied upon by the competent authority in referring the matter for decision, and

(d) any submissions made by the undertaking or association of undertakings concerned to the competent authority during the investigation, including in response to the statement of objections issued undersection 15L.

(4) Notwithstandingsubsection (2), the competent authority may, at any time after making a referral under this section, exercise its power undersection 15AEto enter into legally binding commitments with the undertaking or association of undertakings.

(5) The relevant Minister may prescribe—

(a) the procedure for making a referral under this section,

(b) the procedure for withdrawing a referral undersection 15N, and

(c) the procedure for making an order on consent undersection 15X(8).

(6) The competent authority may, subject to this Act and to any regulations made undersubsection (5), make rules detailing—

(a) the procedure for making a referral under this section,

(b) the procedure for withdrawing a referral undersection 15N, and

(c) the procedure for making an order on consent undersection 15X(8).]

15N. F52[Withdrawal of referral

15N.—(1) A referral undersection 15Mmay be withdrawn by the competent authority while it is being or before it has been considered by the adjudication officer.

(2) Where a referral is withdrawn under this section, the adjudication officer shall—

(a) notify the undertaking or association of undertakings of the withdrawal, and

(b) take no further action in relation to the matter.]

PART 2D Adjudication officers

15O. Appointment of adjudication officers

15O.—(1) A competent authority, as a national administrative competition authority, shall nominate, for appointment by the relevant Minister under this section, persons (referred to in this Act as "adjudication officers") to make decisions on behalf of the competent authority undersection 15Xand otherwise to exercise functions under this Act.

(2) The relevant Minister may make regulations providing—

(a) for the creation of a panel of adjudication officers to exercise the functions of adjudication officers in relation to relevant competition law in respect of the Commission, the Commission for Communications Regulation, or both,

(b) for the requirements and qualifications necessary for appointment undersubsection (1), and

(c) for the relevant Minister to appoint—

(i) a Chief Adjudication Officer in respect of either or both competent authorities, or

(ii) a Chief Adjudication Officer in respect of each respective competent authority.

(3) The relevant Minister shall appoint a person nominated by a competent authority under this section unless the relevant Minister—

(a) is not satisfied that the nominated person meets the requirements and qualifications prescribed by the relevant Minister, or

(b) considers that the nominated person does not have the independence necessary to be appointed as an adjudication officer.]

15P. F54[Independence of adjudication officers

15P.—(1) (a) Adjudication officers shall be independent in the performance of their functions.

(b) The competent authority shall put in place measures to ensure—

(i) the independence of adjudication officers in the performance of their functions, and

(ii) the effective implementation of and adherence to any regulations made undersection 15Q.

(c) Where an adjudication officer believes that performing any of his or her functions as an adjudication officer would—

(i) potentially create a conflict of interest, the adjudication officer shall recuse himself or herself from the functions or proceedings in question and shall notify the competent authority and the undertakings concerned of the recusal, or

(ii) give rise to the perception of any potential conflict of interest, the adjudication officer shall disclose that fact to the competent authority and to the undertakings concerned in the matter with which the adjudication officer is dealing, and shall, having regard to any submissions received from the undertakings concerned or from the competent authority, consider whether it is necessary to recuse himself or herself from the functions or proceedings in question.