Competition Act 2002

(iii) making current directors, managers and other members of staff available for interviews with the competent authority and making reasonable efforts to make former directors, managers and other members of staff available for interviews with the competent authority;

(iv) not destroying, falsifying or concealing relevant information or evidence;

(v) unless and to the extent otherwise explicitly authorised by the competent authority, not disclosing the fact of, or any of the content of, its leniency statement before the competent authority has issued a statement of objections in the enforcement proceedings before it,

and

(c) not have—

(i) destroyed, falsified or concealed evidence which falls within the scope of the application, or

(ii) disclosed, directly or indirectly, the fact of, or any of the content of the application it is contemplating except to other competent authorities or any competition authorities of member states or the European Commission or competition authorities of third countries.

(2) The competent authority shall, where it is requested to do so by the applicant, communicate a decision in relation to a leniency statement undersection 15AIor15AJto the applicant in writing.

(3) An undertaking that fails to satisfy all of the requirements specified insubsection (1)shall not be eligible for leniency undersection 15AIor15AJ.

(4) Where a competent authority accedes to an application for leniency undersection 15AIor15AJ, such grant of leniency may be withdrawn where evidence is subsequently obtained by the competent authority which establishes that the undertaking concerned did not satisfy each of the conditions for leniency specified insubsection (1).

(5) Where a competent authority deems that an applicant for leniency does not satisfy each of the conditions for leniency laid down insubsection (1), or withdraws a grant of leniency pursuant tosubsection (4), a competent authority may initiate whatever proceedings against the undertaking concerned as the competent authority deems fit.

(6) An undertaking, and the servants or agents of an undertaking, shall be guilty of an offence where, in the context of an application for immunity from administrative financial sanctions undersection 15AI, or reduction of administrative financial sanctions undersection 15AJ, or a summary application for leniency undersection 15AN, it intentionally or negligently—

(a) provides the competent authority with information that is false or misleading in a material respect, or

(b) fails to comply with the obligation insubsection (1)(b)(iv).

(7) An undertaking or other person guilty of an offence under this section is liable—

(a) on summary conviction—

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

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

or

(b) on conviction on indictment—

(i) in the case of an undertaking that is not an individual, to a fine not exceeding whichever of the following amounts is the greater, €250,000 or 10 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 €250,000 or 10 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 5 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.

(8) The competent authority may publish, on a website maintained by it or on its behalf, guidance as to applications for leniency including the procedures applicable to and appropriate scales for decisions by a competent authority to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings that cooperate with the investigation of a competent authority in respect of any infringement of relevant competition law.

(9) The relevant Minister may make regulations setting out further details or conditions for the grant of leniency from administrative financial sanction.]

15AL. F76[Form of leniency statements

15AL.—(1) An undertaking may apply for leniency by submitting to the competent authority, whether orally or in writing, a statement (in this Part referred to as a "leniency statement") describing the role the applicant had in, and knowledge the applicant had regarding, a cartel.

(2) The precise form of applications for leniency shall be set out in guidelines published by the competent authorities, on a website maintained by them or on their behalf.

(3) A leniency statement, whether or not it has been withdrawn, shall not be admissible in evidence in proceedings under this Act or otherwise, save in accordance withsection 15AM(4).]

15AM. F77[Markers for applications for leniency from administrative financial sanctions

15AM.—(1) Protection (in this section referred to as a "marker") may be afforded to an applicant for leniency undersection 15AIor15AJby, and at the discretion of, the competent authority for a specified period whereby the applicant is given time to gather necessary information and evidence in order to meet the relevant evidential threshold for leniency, in consequence of which the applicant retains his or her place in the queue of applicants for leniency determined by valid chronological application.

(2) (a) An undertaking that intends to make an application for immunity may apply to a competent authority for a marker.

(b) To be eligible to secure a marker, either when the application for a marker is made or within a period granted by the competent authority upon request of the applicant (which period may be extended by the competent authority), the applicant shall provide the competent authority with its name and address, the information referred to insection 15AK(1)(b)(i), an outline of the facts which led to the application for a marker, and any other information reasonably required by the competent authority.

(c) Any information and evidence provided by the applicant within the period specified in accordance withparagraph (b)is deemed to have been submitted at the time of the initial request.

(3) The competent authorities shall, jointly or separately, publish, on a website maintained by them or on their behalf, guidance on the procedures which shall apply to applications for markers.

(4) Where the competent authority refuses to grant a marker, and where immunity from administrative financial sanctions is refused and an administrative financial sanction is imposed, the applicant may later rely on the contents of its application for leniency in proceedings under this Act (whether criminal or civil, including proceedings underParts 2Cto2H) or in an appeal undersection 15AYand the contents of any such application shall be provided to the High Court on any application undersection 15AZ.

(5) For the avoidance of doubt, an undertaking wishing to make an application for the reduction of administrative financial sanctions undersection 15AJmay also apply to the competent authority for a marker.]

15AN. F78[Summary applications for leniency

15AN.—(1) A competent authority shall accept summary applications for leniency (in this section referred to as a "summary application") from applicants that have applied to the European Commission for leniency, either by applying for a marker or by submitting a full application in relation to the same alleged cartel.

(2) A summary application shall only be accepted by a competent authority provided that the application to the European Commission covers more than 3 member states as affected territories.

(3) With a view to enabling the competent authority to determine an application for leniency, a summary application shall consist of a short description of each of the following:

(a) the name and address of the applicant;

(b) the names of other parties to the alleged cartel;

(c) the affected products and territories;

(d) the duration and the nature of the alleged cartel conduct;

(e) the Member States in which the evidence of the alleged cartel is likely to be located;

(f) information on any past or possible future leniency statements made to any other competition authorities or competition authorities of third countries in relation to the alleged cartel.

(4) A summary application shall be accompanied by a copy of the application made to the European Commission and any written confirmation of same received.

(5) The relevant Minister may prescribe rules and procedures governing summary applications for leniency, including procedures and decisions concerning upgrading summary applications to full applications, and guidelines for the exercise of the discretion of the competent authority under this section, and any such regulations shall address the following matters:

(a) the precise form of summary applications for leniency;

(b) the grant of summary application markers;

(c) the process for verifying whether another application or other applications has or have been received in relation to the same cartel and for informing an applicant that it is the first applicant for a marker;

(d) consultation between the competent authority and the European Commission in connection with summary applications for leniency;

(e) the power of the competent authority to request further information in the context of summary applications for leniency;

(f) the power of the competent authority to give directions to undertakings concerning submissions, the provision of information and related matters in the context of summary applications for leniency;

(g) the circumstances in which the competent authority may direct that a summary applicant for leniency may be required to submit a full application and the power of the competent authority to give directions in that regard.]

15AO. F79[Relationship between applications for immunity from administrative financial sanctions and sanctions on natural persons

15AO.—(1) Where the conditions insubsection (2)are met, the following individuals are fully protected from any sanctions that may be imposed in administrative and non-criminal judicial proceedings, in relation to their involvement in the cartel covered by an application for immunity from administrative financial sanctions for infringements of relevant competition law:

(a) current and former directors of the undertaking concerned;

(b) managers of the undertaking concerned;

(c) other members of staff of the undertaking concerned.

(2) The conditions referred to insubsection (1)are as follows:

(a) that the application for immunity from administrative financial sanctions of the undertaking to the relevant competent authority fulfils the requirements in accordance withparagraphs (a)and(b)ofsection 15AI(5);

(b) that the individuals referred to inparagraphs (a),(b)and(c)ofsubsection (1)actively cooperate in this respect with the competent authority concerned;

(c) that the application for immunity from administrative financial sanctions of the undertaking predates the time when the individuals referred to inparagraphs (a),(b)and(c)ofsubsection (1)were made aware by the competent authority of the proceedings leading to the imposition of sanctions referred to insubsection (1).

(3) The individuals referred to inparagraphs (a),(b)and(c)ofsubsection (1)shall not be subject to criminal prosecution in relation to their involvement in the cartel covered by the application for immunity from administrative financial sanctions, for infringements ofsections 4or5, if they meet the conditions set out in guidelines made undersubsection (4)and actively cooperate with the competent prosecuting authority.

(4) The competent prosecuting authority or the competent authority, as the case may be, may publish guidelines on the cooperation of individuals with the relevant authorities required under this section.

(5) Where the condition of cooperation with the competent authority, in accordance withsubsection (3), is not fulfilled, the competent prosecuting authority may proceed with the investigation, including prosecution of the individual or individuals concerned.

(6) Where the competent authority has opened an investigation into a cartel following a leniency statement received under this Part, and a competition authority or prosecuting authority of another member state is also seised in its jurisdiction of any aspect of the same cartel, the competent authority shall ensure contacts between its authorised officers and the competition authority or prosecuting authority of the other Member State.

(7) The competent authorities may publish, on a website maintained by them or on their behalf, guidance as to the procedures applicable to and appropriate scales for decisions by a competent authority in respect of the operation of immunity from administrative financial sanctions in circumstances where another Member State is investigating in its jurisdiction any aspect of the same cartel.]

15AP. F80[Leniency programme for other infringements

15AP.—(1) The competent authority may put in place a leniency programme, whether as part of a leniency programme undersection 15AIor as a separate programme, for infringements of relevant competition law other than cartels to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings in exchange for—

(a) disclosing that they have infringed relevant competition law other than by participating in a cartel, and

(b) voluntarily cooperating with an investigation by the competent authority concerning the application of relevant competition law.

(2) (a) The relevant Minister may prescribe the applicable procedures, conditions, appropriate scales, and factors relevant to decisions by a competent authority undersubsection (1)to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings.

(b) The competent authority may publish, on a website maintained by it or on its behalf, guidance as to the matters set out atparagraph (a).]

PART 2F Mutual assistance

15AQ. Cooperation with other competition authorities

15AQ.(1) A competent authority may request a competition authority of another Member State to carry out an inspection, interview or other fact-finding measure on its behalf.

(2) A competent authority may, on the request of a competition authority of another Member State, or the European Commission (each of which is in this Part referred to as a "requesting competition authority"), carry out an inspection, interview or other fact-finding measure on behalf of the requesting competition authority pursuant to—

(a) this Act,

(b) Article 22 of Regulation (EC) No 1/2003 of 16 December 2002^5on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty,

(c) section 11, 18, 37 or 37A of the Act of 2014,

(d) section 38A, 39 or 39A of the Act of 2002, or

(e) any other relevant power conferred by law on the competent authority.

(3) The competent authority and the competition authority of another Member State may exchange and use in evidence any material, including confidential information, for the purpose of this section, subject to the following limitations:

(a) information provided to the competent authority by the competition authority concerned pursuant to this section shall only be used in evidence for the purpose of applying Article 101 or Article 102 of the Treaty on the Functioning of the European Union and in connection with the subject-matter for which it was collected by the competition authority concerned, save that the information may also be used for the purpose of applyingsection 4or5in the same proceedings;

(b) information provided to the competent authority by the competition authority concerned pursuant to this section may be used in evidence to impose sanctions on a natural person where—

(i) the law of the Member State providing the information provides for sanctions of a similar kind in relation to an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union, or

(ii) the information has been collected in a way that affords the same level of protection of the rights of defence of natural persons as is provided for under the law of the State but, in these circumstances, the information provided to the competent authority may not be used in subsequent proceedings before the courts to impose custodial sanctions on a natural person.

(4) (a) A competent authority may appoint as an authorised officer under section 35 of the Act of 2014 or section 39 of the Act of 2002 any person authorised to be so appointed by a competition authority of another Member State.

(b) To the extent to which a competent authority may confer any of its powers and functions under this Act, the Act of 2014 or the Act of 2002 on an authorised officer, it may so confer same upon an authorised officer appointed in accordance with this subsection.

(c) An authorised officer appointed under section 35 of the Act of 2014 or section 39 of the Act of 2002 in accordance with this subsection shall be accountable to the competent authority for the conduct of their duties in the same manner as an authorised officer not authorised or appointed by the competition authority of another Member State.

(d) The relevant Minister may provide by regulations, and (subject to any such regulations) the competent authorities may provide by rules and guidelines, for the appointment of authorised officers in accordance with this subsection.

(5) Where the European Commission conducts an inspection in the State under Article 20 or 21 of Regulation (EC) No. 1/2003 of 16 December 2002^6on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, the competent authority shall, where requested to do so by the European Commission, assist the European Commission in carrying out such an inspection.]

15AR. F82[Requests for the notification of preliminary objections and other documents

15AR.—(1) A competent authority may request a competition authority of another Member State to notify an undertaking or association of undertakings, on behalf of the competent authority, of—

(a) any preliminary objections that the undertaking or association of undertakings has infringed relevant competition law, or any decisions made by an adjudication officer undersection 15Xthat an infringement of relevant competition law has occurred or is occurring,

(b) any procedural act adopted in the context of enforcement proceedings which the undertaking or association of undertakings concerned is entitled to be notified of under the law of the State, and

(c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments, related to the application of relevant competition law insofar as the documents concern an infringement by the undertaking or association of undertakings referred by the competent authority.

(2) A competent authority shall, without undue delay following receipt of a request from a competition authority of another Member State and subject tosection 15AT(16), notify an undertaking or association of undertakings, on behalf of the requesting competition authority, of—

(a) any complaint that the undertaking or association of undertakings has infringed Article 101 or Article 102 of the Treaty on the Functioning of the European Union or any decisions made by the referring competition authority that an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union has taken place,

(b) any procedural act adopted in the context of enforcement proceedings of which the undertaking or association of undertakings concerned would be entitled to be notified under the law of the State,

(c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative fines or periodic penalty payments, related to the application of Article 101 or Article 102 of the Treaty on the Functioning of the European Union insofar as the documents concern an infringement by the undertaking or association of undertakings which has been referred by the referring competition authority.

(3) This section is without prejudice to any other form of notification made by a requesting competition authority in accordance with the law applicable in the Member State concerned.]

15AS. F83[Requests for the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments

15AS.—(1) A competent authority may request a competition authority of another Member State to enforce a decision of an adjudication officer undersection 15Xwhich has become final.

(2) A competent authority shall, without undue delay following receipt of a request of a competition authority in another Member State, take steps to enforce a final decision of that authority imposing administrative fines or periodic penalty payments adopted in accordance with Article 13 or 16 of the Directive.

(3)Subsection (2)shall apply only to the extent that the requesting competition authority has made reasonable efforts to ascertain that the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable does not have sufficient assets in the Member State of the requesting competition authority to enable recovery of such administrative fine or periodic penalty.

(4) In circumstances other than those set out insubsections (2)and(3)a competent authority may, subject to a request from a requesting competition authority, take steps to enforce a decision of that requesting competition authority to impose administrative fines or periodic penalty payments adopted in accordance with Articles 13 or 16 of the Directive including in circumstances where the undertaking or association of undertakings subject to such decision is not established in the Member State of the requesting competition authority.

(5)Section 15AT(3)(e)shall not apply to a request undersubsection (4).

(6)Subsections (2)and(4)shall apply only to decisions of the requesting competition authority that are not, or are no longer, capable of being appealed.

(7) (a) A competent authority to which a request has been made undersubsection (2)or(4)shall, subject tosection 15AT(16), on notice to the undertaking or undertakings concerned, apply to the High Court for confirmation that the competent authority may execute that request.

(b)Section 15AZshall apply, mutatis mutandis, to an application for confirmation under this subsection, save that—

(i)subsections (3),(4)and(8)of that section shall not apply, andsubsection (8)of this section shall apply, and

(ii)subsection (7)of that section shall not apply, and the Court shall make no order as to costs.

(c) Rules of court may make provision for applications for confirmation under this section, and for the expeditious hearing thereof and any such rules shall be in accordance with the procedure set out insection 15AZ.

(8) In an application undersubsection (7)for confirmation that a competent authority may execute a request to enforce the decision of a competition authority of another Member State, the High Court shall confirm that the competent authority may execute the decision unless—

(a) it considers that the request does not comply with the requirements ofsection 15AT, or

(b) the execution of the request would be manifestly contrary to the public policy of the State.

(9) Applications for the enforcement of a decision of a competition authority of another Member State undersubsections (2)and(4)shall be made within a period of 6 years from the date of the decision sought to be enforced.]

15AT. F84[General principles of cooperation

15AT.—(1) The requests referred to insections 15ARand15ASshall be executed by means of a notice which shall be accompanied by a copy of the preliminary objections, procedural act or other act, or a copy of the decision imposing administrative financial sanctions or periodic penalty payments to be notified or enforced, as the case may be.

(2) The notice referred to insubsection (1)shall indicate:

(a) the name and known address of the undertaking or association of undertakings concerned, and any other relevant information for the identification of the undertaking or association of undertakings concerned;

(b) a summary of the relevant facts and circumstances;

(c) a summary of the attached copy of the preliminary objections, procedural act or other act, or the attached copy of the decision imposing administrative fines or periodic penalty payments to be notified or enforced;

(d) the name, address and other contact details of the competent authority or of the requesting competition authority;

(e) the period within which notification or enforcement should be effected, such as statutory deadlines or limitation periods.

(3) A request undersection 15ASshall, in addition to the requirements set out insubsection (2), provide the following:

(a) information about the decision permitting enforcement in the Member State of the requesting competition authority;

(b) the date when the decision became final;

(c) in the case of an administrative financial sanction imposed by a competent authority, the amount of the administrative financial sanction;

(d) in the case of an administrative fine imposed by the requesting competition authority, the amount of the administrative fine;

(e) the amount of the periodic penalty payment;

(f) information showing the reasonable efforts made by the requesting competition authority to enforce the decision in its own territory.

(4) The competent authority shall take all necessary measures for the execution of the request under this section, subject tosubsection (16)andsection 15AS(8).

(5) The notice referred to insubsection (1)shall be in one of the official languages of the State, unless the competent authority and the requesting competition authority agree on a case-by-case basis that it may be in another official language of the European Union.

(6) When required by the competent authority, the requesting competition authority shall provide a translation of the matter to be notified or the decision permitting enforcement of the administrative fine or periodic penalty payment into one of the official languages of the State.

(7)Subsection (6)is without prejudice to the right of the competent authority and the requesting competition authority to agree on a case-by-case basis that such translation may be provided in another official language of the European Union.

(8) Where the High Court, on an application for confirmation undersection 15AS(7), declines to confirm a decision of a requesting competition authority in accordance withsection 15AS(8), the competent authority shall notify the requesting competition authority of that decision.

(9) The Court may, on an application for confirmation undersection 15AS(7), direct the competent authority to request additional information from the requesting competition authority.

(10) (a) The competent authority may request the reimbursement by the requesting competition authority of all reasonable additional costs in full, including translation, labour and administrative costs, that the competent authority has incurred in responding to requests made to the competent authority undersection 15AQ(2)or15AR(2).

(b) The competent authority shall, where requested to do so by the competition authority to whom the competent authority has made a request undersection 15AQ(1)or15AR(1), reimburse all reasonable additional costs in full, including translation, labour and administrative costs, incurred by that competition authority in relation to that request.

(11) The competent authority may recover the full costs that it has incurred in relation to actions taken to enforce a decision of a requesting competition authority undersection 15ASfrom the administrative fines or periodic penalty payments it has collected on behalf of such requesting competition authority, including translation, labour and administrative costs.

(12) Where, having taken steps to enforce a decision of a requesting competition authority in accordance withsection 15AS, the competent authority is unsuccessful in collecting the administrative fines or periodic penalty payments on behalf of such requesting competition authority, the competent authority may request the requesting competition authority to bear the costs that the competent authority has incurred in doing so.

(13) (a) The competent authority may recover the costs incurred in relation to the enforcement of a decision undersection 15ASfrom the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable.

(b) (i) Where the competent authority fails, within a reasonable period, to recover the costs incurred in relation to the enforcement of a decision undersection 15ASfrom the undertaking or association of undertakings against which the administrative fine or periodic payment is enforceable, the competent authority may initiate proceedings for recovery of same.

(ii) The High Court shall determine the costs of any such proceeding.

(14) The competent authority shall recover the amounts referred to in this section in euro.

(15) The competent authority shall, if necessary, convert the administrative fines or periodic penalty payments referred to in this section into euro at the rate of exchange applying on the date on which the administrative fines or periodic penalty payments were imposed.

(16) The competent authority may not give effect to a request undersection 15ARwhere—

(a) it considers that the request does not comply with the requirements of this section, or

(b) the execution of the request would be manifestly contrary to the public policy of the State.]

15AU. F85[Disputes concerning requests for notification or enforcement of decisions imposing administrative fines or periodic penalty payments

15AU.—(1) Disputes set out insubsection (2)—

(a) shall not be subject to the jurisdiction of the courts of the State, and

(b) where they are the subject of proceedings in the State, shall be resolved by application of the law of the Member State of the requesting competition authority.

(2) The disputes referred to insubsection (1)are those exclusively concerning one or more of the following:

(a) the lawfulness of an act to be notified in accordance withsection 15AR;

(b) the lawfulness of a decision to be enforced in accordance withsection 15AS;

(c) the lawfulness of the notice requesting enforcement in the State;

(d) limitation periods for the enforcement of administrative fines or periodic payments referred to insubsection (9) ofsection 15AS.

(3) A dispute concerning the enforcement measures taken in the State or concerning the validity of a notification made by the competent authority shall fall within the jurisdiction of the High Court and shall be governed by the law of the State.]

PART 2G Procedural provisions

15AV. Access to file by parties and limitations on the use of information

15AV.—(1) Where a competent authority or authorised officer requires a natural person to provide a statement or admission on the basis of measures referred to in applicable provisions, any such statement or admission may not be admissible in evidence against that person in criminal proceedings other than criminal proceedings for an offence under section 11(3)(d), 18(4)(c), 35(8)(c) or 36(6) of the Act of 2014, or an offence undersection 50(5)of this Act, or for perjury where such statement or admission was provided under oath.

(2) Subject tosubsection (3), and save in accordance with law, an adjudication officer, an authorised officer, a competent authority and its respective servants or agents shall not disclose to any person—

(a) any confidential information obtained by virtue of the exercise of powers conferred by or under this Act, or

(b) any information obtained by virtue of the exercise of powers conferred by or underPart 2Dor section 18 of the Act of 2014 in relation to an investigation under section 10(1)(c) of that Act where that information was given under power of compulsion.

(3) Notwithstandingsubsection (2)an adjudication officer, a competent authority and its servants or agents may disclose information obtained by virtue of the exercise of powers conferred by or under this Act where such disclosure is—

(a) permitted bysection 15AX,

(b) otherwise permitted by law, or

(c) duly authorised by the competent authority or an adjudication officer in the performance of his or her functions.

(4) Information provided to any person pursuant tosubsection (3)may contain such redactions as an adjudication officer or a competent authority may consider necessary and appropriate—

(a) to protect commercially sensitive information,

(b) to protect the rights of the parties or any other person, or

(c) for any other good and sufficient reason.

(5) A person who contravenessubsection (2)commits an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.

(6) Subject to this section, the competent authority shall not disclose, or otherwise grant access to, a leniency statement or a settlement submission to any person other than the undertaking or association of undertakings to which the statement or submission relates, other than where such disclosure or access is required to be provided to an undertaking or association of undertakings—

(a) that is a party to proceedings underPart 2Dor2E, or

(b) that is a party to proceedings underPart 2H, other than an undertaking or association of undertakings referred to insection 15AY(1)(b).

(7) Access to a leniency statement or a settlement submission shall only be granted to the undertaking or association of undertakings referred to insubsection (6)for the purpose of defending proceedings before the competent authority underPart 2Dor2Eor in any subsequent proceeding underPart 2H.

(8) Where an undertaking or association of undertakings referred to insubsection (6)has been given access to a leniency statement or a settlement submission for the purposes of exercising its right of defence undersubsection (7), the undertaking or association of undertakings concerned shall be deemed to have given an undertaking that any such information to which it has been given access shall only be used in proceedings that are directly related to those in which access has been granted, and shall not be retained, stored or otherwise kept following the end of those proceedings or any subsequent proceeding underPart 2H.

(9)Subsection (6)shall only apply where the proceedings concern—

(a) the allocation between cartel participants of an administrative financial sanction imposed jointly and severally on them in proceedings under this Act, or

(b) the review, underPart 2H, of a decision by which an infringement of relevant competition law was found by the competent authority.

(10) The following categories of information obtained by a party during investigations by a competent authority under this Act, or administrative sanctions proceedings before an adjudication officer under this Act, shall not be used by that party in proceedings before a court prior to the competent authority or an adjudication officer, as the case may be, having closed such proceedings with respect to all parties under investigation, whether by making a decision undersection 15Xor15AE:

(a) information that was prepared by persons specifically for investigations by the competent authority or administrative sanctions proceedings before an adjudication officer;

(b) information that the competent authority or an adjudication officer has drawn up and sent to the parties in the course of an investigation or administrative financial sanctions proceedings;

(c) settlement submissions that have been withdrawn.

(11) A leniency statement shall only be exchanged between a competent authority and the competition authority of another Member State or the European Commission pursuant to Article 12 of Regulation (EC) No 1/2003^7—

(a) with the consent of the applicant (within the meaning ofPart 2F),

(b) where the competition authority or the European Commission has also received a leniency application relating to the same infringement from the same applicant as the competent authority transmitting the leniency statement, or

(c) subject tosubsection (12), where the competent authority has also received a leniency statement relating to the same infringement from the same applicant as the European Commission or the competition authority transmitting the leniency statement.

(12)Subsection (11)(c)shall only apply where, at the time the leniency statement is sent, it is not open to the applicant to withdraw the information which it has submitted to the national competition authority receiving the leniency statement.

(13) The form in which the leniency statement is submitted undersection 15ALshall not affect the application ofsubsections (5)to(11).

(14) In this section, "applicable provisions" means—

(a) sections 18, 37(2)(d)(ii) and 37A of the Act of 2014, and

(b) sections 38A, 39(3A) and (3B) and 39A of the Act of 2002.]

15AW. F87[Admissibility of evidence

15AW.—(1) The types of proof that are admissible as evidence in proceedings under this Act (whether criminal or civil, including proceedings underPart 2andParts 2Cto2Fbefore a court or an adjudication officer) shall include relevant documents, oral statements, electronic messages, recordings and all other objects containing information, irrespective of the form it takes and the medium on which information is stored, provided that the proof would be admissible before a court.

(2) If a document contains a statement by a person referred to insubsection (3)asserting that an act has been done, or is or was proposed to be done, by another person, being an act (the "relevant act") that relates to—

(a) the entry into or the making or implementation of an agreement or decision, or the engaging in of a concerted practice, the subject of proceedings under this Act, or

(b) the doing of the act or acts that constitute an abuse of a dominant position, the subject of proceedings under this Act,

then, subject to the conditions specified insubsection (4)being satisfied, that statement shall be admissible as evidence in the proceedings referred to inparagraph (a)or(b)that the relevant act was done by that other person or was proposed (at the time the statement was made or, as the case may be, at a previous time) to be done by him or her.

(3) The first-mentioned person insubsection (2)is a person who has done an act of the kind referred to in that subsection in relation to the agreement, decision, concerted practice or abuse of dominant position concerned (whether or not the same act which the second-mentioned person referred to in that subsection is alleged to have done or proposed to do).

(4) The conditions mentioned insubsection (2)are that the document referred to in that subsection—

(a) has come into existence before the commencement of the proceedings under this Act in which it is sought to tender the document in evidence, and

(b) has been prepared otherwise than in response to any enquiry made or question put by a member or officer of the competent authority, a member of the Garda Síochána, an officer of the European Commission, or an authorised officer relative to any matter the subject of those proceedings.

(5) In estimating the weight, if any, to be attached to evidence admitted by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) Where the proof admitted in evidence by virtue of this section is comprised of a statement by a person—

(a) any evidence which, if the person who made the statement had been called as a witness, would have been admissible as relevant to his or her credibility as a witness shall be admissible for that purpose,

(b) evidence may, with the leave of the court or adjudication officer seised of the proceedings, be given of any matter which, if that person had been called as a witness, could have been put to him or her in cross-examination as relevant to his or her credibility but of which evidence could not be adduced by the cross-examining party, and

(c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) a statement which is inconsistent with it shall, if not already admissible by virtue of any rule of law or other enactment, be admissible for the purpose of showing that he or she has contradicted himself or herself.

(7) Nothing in this section shall prejudice the admissibility in any proceedings under this Act before a court or an adjudication officer of any document, as evidence of any matters stated in it—

(a) that is so admissible by virtue of this Act, any rule of law or any other enactment, or

(b) in respect of adjudication officers, that would be admissible before a Court hearing civil proceedings by virtue of this Act, any rule of law or any other enactment.

(8) The provisions of Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 shall apply to proceedings under this Act (whether criminal or civil, including proceedings underParts 2Cto2Hof this Act).]

15AX. F88[Confidentiality rings

15AX.—(1) Where, in accordance with a provision to which this section applies, a competent authority provides, or otherwise makes available, a document to any person or undertaking, the competent authority may notify the person or undertaking concerned that such document, or such part of the document as it may specify, is provided subject to this section.

(2) A document, or part of a document, provided subject to this section may not be viewed by, or shared with, any person other than one or more of the following, as the competent authority may specify:

(a) the person or undertaking to whom the document is provided or otherwise made available;

(b) a legal adviser, or other professional adviser, of the person or undertaking to whom the document is provided or otherwise made available;

(c) such other person as the competent authority may specify.

(3) This section applies to the following provisions:

(a)section 15L;

(b)Part 2E;

(c)Part 2F.

(4) A person who allows a document provided to the person subject to this section to be viewed by, or shared with, a person other than in accordance with this section shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.]

PART 2H Appeals, Confirmations and Judicial Review

15AY. Appeal against certain decisions

15AY.—(1) (a) (i) An undertaking or association of undertakings the subject of a decision undersection 15X(including a decision on the basis of which an Article 16(1) periodic penalty payment is imposed), other thansection 15X(8), may appeal to the Court against that decision not later than 28 working days after the undertaking or association of undertakings receives notice of such decision undersection 15Y.

(ii) An undertaking or association of undertakings the subject of an order on consent undersection 15X(8)may appeal to the Court against that decision not later than 12 working days after the undertaking or association of undertakings receives notice of such decision undersection 15Y.

(iii) A decision of an adjudication officer undersection 15Xshall not be questioned, including as to its validity, other than by way of an appeal under this section, and no proceedings questioning such a decision (including an application for judicial review referred to insection 15AAAor otherwise) may be brought before the courts other than an appeal under this section or an application for confirmation undersection 15AZ.

(b) An undertaking or association of undertakings affected by, but not the subject of, a decision undersection 15Xmay, not later than 14 working days after that decision is published, apply to the Court for leave to appeal to the Court against that decision.

(c) A notified undertaking may appeal to the Court against a prohibition notice not later than 12 working days after the notified undertaking was served with the prohibition notice.

(d) The respondent to an appeal under this section shall be the competent authority.

(2) (a) On application, the Court may extend the period within which an appeal may be brought undersubsection (1)(a)or(c), or within which an application for leave to appeal may be brought undersubsection (1)(b), where it is satisfied that—

(i) there is exceptional, good and sufficient reason for doing so,

(ii) the circumstances that resulted in the failure to bring an appeal within the period provided for insubsection (1)were outside the control of the applicant for the extension, and

(iii) if an application for confirmation has been brought undersection 15AZ—

(I) the Court has not heard the application for confirmation of the decision, and

(II) the Court has not determined the application for confirmation of the decision,

(b) Where an application for confirmation has been brought pursuant tosection 15AZthe Court may, upon application or of its own motion, stay the proceedings undersection 15AZ.

(c) (i) An application for leave undersubsection (1)(b)shall be made by motionex parteand shall be grounded in the manner specified in rules of court in respect of anex partemotion for leave.

(ii) The Court hearing theex parteapplication for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the competent authority or the undertaking or association of undertakings concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on aninter partesbasis, and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(iii) If the Court directs that the leave hearing is to be conducted on aninter partesbasis it shall be by motion on notice (grounded in the manner specified in the order in respect of anex partemotion for leave) to any person specified for that purpose by order of the Court.

(d) An undertaking or association of undertakings that appeals undersubsection (1), or makes an application undersubsection (14)—

(i) may include in such appeal or application, as the case may be, any ground that could, but forsection 15AAA(2), be relied upon by the notified undertaking in an application seeking judicial review, and

(ii) shall, on the same date as it makes such appeal or application, as the case may be, notify the respondent of the fact that it has made the appeal or application, and of the grounds on which it has made the appeal or application.

(e) The Court may—

(i) on the consent of all of the parties to an application for leave undersubsection (1)(b)(including notice parties), or

(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application as if it were the hearing of the appeal and may for that purpose adjourn the hearing on such terms as it may direct.

(f) The Court shall not grant leave undersubsection (1)(b)unless it is satisfied that—

(i) there are substantial grounds for contending that the decision concerned is invalid or ought to be quashed, including any of the grounds of challenge that could have been raised by the undertaking in judicial review proceedings but forsection 15AY(1)(a), and

(ii) the applicant is materially affected by the decision or otherwise has a sufficient interest in the matter which is the subject of the application.

(g) A sufficient interest for the purposes ofparagraph (f)(ii)of this subsection is not limited to a financial interest.

(h) If the Court grants leave to appeal undersubsection (1)(b), no grounds shall be relied upon in the appeal under the order other than those determined by the Court to be substantial underparagraph (f)(i)of this subsection.

(3) The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, issue directions in respect of the conduct of the appeal.

(4) An appellant shall, when making an appeal or an application for leave to appeal, precisely state all of the grounds in law and fact upon which the appeal is made and shall provide to the Court all of the documents and evidence which it is alleged support the granting of the appeal or upon which he or she intends to rely to support those grounds.

(5) A party to an appeal other than the appellant shall, when responding to an appeal, state all of the grounds upon which he or she responds to the appeal and provide to the Court all of the documents and evidence upon which he or she intends to rely to support those grounds.

(6) Subject tosubsection (7), a party to an appeal shall not be entitled during the course of an appeal to make submissions to the Court other than submissions related to the grounds stated, or documents and evidence provided, undersubsections (4)and(5).

(7) (a) The Court may, upon application and where it considers it necessary for the fair and proper determination of an appeal, require or permit a party to an appeal to—

(i) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided undersubsections (4)and(5), and

(ii) provide documents or evidence to the Court other than documents or evidence provided undersubsections(4)and(5),

(b) The Court shall refuse to consider submissions, documents or evidence where—

(i) the submissions, documents or evidence are not relevant to the appeal, or

(ii) it is considered appropriate so as to avoid undue repetition of submissions.

(c) Where the Court has granted leave to deliver additional submissions, documents or evidence in an application underparagraph (a), the Court shall give directions as to the scope, form and timeframe for delivery of such additional submissions, documents or evidence.

(d) The Court may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(8) The Court, on hearing an appeal undersubsection (1), may consider—

(a) whether the decision made is supported by the evidence including evidence admitted in accordance withsubsections (7)and(9),

(b) whether the law was correctly applied in reaching the decision,

(c) whether an appropriate and proportionate sanction or prohibition notice was imposed, and

(d) whether the jurisdiction existed to make the decision against which an appeal has been brought.

(9) (a) In considering an appeal, the Court—

(i) shall have regard to the record of the decision the subject of the appeal, and

(ii) shall have regard to any submissions, documents or evidence admitted undersubsection (7).

(b) The Court may draw inferences of fact in accordance with law.

(10) The Court may, on the hearing of an appeal undersubsection (1)—

(a) confirm the decision or prohibition notice the subject of the appeal, or

(b) where it is satisfied by reference to the grounds of appeal that a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error, was made in making the decision, or that the decision was made without complying with fair procedures—

(i) annul the decision in its totality or in part, and—

(I) remit the decision for reconsideration by the adjudication officer or competent authority as the case may be, subject to such directions as the Court considers appropriate and, in the case of a decision by an adjudication officer, including whether the decision should be reconsidered by another adjudication officer, or

(II) vary the decision and substitute such other decision as the Court considers appropriate,

and

(ii) direct how the costs of the appeal or the application for leave to appeal are to be borne.

(11) The Court shall, in determining an appeal or an application for leave to appeal undersubsection (1), act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals undersubsection (1)(c).

(12) Rules of court may make provision for the conduct of appeals under this section including—

(a) for the expeditious hearing thereof,

(b) for the procedures concerning the hearing of appeals and applications for leave to appeal,

(c) for the manner in which the issues on any such appeal or application for leave to appeal may be pleaded and evidence adduced in connection therewith, and

(d) for expedited hearings of appeals in respect of the imposition of a prohibition notice, or the imposition of a periodic penalty payment undersection 15X.

(13) The making of an appeal undersubsection (1)(c), or an application for leave to appeal undersubsection (1)(b), does not suspend the effect of the decision to which the appeal relates unless the Court, on application by the undertaking bringing the appeal, places a stay on the decision.

(14) Where an appeal is made undersubsection (1)(c)—

(a) the appellant may apply to the Court to have the effect of the prohibition notice suspended until such time as the appeal is determined, and

(b) the Court may, if it considers it appropriate to do so having regard to all the circumstances, order that the effect of the prohibition notice, or such particular effects as the Court may order, be suspended until the appeal is determined, or until such other time as the Court may order.

(15) Where the Court confirms, or substitutes its own decision for, the decision of an adjudication officer imposing an administrative financial sanction or periodic penalty payment, the Court may set a time limit for the payment of the administrative financial sanction or periodic penalty payment concerned.

(16) The Court may award the costs of an appeal in accordance withsubsection (9)ofsection 15X.

(17) In this section, "Court" means the High Court.]

15AZ. F90[Court confirmation of decision on certain administrative sanctions

15AZ.—(1) (a) Where an undertaking or association of undertakings does not, within the period provided for insection 15AY(1), appeal to the Court against a decision undersection 15Ximposing an administrative financial sanction, an Article 16(2) periodic penalty payment, a hearing requirement periodic penalty payment or structural or behavioural remedies, the competent authority shall, as soon as practicable after the expiration of the period allowed for an appeal undersection 15AY(1), make an application to the Court for the confirmation of that decision.

(b) The application underparagraph (a)may be made by the competent authority on anex partebasis provided that the undertaking or association of undertakings to which the application relates informs the competent authority in writing that it agrees to the application being madeex parte.

(2) (a) An application by the competent authority undersubsection (1)shall include the decision undersection 15Xtogether with the documents and evidence before the adjudication officer which are referred to in that decision, and may include any other documents and evidence which were before the adjudication officer.

(b) Notice of an application undersubsection (1)shall be served by the competent authority on the undertaking or association of undertakings the subject of a decision undersection 15Xwithin 7 working days of the competent authority lodging the application in Court.

(c) The notice referred to inparagraph (b)shall specify the time fixed by the Court for the hearing of the application, and shall enclose copies of all the papers lodged in Court in relation to the application undersubsection (1).

(3) The Court shall, on the hearing of an application undersubsection (1), confirm the decision the subject of the application unless the Court, on the basis of the findings of fact in the decision of the adjudication officer (which are to be accepted as final by the Court), determines that—

(a) the decision of the adjudication officer contains an error of law which is—

(i) manifest from the record of the decision, and

(ii) fundamental so as to deprive the decision of its basis,

or

(b) the sanction or remedy imposed was manifestly—

(i) disproportionate,

(ii) in excess of the sanction or remedy required to be dissuasive, or

(iii) in excess of the sanction or remedy required to be effective.

(4) The Court—

(a) where it makes a determination referred to insubsection (3)(a), or a determination undersubsection (3)(a)and(b), in relation to an application undersubsection (1), shall remit the matter for reconsideration by an adjudication officer, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(i) the adjudication officer should be limited to reconsidering a specific aspect of a decision made undersection 15X, and

(ii) the matter should be reconsidered by another adjudication officer,

or

(b) where it makes a determination referred to insubsection (3)(b), but not a determination referred to insubsection (3)(a), in relation to an application undersubsection (1), may—

(i) where the application does not relate to an order undersection 15X(8), order that a lower amount shall be substituted for the amount of the periodic penalty payment or administrative financial sanction specified in the decision, and confirm the decision subject to such substitution, and

(ii) where the Court does not make an order referred to insubparagraph (i)and considers that the interests of justice so require, remit the matter for reconsideration by an adjudication officer, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(I) the adjudication officer should be limited to reconsidering a specific aspect of a decision made undersection 15X, and

(II) the matter should be reconsidered by another adjudication officer.

(5) The Court shall hear the application undersubsection (1)on the evidence before the adjudication officer.

(6) The Court shall, in determining an application undersubsection (1), act as expeditiously as possible consistent with the administration of justice.

(7) (a) The Court may direct how the costs of an application under this section are to be borne.

(b) Without prejudice to the application by the Court of costs rules under other enactments (including the Rules of the Superior Courts), the Court may in its discretion award the costs of an application under this section as ifsection 15X(9)applied to an award of costs under this section.

(8) A decision made undersection 15Ximposing an administrative financial sanction, an Article 16(2) periodic penalty payment or structural or behavioural remedies in accordance withsection 15Zshall not have effect until the later of—

(a) where the Court does not grant leave to appeal to the Court of Appeal undersection 15AAB—

(i) where an appeal is not brought within the time for appealing against that decision undersection 15AY, the date on which the Court makes an order under this section confirming the decision, or

(ii) where an appeal undersection 15AYhas been brought, the date on which the Court confirms the decision in accordance withsubsection (10)of that section,or

(b) where the Court grants leave to appeal to the Court of Appeal undersection 15AAB—

(i) the date on which any appeal to the Court of Appeal undersection 15AABand further appeal in relation to the decision has been decided, or has otherwise ended, without the decision being overturned, annulled or otherwise prevented from coming into effect by order of the Court of Appeal,

or

(ii) the date on which the time for appealing against the result of the appeal undersection 15AABhas expired without an appeal having been brought.

(9) Rules of court may make provision for the conduct of applications for confirmation under this section, and for the expeditious hearing thereof.

(10) Where the Court confirms, or substitutes its own decision for, the decision of an adjudication officer imposing an administrative financial sanction or an Article 16(2) periodic penalty payment the Court may set a time limit for the payment of the administrative financial sanction or Article 16(2) periodic penalty payment concerned.

(11) In this section, "Court" means the High Court.]

15AAA. F91[Judicial review

15AAA.—(1) (a) An adjudication officer may, on her or his own initiative or at the request of the competent authority or an undertaking or association of undertakings the subject of a referral undersection 15M, refer to the Court for decision by way of case-stated a question of law arising at a hearing on a referral undersection 15M.

(b) Where a question has been referred undersubsection (1), the adjudication officer shall not, in relation to a referral undersection 15Mto which the hearing relates—

(i) make a decision undersection 15Xto which the question is relevant while the reference to the Court is pending, or

(ii) proceed in a manner, or make a decision undersection 15X, that is inconsistent with the Court’s opinion on the question.

(c) Where a question is referred to the Court undersubsection (1)—

(i) the adjudication officer shall send to the Court all documents before the adjudication officer that are relevant to the matter in question, and

(ii) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the adjudication officer.

(2) The validity of a decision made or an act done by a competent authority (including an authorised officer and an adjudication officer) in the performance of a function underParts 2Cto2G(whether such function is performed by way of powers conferred by or under this Act, the Act of 2014 or the Act of 2002) shall not be questioned other than—

(a) by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (in this section referred to as "Order 84"), and in accordance with this section, or

(b) in accordance with a process provided for in this Act (includingsection 15AY(1)), the Act of 2002 or the Act of 2014 by which the validity of such decision or act may be questioned.

(3) At any time after the bringing of an application for leave to apply for judicial review of any decision or other act to whichsubsection (2)applies and which relates to a matter for the time being before the competent authority (including a matter before an adjudication officer), the competent authority may apply to the Court to stay the proceedings pending the making of a decision by the competent authority (including a decision by an adjudication officer) in relation to the matter concerned.

(4) On the making of such an application, the Court may, where it considers that the matter before the competent authority (including an adjudication officer and an authorised officer) is within the jurisdiction of the competent authority (including an adjudication officer and an authorised officer), make an order staying the proceedings concerned on such terms as it thinks fit.

(5) Subject tosubsection (6), an application for leave to apply for judicial review under Order 84 in respect of a decision or other act to whichsubsection (2)applies shall be made—

(a) in respect of decisions or other acts underParts 2C, 2Dand2G, not later than 28 working days, or

(b) in respect of decisions or other acts underParts 2Eand2F, not later than 8 weeks,

from the date on which the notice of the decision or act was first sent or published as the case may be or, if notice of the decision or act was not sent or published, from the date on which the undertaking or person became aware of the decision or act.

(6) The Court may extend the period provided for insubsection (5)within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

(7) References in this section to Order 84 shall be construed as including references to Order 84 as amended or replaced (with or without modification) by rules of court.

(8) (a) An application for leave under this section shall be made by motionex parteand shall be grounded in the manner specified in Order 84 in respect of anex partemotion for leave.

(b) The Court hearing theex parteapplication for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the competent authority or the undertaking or association of undertakings concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on aninter partesbasis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(c) If the Court directs that the leave hearing is to be conducted on aninter partesbasis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of anex partemotion for leave)—

(i) if the application relates to a decision made or other act done by a competent authority (including an adjudication officer and an authorised officer) in the performance or purported performance of a function under this Act, the Act of 2002 or the Act of 2014, to the competent authority (including an adjudication officer and an authorised officer) concerned, and

(ii) to any other person specified for that purpose by order of the Court.

(9) The Court may—

(a) on the consent of all of the parties, or

(b) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.

(10) The Court shall not grant leave under this section unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed,

(b) the applicant is materially affected by or has a sufficient interest in the matter which is the subject of the application, and

(c) the matter does not relate to a decision by an adjudication officer undersection 15X.

(11) If the Court grants leave under this section, no grounds shall be relied upon in the application for judicial review under Order 84 other than those determined by the Court to be substantial undersubsection (10)(a).

(12) The Court may, as a condition for granting leave under this section, require the applicant for such leave to give an undertaking as to damages.

(13) If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to whichsubsection (2)applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.

(14) The Court shall, in determining an application under this section or an application for judicial review on foot of such leave—

(a) act as expeditiously as possible consistent with the administration of justice, and

(b) give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.

(15) Rules of court may make provision for the expeditious hearing of references to the Court by adjudication officers undersubsection (1), for applications for leave under this section and applications for judicial review on foot of such leave.

(16) In this section, "Court" means the High Court.]

15AAB. F92[Appeals to the Court of Appeal

15AAB.—(1) An appeal to the Court of Appeal shall lie in respect of a determination of the High Court on an appeal undersection 15AYin respect of a decision by an adjudication officer undersection 15X.

(2) The determination of the High Court on—

(a) an appeal undersection 15AYagainst a prohibition notice,

(b) an application for confirmation undersection 15AZ,

(c) an application for confirmation undersection 15AS(7),

(d) an application for judicial review of any other decision made or act done under this Act by the competent authority (including decisions made or acts done under this Act by an authorised officer or by an adjudication officer), or

(e) a reference to the Court by way of case-stated by an adjudication officer undersection 15AAA(1),

shall be final and no appeal shall lie from the decision of the High Court to the Court of Appeal in any such case save with leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be made to the Court of Appeal.

(3) In respect of an application for confirmation undersection 15AZ, where the point of law which would otherwise be certified is a point that could have been brought by way of an appeal undersection 15AY, the High Court may only in exceptional circumstances grant leave to appeal to the Court of Appeal undersubsection (2).

(4) (a)Subsection (2)shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the Constitution.

(b) Nothing insubsection (2)shall be construed as preventing or restricting a competent authority from bringing an appeal against a refusal of the District Court to issue a warrant under section 37 of the Act of 2014 or section 39, 40 or 40A of the Act of 2002.

(5) On an appeal from a determination of the High Court to whichsubsection (2)applies, the Court of Appeal shall—

(a) have jurisdiction to determine only the point of law certified by the High Court undersubsection (2)(and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

(6) Nothing in this section shall affect the jurisdiction of the Supreme Court.

(7) Except in the case of an appeal against the imposition, or the amount, of an administrative financial sanction, the making of an appeal under this section does not suspend the effect of the decision to which the appeal relates unless a court so directs (including upon an application undersection 15AY(14)).

(8) Rules of court may make provision for the expeditious hearing of appeals under this section to the Court of Appeal and otherwise under this Act to the Supreme Court.]

15AAC. F93[Conduct of proceedings

15AAC.—The whole or part of any court proceedings under this part and of any appeal against any order of court may be heard otherwise than in public if the court seised of the proceedings or appeal, in the interests of justice, considers that it would be appropriate in the circumstances to hold the hearing or part of the hearing otherwise than in public.]

15AAD. F94[Treatment of amounts paid in respect of administrative financial sanctions

15AAD.—A payment received by the competent authority of any amount due to it pursuant to a decision confirmed or replaced undersection 15AYor confirmed undersection 15AZor pursuant to a decision undersection 15Xin respect of periodic penalty payments shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.]

15AAE. F95[Recovery of amounts of administrative financial sanctions and periodic penalty payments due

15AAE.—The competent authority may recover as a simple contract debt in any court of competent jurisdiction, any administrative financial sanction or periodic penalty payment imposed under this Act.]

PART 3 Mergers and Acquisitions

16. Mergers and acquisitions for the purposes of Act.

16.—(1) For the purposes of this Act, a merger or acquisition occurs if—

(a) 2 or more undertakings, previously independent of one another, merge, or

F96[(b) one or more individuals who already control one or more undertakings, or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings, or, and]

F96[(c) the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed, and for the purposes of this paragraph "assets" includes goodwill.]

(2) For the purposes of this Act, control, in relation to an undertaking, shall be regarded as existing if, by reason of securities, contracts or any other means, or any combination of securities, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the undertaking and, in particular, by—

(a) ownership of, or the right to use all or part of, the assets of an undertaking, or

(b) rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.

(3) For the purposes of this Act, control is acquired by an individual or other undertaking if he or she or it—

(a) becomes holder of the rights or contracts, or entitled to use the other means, referred to in subsection (2), or

(b) although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.

(4) The creation of a joint venture to perform, F96[on a lasting basis], all the functions of an autonomous economic entity shall constitute a merger falling within subsection (1)(b).

(5) In determining whether influence of the kind referred to in subsection (2) is capable of being exercised regard shall be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made.

(6) For the purposes of this Act, a merger or acquisition shall not be deemed to occur if—

(a) the person acquiring control is a receiver or liquidator acting as such or is an underwriter or jobber acting as such, or

(b) all of the undertakings involved in the merger or acquisition are, directly or indirectly, under the control of the same undertaking, or

(c) control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy, or

(d) control is acquired by an undertaking referred to in subsection (7) in the circumstances specified in subsection (8).

(7) The undertaking mentioned in subsection (6)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others.

(8) The circumstances mentioned in subsection (6)(d) are that the control concerned is constituted by the undertaking's holding, on a temporary basis, securities acquired in another undertaking and any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists, is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities and not for the purpose of determining the manner in which any activities of the other undertaking, being activities that could affect competition in markets for goods or services in the State, are carried on.

F97[(8A)Subsection (6)shall not apply where the undertaking referred to insubsection (7)has acquired control on the basis of the future onward sale of the business to an ultimate buyer, in circumstances where the ultimate buyer bears the major part of the economic risks.]

(9) In subsection (8) “specified period” means—

(a) the period of 1 year from the date on which control of the other undertaking was acquired, or

(b) if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Authority determines and specifies with respect to that case.

17. F98[Application of sections 18 to 22

17.—(1) Sections 18 to 22 are subject toPart 3A(inserted bysection 74of the Competition and Consumer Protection Act 2014).

(2) Notwithstandingsubsection (1), any commitments or conditions in a determination made under this Part shall not be revoked or amended by the Minister for Communications, Energy and Natural Resources in his or her determination underPart 3A.

(3) The Minister for Communications, Energy and Natural Resources may however impose additional conditions in his or her determination underPart 3A.]

18. Obligation to notify certain mergers and acquisitions.

18.—F99[(1) Where—

(a) in relation to a proposed merger or acquisition, in the most recent financial year—

(i) the aggregate turnover in the State of the undertakings involved is not less thanF100[€60,000,000], and

(ii) the turnover in the State of each of 2 or more of the undertakings involved is not less thanF100[€10,000,000], or

(b) a proposed merger or acquisition falls within a class of merger or acquisition specified in an order undersubsection (5),

each of the undertakings involved in the merger or acquisition shall notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect.

(1A) A notification undersubsection (1)—

(a) shall be made before the proposed merger or acquisition is put into effect, and

(b) may be made after any of the following applicable events occurs:

(i) one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted;

(ii) the undertakings involved demonstrate to the Commission a good faith intention to conclude an agreement or a merger or acquisition is agreed;

(iii) in relation to a scheme of arrangement, a scheme document is posted to shareholders.]

(2) For the purpose of subsection (1)—

(a) “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,

(b) subject to paragraph (c) an undertaking shall not be deemed to be involved in a merger or acquisition by virtue only of its being the vendor of any securities or other property involved in the merger or acquisition, and

(c) in relation to a merger or acquisition that will occur by reason of the acquisition concerned being an acquisition referred to in section 16(1)(c)—

F101[(i)subparagraphs (i)and(ii)ofsubsection (1)(a), in their application to the part of an undertaking mentioned insection 16(1)(c), shall apply as if the references to turnover in the State were, in relation to that part of an undertaking, references to turnover in the State generated from the assets of that part of an undertaking that are the subject of the acquisition mentioned insection 16(1)(c),]

F101[(ii) notwithstandingparagraph (b), that part of an undertaking mentioned insection 16(1)(c)shall, for the purposes ofparagraph (a)or(b)ofsubsection (1)but not so as to place on it an obligation to notify the Commission of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition.]

F102[(3) In the case of a proposed merger or acquisition that is not required to be notified undersubsection (1), any of the undertakings involved in the merger or acquisition may, before putting the merger or acquisition into effect, notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect, and such notification may be made after any of the applicable events referred to inparagraph (b)ofsubsection (1A)occurs.]

F103[(3A) Any of the undertakings involved in a merger or acquisition that—

(a) is not required to be notified undersubsection (1), and

(b) was not notified undersubsection (3),

may notify the Commission in writing of the merger or acquisition after it has been put into effect, and provide full details of the merger or acquisition concerned.

(3B) The Commission may review any notification made to it undersubsection (3)or(3A)and may, in relation to such notification, take interim measures.]

(4) Nothing in this section or any other provision of this Act prejudices the operation of F102[the Council Regulation].

(5) Where he or she is of opinion that the exigencies of the common good so warrant, the Minister may, after consultation with the Authority, by order specify a class or classes of merger or acquisition for the purposes of subsection (1)(b).

(6) The Minister may by order amend or revoke an order under subsection (5) or a previous order under this subsection.

(7) Every order under this section shall have effect on and from the date on which it is made and shall be laid before each House of the Oireachtas as soon as may be after it is made; if a resolution confirming the order is not passed by each such House within the next 21 days after that House has sat after the order is laid before it, the order shall lapse, but without prejudice to the validity of anything previously done thereunder.

(8) A notification in accordance with this section shall be accompanied by such fee as may be prescribed and different fees may be prescribed for different classes of notification; if the notification is not accompanied by that fee the notification shall be invalid.

(9) Where there is a contravention of F101[subsection (1),section 18A(1)orsection 20(2)an undertaking, the person in control of an undertaking, or (in the case ofsection 20(2)) other person], which has failed to notify the Authority within the specified period or failed to supply the information required within the period specified by the Authority, as the case may be, shall be guilty of an offence and shall, subject to subsection (10), be liable—

(a) on summary conviction, to a fine not exceeding €3,000,

(b) on conviction on indictment, to a fine not exceeding €250,000.

(10) Subsection (9) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, F102[the undertaking or person] referred to in that subsection is guilty of a separate offence under that subsection for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (9) shall have effect as if—

(a) in paragraph (a), “€300” were substituted for “€3,000”,

(b) in paragraph (b), “€25,000” were substituted for “€250,000”.

(11) For the purposes of subsection (9) the person in control of an undertaking is—

(a) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,

(b) in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention,

(c) in the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the contravention.

(12) A notification for the purposes of subsection (1) or (3) shall not be valid where any information provided or statement made under subsection (1) or (3) or section 20(2) is false or misleading in a material respect, F104[or if the Commission is of the opinion that the full details required undersubsection (1)or(3), or all the specified information requested undersection 20(2), have not been provided,] and any determination under this Part made on foot of such notification is void.

F104[(12A) Notwithstandingsection 19(2), the Commission may, for the purposes of this Part, request or accept notification of a merger or acquisition to whichsubsection (1)applies but which was purported to have been put into effect without having been notified in accordance with that subsection.]

(13) The transmission to the Authority by F105[the European Commission] of a copy of a notification made to the Commission under F102[the Council Regulation] shall constitute a notification under subsection (1) in relation to the merger or acquisition concerned.

(14) Irrespective of the date on which F105[the European Commission] transmits a copy of the notification referred to in subsection (13), the date of receipt by the Authority of F106[that Commission’s] decision under F102[the Council Regulation] in relation to the merger or acquisition, the subject of the notification, shall be deemed to be the date of the notification for the purposes of this Act.

F103[(15) Summary proceedings in relation to an offence undersubsection (9)may be brought by the Commission.]

18A. F107[Power to require notification of below threshold mergers or acquisitions

18A.—(1) This section applies to a merger or acquisition that—

(a) is not required to be notified undersection 18(1),

(b) has not been notified to the Commission undersection 18(3)or18(3A), and

(c) may, in the opinion of the Commission, have an effect on competition in markets for goods or services in the State.

(2) In relation to a merger or acquisition to which this section applies, the Commission may require, in accordance withsubsection (3), each of the undertakings involved in the merger or acquisition to notify the Commission in writing, and provide full details, of the merger or acquisition and an undertaking of which such a requirement is made shall comply with the requirement.

(3) A requirement undersubsection (2)shall—

(a) be made by notice in writing served on each of the undertakings involved in the merger or acquisition,

(b) specify a period within which the undertakings involved in the merger or acquisition shall submit a notification to the Commission, and

(c) be made by the Commission no later than 60 working days after the earliest of the following dates:

(i) the date on which one of the undertakings involved in the merger or acquisition publicly announces an intention to make a public bid or a public bid is made but not yet accepted;

(ii) the date on which the Commission becomes aware that the undertakings involved in the merger or acquisition have entered into an agreement the result of which will, if the agreement is implemented, be that the merger or acquisition occurs;

(iii) the date on which the merger or acquisition is put into effect.