Competition Act 2002

(4) Where an undertaking of which a requirement is made undersubsection (2)requests in writing, before the expiration of—

(a) the period specified in the requirement, or

(b) such period as stands extended from time to time in accordance with this subsection,

an extension to the period within which it is required to notify the merger or acquisition concerned to the Commission, the Commission may, where it considers it appropriate to do so, extend that period, and an undertaking in respect of which such an extension is granted shall comply with the requirement within the period as so extended.

(5) (a) Subject toparagraph (b),sections 18(8),18(12),19,20,21and22shall apply to a notification undersubsection (2)as if it were a notification undersection 18(1).

(b) Where a merger or acquisition to which this section applies has already been put into effect at the time a requirement is made under this section,subsections (1)to(5)ofsection 19shall not apply to the merger or acquisition.

(6) Where an undertaking does not comply with a requirement to notify a merger or acquisition undersubsection (2)within the period specified in the requirement, the Commission may, in relation to the merger or acquisition, do one or more of the following:

(a) examine the merger or acquisition in accordance withsection 20as if a notification had been received by the Commission in respect of it on the last day of the period specified in the requirement undersubsection (1);

(b) where the Commission considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State, impose interim measures and the provisions ofsection 18Bwill apply mutatis mutandis to any measures so imposed.]

18B. F108[Power to impose interim measures in respect of certain mergers and acquisitions

18B.—(1) Where the Commission—

(a) has been notified of a merger or acquisition undersection 18(1),18(3),18(3A),18(12A)or18A, and

(b) considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State,

it may impose an interim measure on one or more undertakings involved in the merger or acquisition.

(2) Where the Commission imposes an interim measure undersubsection (1), it shall by notice in writing served on the undertaking on which the measure is imposed—

(a) set out the nature of the interim measure or interim measures imposed, and

(b) specify the period for which the interim measure shall remain in force, which may include such period as is required for the Commission to make a determination undersection 21orsection 22in relation to the merger or acquisition.

(3) Where an interim measure has been imposed on an undertaking in accordance with this section, the Commission may, at any time before the expiry of the period referred to insubsection (2)(b), by notice in writing served on the undertaking on which the interim measure was imposed, vary or revoke the interim measure (including by specifying a period other than the period specified in the original interim measure) and, in the case of an interim measure that is varied, the interim measure shall apply on the terms set out in such notice.

(4) Where an undertaking fails to comply with an interim measure imposed on it in accordance with this section, the undertaking, or a person in control of the undertaking (within the meaning ofsection 18(11)), shall be guilty of an offence and shall, subject tosubsection (5), 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.

(5)Subsection (4)operates so that if the contravention concerned continues one or more days after the date of its first occurrence, 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 (4)will have effect as if—

(a) inparagraph (a)of that subsection, “€300” were substituted for “€3,000”, and

(b) inparagraph (b)of that subsection, “€25,000” were substituted for “€250,000”.

(6) In this Part, "interim measure" means a measure that is imposed by the Commission in accordance with this section requiring an undertaking involved in a merger or acquisition—

(a) to refrain from taking any step, or such steps as may be specified by the Commission, towards putting the merger or acquisition into effect, or from further putting it into effect, or

(b) to take such actions as may be specified by the Commission for the purpose of mitigating the impact of any step already taken by such undertaking towards putting the merger or acquisition into effect,

and without prejudice to the generality of the foregoing includes—

(i) imposing on the undertaking obligations as to the carrying on of any activities or the safeguarding of any assets,

(ii) providing for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the measure) or in any other manner, and

(iii) imposing obligations preventing the undertaking from—

(I) closing or selling sites,

(II) selling or failing to maintain equipment,

(III) degrading service levels,

(IV) terminating the employment of key employees,

(V) integrating IT systems,

(VI) failing to participate in a tender process,

(VII) discontinuing products, or

(VIII) exchanging confidential commercially sensitive information.

19. Limitation on merger or acquisition being put into effect.

19.—(1) A merger or acquisition to which paragraph (a) or (b) of section 18(1) applies, or which is referred to in subsection (3) of section 18 and has been notified to the Authority in accordance with that subsection, F109[or in relation to which the Commission has made a requirement undersection 18A(1)before it is put into effect,] shall not be put into effect until—

(a) subject to subsection (3), the Authority, in pursuance of section 21 or 22, has determined that the merger or acquisition may be put into effect, or

(b) the Authority has made a conditional determination in relation to the merger or acquisition, or

(c) subject to subsection (4), the period specified in subsection (2) of section 21 has elapsed without the Authority having informed the undertakings which made the notification concerned of the determination (if any) it has made under paragraph (a) or (b) of that subsection (2), or

(d) subject to subsection (5), F110[120 working days after the appropriate date have elapsed, or, where a requirement was made undersection 20(2), 120 working days and any period of suspension that applied pursuant tosection 22(4A)after the appropriate date have elapsed] without the Authority having made a determination under section 22 in relation to the merger or acquisition,

whichever first occurs.

F111[(2) Any such merger or acquisition which purports to be put into effect, where that putting into effect contravenessubsection (1), is void and shall remain void—

(a) until the Commission informs the undertakings which made the notification that the merger or acquisition may be put into effect in accordance withsection 21(2)(a), or

(b) where the Commission makes a determination pursuant tosection 21(2)(b)to carry out an investigation undersection 22in relation to the merger or acquisition, until a determination is issued underparagraph (a)or(c)ofsection 22(3).]

(3) Notwithstanding subsection (1)(a), the determination referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 12 months after the date on which the determination is made.

(4) Notwithstanding subsection (1)(c), the failure by the Authority to inform the undertakings concerned of the matter referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 13 months after the appropriate date.

(5) Notwithstanding subsection (1)(d), the absence of a determination by the Authority in the circumstances referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of F110[12 months after the relevant period referred to insubsection (1)(d)has elapsed].

(6) In this section “appropriate date” means—

F112[(a) unlessparagraph (b)applies, the date of receipt by the Commission of the notification of the merger or acquisition concerned undersection 18(1),

(aa) notwithstandingsubsection (8), and unlessparagraph (b)applies, the date of receipt by the Commission of the first notification of a merger or acquisition undersection 18(3),]

(b) if the Authority has, under section 20(2), made, within F110[30 working days] from the date of receipt by it of F111[a notification of a merger or acquisition, a requirement or requirements of one or more of the undertakings involved in such merger or acquisition]—

(i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest,

(ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying—

(I) subparagraph (i) to the requirement or requirements complied with, and

(II) subparagraph (ii) to the requirement or requirements not complied with.

F109[(6A) For the purposes ofsubsection (6), a requirement made undersection 20(2)shall be deemed to be complied with on and from the date on which the Commission was provided with a certification undersection 20(2)(b)(ii)where—

(a) the Commission confirms, by way of a notification undersection 20(2)(c), that it is satisfied that the requirement to which the certification relates has been complied with, or

(b) the Commission does not issue a notification undersection 20(2)(c)within 10 working days of being provided with the certification.

(6B) Where the Commission confirms, by way of a notification undersection 20(2)(c), that it is not satisfied that a requirement to which the certification relates has been complied with—

(a) the requirement shall be deemed not to be complied with for the purposes ofsubsection (6A), and

(b) the Commission may request additional information relating to that requirement from the person or undertaking of whom the requirement was made.

(6C) Where, having received additional information requested undersubsection (6B), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes ofsubsection (6A)on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.]

F110[(7) The reference, in the definition of "appropriate date" insubsection (6), and insection 22(4A), to the period specified in a requirement, is a reference to—

(a) the period specified in the requirement as being the period within which the information concerned shall be supplied, and

(b) where a requirement has been extended undersection 20(2A)orsection 20(2B), the date specified in the requirement as so extended.]

(8) For the purpose of the reference in subsection (6), and in any other provision of this Act, to the date on which the Authority receives a notification under section 18, if a single notification is not made by all the undertakings concerned, the said reference shall be construed as a reference to the later or latest of the dates on which a notification of the merger or acquisition concerned under section 18 is received by the Authority.

(9) Subsection (8) is without prejudice to section 18(14).

F109[(10) Where a merger or acquisition is put into effect, or purports to be put into effect, in contravention ofsubsection (1)the undertaking or undertakings that have put the merger or acquisition into effect, or the person in control of such undertaking (within the meaning ofsection 18(11)), shall be guilty of an offence and shall, subject tosubsection (11), 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.

(11)Subsection (10)operates so that if the contravention concerned continues one or more days after the date of its first occurrence, 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 (10)shall have effect as if—

(a) inparagraph (a)of that subsection, "€300" were substituted for "€3,000", and

(b) inparagraph (b)of that subsection, "€25,000" were substituted for "€250,000".]

20. Examination by the Authority of notification.

20.—(1) In respect of a notification received by it, the Authority—

(a) shall, unless the circumstances involving the merger or acquisition are such that the Authority considers it would not be in the public interest to comply with this paragraph—

(i) cause a notice of the notification to be published within 7 days after the date of receipt of it,

(ii) consider all submissions made, whether in writing or orally, by the undertakings involved in the merger or acquisition or by any individual or any other undertaking,

(b) may enter into discussions with the undertakings involved in the merger or acquisition or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the merger or acquisition on competition in markets for goods or services, and

(c) shall form a view as to whether the result of the merger or acquisition would be to substantially lessen competition in markets for goods or services in the State.

F114[(2) (a) Where the Commission is of the opinion that it requires, in order to consider a merger or acquisition for the purposes of this Part, further information from—

(i) any one or more of the undertakings involved in the merger or acquisition, or

(ii) any other person or undertaking that it considers may have information relevant to the Commission’s consideration of the merger or acquisition,

it may require, by notice in writing served on that person or that undertaking, to provide to it, within such period as it specifies, specified information that is in the power or control of that person or that undertaking.

(b) Where the Commission makes a requirement of a person or undertaking underparagraph (a)—

(i) the person or undertaking of whom such a requirement is made shall comply with it, and

(ii) the following person shall certify in writing that, to the best of his or her knowledge and belief, the person or undertaking has complied with a requirement under this section:

(I) where the undertaking is a body corporate, a director or other similar officer of the undertaking or a person who purports to act in such capacity;

(II) where the undertaking is a partnership, a partner in the partnership;

(III) in the case of a form of undertaking other than a body corporate or a partnership, the individual in control of the undertaking;

(IV) where the request is made of a natural person, the person.

(c) The Commission shall, within 10 working days from the date on which it is provided with a certification underparagraph (b)(ii), notify the person providing that certificate whether or not it is satisfied that the requirement to which the certification relates has been complied with.]

F114[(2A) If, before the expiration of the period specified in a notice undersubsection (2), an undertaking on which, or person on whom, the notice was served requests, in writing, an extension to the specified period, the Commission may, where it considers it appropriate to do so, extend that period, and where such an extension is granted that undertaking or person shall comply with the requirement undersubsection (2)within the specified period as so extended.]

F113[(2B) The Commission, pursuant to a request fromF114[an undertaking or person referred to insubsection (2A)], and where it considers it appropriate to do so, may further extend the period as extended undersubsection (2A)or this subsection.]

(3) In the course of the Authority's activities under subsection (1)(b), any of the undertakings involved in the merger or acquisition concerned may submit to the Authority proposals of the kind mentioned in subsection (4) with a view to the proposals becoming binding on it or them if the Authority takes the proposals into account and states in writing that the proposals form the basis or part of the basis of its determination under section 21 or 22 in relation to the merger or acquisition.

(4) The proposals referred to in subsection (3) are proposals with regard to the manner in which the merger or acquisition may be put into effect or to the taking, in relation to the merger or acquisition, of any other measures referred to in subsection (1)(b).

21. Determination of issues concerned without full investigation, etc.

21.—(1) In this section “appropriate date” has the same meaning as it has in section 19.

(2) In respect of a notification received by it, the Authority shall, within F115[30 working days] after the appropriate date, inform the undertakings which made the notification and any individual or any other undertaking from whom a submission concerning the notification was received of whichever of the following determinations it has made, namely—

(a) that, in its opinion, the result of the merger or acquisition will not be to substantially lessen competition in markets for goods or services in the State and, accordingly, that the merger or acquisition may be put into effect, or

(b) that it intends to carry out an investigation under section 22 in relation to the merger or acquisition.

(3) Where the Authority makes a determination referred to in paragraph (a) or (b) of subsection (2), it shall publish that determination, with due regard for commercial confidentiality, within F115[60 working days] after the making of the determination.

(4) If any of the undertakings which have made the notification concerned submits to the Authority proposals to which section 20(3) applies, then subsection (2) shall have effect as if “F115[45 working days]” were substituted for “F115[30 working days]” in that subsection.

22. Determination of issues concerned on foot of full investigation.

22.—(1) In this section “appropriate date” has the same meaning as it has in section 19.

(2) Having considered a notification made to it, the Authority may decide that it shall carry out an investigation (in this section referred to as a “full investigation”) in relation to the merger or acquisition concerned.

(3) On completion of a full investigation in relation to the merger or acquisition concerned, the Authority shall make whichever of the following determinations it considers appropriate, namely that the merger or acquisition—

(a) may be put into effect,

(b) may not be put into effect, or

(c) may be put into effect subject to conditions specified by it being complied with,

on the ground that the result of the merger or acquisition will or will not, as the case may be, be to substantially lessen competition in markets for goods or services in the State or, as appropriate, will not be to substantially lessen such competition if conditions so specified are complied with.

F116[(3A) Where, on completion of a full investigation in relation to a merger or acquisition—

(a) that has been put into effect without the Commission having issued a determination undersection 21(2)(a)or22(3)(a)or(c), and

(b) that is a merger or acquisition—

(i) to whichparagraph (a)or(b)ofsection 18(1)applies, or

(ii) that has been notified to the Commission in accordance withsection 18(3),18(3A)or18A(1),

the Commission finds that the result of the merger or acquisition will be to substantially lessen competition in markets for goods or services in the State, the Commission may—

(I) determine that the merger or acquisition should be unwound or dissolved, and the manner in which such unwinding or such dissolution shall occur, including through the dissolution of the merger or the disposal of all the shares or assets acquired, so as to restore the situation prevailing prior to the merger or acquisition being put into effect, or

(II) where it is not possible to unwind or dissolve the merger or acquisition, determine that the undertakings involved in the merger or acquisition shall take such steps as are appropriate to achieve restoration as far as practicable of the situation prevailing before the merger or acquisition was put into effect.]

(4) Where the Authority makes a determination under subsection (3), it shall reduce the determination to writing (and the determination in that form is referred to in paragraph (a) and subsection (7) as a “written determination”) and—

(a) furnish to the undertakings which made the notification a copy of the written determination within F117[120 working days] after the appropriate date, and

(b) publish the determination, with due regard for commercial confidentiality, within F117[60 working days] after the making of the determination.

F118[(4A) Notwithstandingsubsection (4)(a), if the Commission has, undersection 20(2), made, not later than 30 working days from the date of its determination undersection 21(2)(b),F119[a requirement or requirements of an undertaking involved in the merger or acquisition concerned], the period of 120 working days referred to insubsection (4)(a)shall stand suspended on the date that the first requirement is made and shall resume—

(a) on the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, on whichever of the dates on which the requirements are complied with is the later or latest,

(b) where the requirement is not complied with or each of the 2 or more requirements is not complied with, on the date immediately following the expiry of the period specified in the requirement or, as the case may be, on the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(c) in case 2 or more requirements are made but one or more but not all of them are complied with, on the later or latest of the following dates, namely the dates provided by applying—

(i)paragraph (a)to the requirement or requirements complied with, and

(ii)paragraph (b)to the requirement or requirements not complied with.

(4B) If any of the undertakings that have made the notification concerned submits to the Commission during a full investigation under this section proposals to whichsection 20(3)applies,subsections (4)and(4A),section 19(1)(d)and, in the case of a media merger, paragraph (c) of the definition of "relevant date" insection 28A(1)F120[andparagraph (b)(inserted bysection 4of the Intellectual Property (Miscellaneous Provisions) Act 2014) ofsection 28B(2)](inserted bysection 74of the Competition and Consumer Protection Act 2014), shall apply as if "135 working days" were substituted for "120 working days" in those provisions.]

F116[(4AA) For the purposes ofsubsection (4A),a requirement undersection 20(2)shall be deemed to be complied with on and from the date on which the Commission was provided with a certification undersection 20(2)(b)(ii)where—

(a) the Commission confirms, by way of a notification undersection 20(2)(c), that it is satisfied that the requirement to which the certification relates has been complied with, or

(b) the Commission does not issue a notification undersection 20(2)(c)within 10 working days of being provided with the certification.

(4AB) Where the Commission confirms, by way of a notification undersection 20(2)(c), that it is not satisfied that a requirement to which the certification relates has been complied with—

(a) the requirement shall be deemed not to be complied with for the purposes ofsubsection (4A), and

(b) the Commission may request additional information relating to that requirement from the person or undertaking of whom the requirement was made.

(4AC) Where, having received additional information requested undersubsection (4AB), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes ofsubsection (4A)on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.]

(5) A determination under subsection (3)(c) that the merger or acquisition may be put into effect subject to specified conditions being complied with is referred to in this section as a “conditional determination”.

(6) A conditional determination shall include a condition requiring the merger or acquisition to be put into effect within 12 months after the making of the determination.

(7) A written determination under subsection (3) shall state the reasons for its making and shall include a report in relation to the full investigation.

(8) Before making a determination under subsection (3), the Authority shall have regard to any relevant international obligations of the State.

23. Provisions with regard to media mergers.

23.— F121[…]

24. Appeal to the High Court against determination of the Authority.

24.—(1) An appeal may be made to the High Court against a determination of the Authority under paragraph (b) or (c) of section 22(3).

(2) F122[…]

(3) An appeal under this section—

(a) may be made by any of the undertakings which made the notification in relation to the merger or acquisition concerned, and

F123[(b) shall be made within 40 working days after the date on which the undertaking is informed by the Commission of the determination concerned or, in case the determination is one that was made undersection 22(3)(c)in relation to a media merger, within 40 working days after the date the Minister for Communications, Energy and Natural Resources has informed the undertaking of his or her determination underparagraph (a)or(b)ofsection 28D(1), or undersection 28G(1), as the case may be.]

(4) Any issue of fact or law concerning the determination concerned may be the subject of an appeal under this section but, with respect to an issue of fact, the High Court, on the hearing of the appeal, may not receive evidence by way of testimony of any witness and shall presume, unless it considers it unreasonable to do so, that any matters accepted or found to be fact by the Authority in exercising the relevant powers under section 22 were correctly so accepted or found.

(5) Notwithstanding subsection (4), the High Court, on the hearing of an appeal under this section, may receive evidence by way of the testimony of one or more witnesses if it considers it was unreasonable for the Authority to have accepted or found as a fact any matter concerned.

(6) Without limiting the exercise of the judicial function with respect to a particular case, it shall be the duty of the High Court, in so far as it is practicable, to hear and determine an appeal under this section within 2 months after the date on which the appeal is made to it.

(7) On the hearing of an appeal under this section, the High Court may, as it thinks fit—

(a) annual the determination concerned,

(b) confirm the determination concerned, F122[…]

(c) confirm the determination concerned subject to such modifications of it as the court determines and specifies in its F123[decision, or]

F124[(d) remit the matter to the Commission and, if appropriate, to the Minister for Communications, Energy and Natural Resources, with a direction to make a determination taking into account the findings of the High Court, and with any other directions that the High Court considers appropriate.]

(8) The High Court may, where it appears to the court that the circumstances so warrant, F122[…] extend the period mentioned in subsection (3)(b) in which an appeal under this section may be made to it.

(9) An appeal to the Supreme Court against a decision of the High Court under any of the foregoing provisions of this section shall lie only on a question of law.

25. Laying of order under section 23(4) before Houses of the Oireachtas.

25.— F125[…]

26. Enforcement of certain commitments, determinations and orders.

26.—(1) In this section—

“commitment” means an obligation on the part of an undertaking arising by virtue of a proposal put forward by it being the subject of a statement in writing by the Authority such as is mentioned in section 20(3);

“determination” means a determination of the Authority made under section 21 or 22;

F126[…]

(2) It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Authority or of any other person to enforce compliance with the terms of F127[a commitment or a determination], for the time being in force.

(3) Subsection (2) shall not affect any other right of the Authority or other person to bring proceedings (whether civil or criminal) for the enforcement of compliance with the terms of F127[a commitment or a determination].

(4) A person who contravenes (whether by act or omission) a provision of F127[a commitment or a determination] for the time being in force shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment, or

(b) on conviction on indictment, to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(5) Every person who aids, abets or assists another person, or conspires with another person, to do anything (whether by way of act or of omission) the doing of which is an offence by virtue of subsection (4) shall himself or herself be guilty of an offence under this section and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(6) Where an offence under subsection (4) or (5) which is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who is a director, manager, secretary, member of the committee of management or other controlling authority of any such body, or who is any other similar officer of any such body, that person shall also be guilty of an offence and shall be liable to be proceeded against and punished as if he or she was guilty of the first-mentioned offence.

(7) Subsections (4), (5) and (6) operate so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in the subsection concerned 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 (4) shall have effect as if—

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

(b) in paragraph (b), “€1,000” were substituted for “€10,000”.

(8) Summary proceedings in relation to an offence under this section may be brought by the Authority.

(9) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this section may be instituted within 12 months after the day on which the offence was committed.

F128[(10) The Commission may monitor and review commitments or conditions contained in a determination.]

27. Alteration of certain monetary amounts.

27.—(1) The Minister may make an order once, and once only, in each year, beginning with the year following the year in which this section is commenced, amending subsection (1)(a) of section 18 by substituting for the monetary amount standing specified in subparagraph (i) or F129[(ii)] of that provision for the time being a monetary amount that is greater than that amount.

(2) In making an order under subsection (1), the Minister shall have regard to, and only to, such economic data as the Minister considers to be relevant to the purpose.

(3) 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.

28. Relationship between this Part and other enactments.

28.—(1) Nothing in an enactment specified in subsection (2) prejudices the operation of F130[this Part orPart 3A].

(2) The enactment mentioned in subsection (1) is an enactment (other than an enactment contained in F130[this Part orPart 3A]) that requires, in respect of the doing of the act or acts that comprise a merger or acquisition to which paragraph (a) or (b) of F130[section 18(1), orsection 28B(1)] applies, the doing of that act or those acts to be either—

(a) sanctioned, whether such sanctioning takes the form of the making by a court of an order or the granting by a person of any other form of consent, or

(b) the subject of any form of registration of a resolution passed by one or more undertakings.

(3) Neither the giving of a sanction such as is referred to in subsection (2)(a) nor the carrying out of a registration such as is referred to in subsection (2)(b) shall be done or completed in relation to a merger or acquisition to which paragraph (a) or (b) of F130[section 18(1), orsection 28B(1)] applies unless and until no step remains to be taken, or power of any person or court or of either House of the Oireachtas remains to be exercised, under F130[this Part orPart 3A], being a step or power the taking or exercising of which would, by virtue of this Part, prevent the merger or acquisition from being put into effect.

F131[PART 3A Media Mergers] Annotations Amendments: F131 Part 3A (ss. 28A-28O) inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 74, S.I. 401 of 2014, subject to transitional provisions in s. 6.

28A. F132[Interpretation and application.

28A.—(1) In this Part—

"advisory panel" has the meaning assigned to it bysection 28F;

"broadcasting service" has the same meaning as it has in the Act of 2009;

"carries on a media business in the State" means, in relation to a media business—

(a) having a physical presence in the State, including a registered office, subsidiary, branch, representative office or agency, and making sales to customers located in the State, or

(b) having made sales in the State of at least€2 million in the most recent financial year;

"diversity of content" means the extent to which the broad diversity of views (including diversity of views on news and current affairs) and diversity of cultural interests prevalent in Irish society is reflected through the activities of media businesses in the State including their editorial ethos, content and sources;

"diversity of ownership" means the spread of ownership and control of media businesses in the State linked to the market share of those media businesses as measured by listenership, readership, reach or other appropriate measures;

"full media merger examination" has the meaning assigned to it bysection 28E;

"Joint Oireachtas Committee" has the same meaning as it has in the Act of 2009;

"media business" means the business (whether all or part of an undertaking’s business) of—

(a) the publication of newspapers or periodicals consisting substantially of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet,

(b) transmitting, re-transmitting or relaying a broadcasting service,

(c) providing any programme material consisting substantially of news and comment on current affairs to a broadcasting service, or

(d) making available on an electronic communications network any written, audio-visual or photographic material, consisting substantially of news and comment on current affairs, that is under the editorial control of the undertaking making available such material;

"media merger" means—

(a) a merger or acquisition in which 2 or more of the undertakings involved carry on a media business in the State, or

(b) a merger or acquisition in which one or more of the undertakings involved carries on a media business in the State and one or more of the undertakings involved carries on a media business elsewhere;

"plurality of the media" includes both diversity of ownership and diversity of content;

"programme material" has the same meaning as it has in the Act of 2009;

"reach" means the proportion of a population or audience that consumes any part of the output of a media business in a given period;

"relevant criteria" means the following matters:

(a) the likely effect of the media merger on plurality of the media in the State;

(b) the undesirability of allowing any one undertaking to hold significant interests within a sector or across different sectors of media business in the State;

(c) the consequences for the promotion of plurality of the media in the State of intervening to prevent the media merger or attaching conditions to the approval of the media merger;

(d) if appropriate, the adequacy of the following to protect the public interest in plurality of the media in the State:

(i) the scale and reach of RTÉand TG4;

(ii) Part 6 of the Act of 2009;

(iii) the ownership and control policy of the Broadcasting Authority of Ireland for the time being in force;

(e) the proposed commitments that the undertakings are prepared to offer and which the Minister for Communications, Energy and Natural Resources may incorporate pursuant tosection 28D(5)orsection 28E(10)in his or her determination;

(f) the extent to which the public interest can be secured by the imposition of any conditions by the Minister for Communications, Energy and Natural Resources undersection 28Dorsection 28G;

"relevant date" means, in relation to a media merger, 10 working days from whichever of the following dates is applicable:

(a) the date of a determination by the Commission underparagraph (a)ofsection 21(2)or underparagraph (a)or(c)ofsection 22(3);

(b) the day after the period specified insubsection (2)ofsection 21has elapsed without the Commission having informed the undertakings that made the notification concerned of the determination (if any) it has made underparagraph (a)or(b)of thatsubsection (2);

(c) where the Commission has made a determination undersection 21(2)(b), the day after—

(i) 120 working days have elapsed after the appropriate date within the meaning ofsection 19(6), or

(ii) where a requirement or requirements referred to insection 22(4A)were made undersection 20(2), 120 working days and any period of suspension that applied pursuant tosection 22(4A)have elapsed after the appropriate date within the meaning ofsection 19(6),

without the Commission having made a determination undersection 22;

(d) the date of a decision of the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation ;

(e) the date that Article 10(6) of the Council Regulation comes into effect;

"RTÉ" means RaidióTeilifísÉireann;

"TG4" means Teilifís na Gaeilge;

"undertakings involved" shall—

(a) be construed in accordance withPart 3, or

(b) in the case of a merger or acquisition to whichsection 28B(6)applies, mean the undertakings concerned in accordance with the Council Regulation.

(2) For the avoidance of doubt, this Part applies to a media merger that has been notified to the European Commission in accordance with the Council Regulation, and consideration of, and a determination on, such a media merger under this Part by the Minister for Communications, Energy and Natural Resources shall be an appropriate measure to protect the legitimate interest in plurality of the media within the meaning of Article 21(4) of that Council Regulation.]

28B. F133[Notification of media merger to Minister for Communications, Energy and Natural Resources.

28B.—(1) In the case of a merger or acquisition that is a media merger, the undertakings involved that notified the Commission undersection 18(1), or that notified the European Commission, as the case may be, shall notify the Minister for Communications, Energy and Natural Resources in writing, and shall provide him or her with full details, of the proposal to put the merger or acquisition into effect.

(2) A notification to the Minister for Communications, Energy and Natural Resources undersubsection (1)—

(a) shall be made on or before the relevant date, and

F134[(b) notwithstandingparagraph (a), shall not be made before whichever of the following dates is applicable:

(i) the date of a determination by the Commission underparagraph (a)ofsection 21(2)or underparagraph (a)or(c)ofsection 22(3);

(ii) the day after the period specified insubsection (2)ofsection 21has elapsed without the Commission having informed the undertakings that made the notification concerned of the determination (if any) it has made underparagraph (a)or(b)of thatsubsection (2);

(iii) where the Commission has made a determination undersection 21(2) (b), the day after—

(I) 120 working days have elapsed after the appropriate date within the meaning ofsection 19(6), or

(II) where a requirement or requirements referred to insection 22(4A)were made undersection 20(2), 120 working days and any period of suspension that applied pursuant tosection 22(4A)have elapsed after the appropriate date within the meaning ofsection 19(6),

without the Commission having made a determination undersection 22;

(iv) the date of a decision of the European Commission under Article 6(1) (b) or Article 8(1) or (2) of the Council Regulation;

(v) the date that Article 10(6) of the Council Regulation comes into effect.]

(3) When making a notification undersubsection (1), each of the undertakings involved in the media merger shall provide full information to the Minister for Communications, Energy and Natural Resources on all circumstances in relation to the media merger concerned that may impair plurality of the media in the State and shall notify the Minister for Communications, Energy and Natural Resources of any changes in the information.

(4) The undertakings involved in a media merger may make submissions to the Minister for Communications, Energy and Natural Resources in relation to the applicability of the guidelines referred to insection 28Lto the media merger.

(5) If the Commission makes a determination referred to inparagraph (a)or(b)ofsection 21(2)orparagraph (a),(b)or(c)ofsection 22(3)in relation to a media merger it shall, immediately after doing so, inform the Minister for Communications, Energy and Natural Resources of that fact.

(6) If the European Commission makes a decision under Article 6(1)(a), (b) or (c) or Article 8(1), (2) or (3) of the Council Regulation or if Article 10(6) of that Council Regulation takes effect in relation to a media merger the undertakings involved shall, immediately after having being notified of the decision or of Article 10(6) having taken effect, as the case may be, inform the Minister for Communications, Energy and Natural Resources.

(7) A notification for the purposes ofsubsection (1)shall not be valid and any determination under this Part made on foot of such notification is void—

(a) where any information provided or statement made undersubsection (1),(3)or(4)orsection 28D(3)or28E(7)is false or misleading in a material respect, or

(b) if the Minister for Communications, Energy and Natural Resources is of the opinion that full details referred to insubsection (1), full information or changes to the information referred to insubsection (3), or the specified information referred to insections 28D(3)or28E(7), were not provided.

(8) Where there is a contravention ofsubsection (1)or(3), the person in control of an undertaking that has failed to notify the Minister for Communications, Energy and Natural Resources or that has failed to supply the information required, as the case may be, shall be guilty of an offence and shall be liable—

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

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

(9)Subsection (8)operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the 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 (8)shall have effect as if—

(a) inparagraph (a), "a class E fine" were substituted for "a class A fine", and

(b) inparagraph (b), "€25,000" were substituted for "€250,000".

(10) For the purposes ofsubsection (8)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.

(11) Summary proceedings in relation to an offence under this section may be brought by the Minister for Communications, Energy and Natural Resources.]

28C. F135[Limitation on media merger being put into effect.

28C.—(1) Notwithstanding any other provision of this Act or of any other enactment, a media merger shall not be put into effect before the Minister for Communications, Energy and Natural Resources makes a determination underparagraph (a)or(b)ofsection 28D(1)orparagraph (a)or(c)ofsection 28G(1).

(2) Notwithstandingsubsection (1), a determination referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 12 months from the date on which the determination is made.

(3) Any media merger that purports to be put into effect, where that putting into effect contravenes this section, is void.]

28D. F136[Initial examination by Minister for Communications, Energy and Natural Resources of media merger notification.

28D.—(1) Not later than 30 working days (or 45 working days, where proposed commitments referred to insubsection (5)have been made) from the relevant date or from the appropriate date, whichever is the later, the Minister for Communications, Energy and Natural Resources shall inform the undertakings that have made the media merger notification undersection 28Bof whichever of the following determinations he or she has made, namely—

(a) that in his or her opinion the result of the media merger will not be contrary to the public interest in protecting plurality of the media in the State, and accordingly that the media merger may be put into effect,

(b) that, in light of proposed commitments offered by the undertakings, in his or her opinion the result of the media merger will not be contrary to the public interest in protecting plurality of the media in the State, and accordingly the media merger may be put into effect subject to the incorporation of those proposed commitments as specified conditions to be complied with, or

(c) that he or she is concerned that the media merger may be contrary to the public interest in protecting plurality of the media in the State, and accordingly that he or she intends to request the Broadcasting Authority of Ireland to carry out an examination undersection 28E.

(2) In making a determination undersubsection (1)as to whether the result of the media merger is likely to be contrary to the public interest in protecting plurality of the media in the State, the Minister for Communications, Energy and Natural Resources shall have regard to—

(a) the relevant criteria,

(b) any guidelines issued undersection 28L,

(c) all submissions made and information provided to the Minister for Communications, Energy and Natural Resources by the undertakings involved in the media merger,

(d) and take full account of, where applicable, the determination of the Commission underparagraph (a)ofsection 21(2)or underparagraph (a)or(c)ofsection 22(3),

(e) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(f) relevant reports published by the Minister for Communications, Energy and Natural Resources undersection 28M, and

(g) relevant research published by the Broadcasting Authority of Ireland undersection 28M.

(3) Where the Minister for Communications, Energy and Natural Resources requires further information for the purposes of this section, he or she may by notice in writing require any one or more of the undertakings involved to supply to him or her specified information within a specified period, and an undertaking of whom such a requirement is made shall comply with it.

(4) For the purposes ofsubsection (2), the Minister for Communications, Energy and Natural Resources may enter into discussions with the undertakings involved in the media merger or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the media merger on plurality of the media in the State.

(5) In the course of the discussions undersubsection (4), any of the undertakings involved in the media merger concerned may submit to the Minister for Communications, Energy and Natural Resources proposed commitments of the kind mentioned insubsection (6)with a view to the proposed commitments becoming binding on it or them if the Minister for Communications, Energy and Natural Resources incorporates the proposed commitments as specified conditions to be complied with in his or her determination undersubsection (1)(b)in relation to the media merger.

(6) The proposed commitments referred to insubsection (5)are proposed commitments with regard to the manner in which the media merger may be put into effect or to the taking, in relation to the media merger, of any other measures referred to insubsection (4).

(7) As soon as may be after the Minister for Communications, Energy and Natural Resources makes a determination undersubsection (1), he or she—

(a) shall furnish to the undertakings involved a copy of the determination, and

(b) may publish, with due regard for commercial confidentiality—

(i) the fact of the making of the determination,

(ii) whether the determination was made underparagraph (a),(b)or(c)ofsubsection (1), and

(iii) where his or her determination was made undersubsection (1)(b), a summary of the conditions specified in the determination.

(8) After the Minister for Communications, Energy and Natural Resources has furnished the determination to the undertakings involved in accordance withsubsection (7)(a)—

(a) he or she may correct the determination at any time before the determination is published underparagraph (c)so as to remove any clerical or typographical errors or any errors of a similar nature and shall inform the undertakings involved of any such changes made, but may not reconsider or re-open any aspect of the determination,

(b) not later than 10 working days from the date of receipt of the determination undersubsection (7)(a), the undertakings involved may request the Minister for Communications, Energy and Natural Resources in writing to omit from the version of the determination to be published underparagraph (c)any information that they consider to be commercially sensitive, and

(c) he or she shall publish the determination not later than 15 working days from the date of the determination, with due regard for commercial confidentiality.

(9) In this section, reference to "appropriate date" means—

(a) unlessparagraph (b)applies, the date of receipt by the Minister for Communications, Energy and Natural Resources of the notification of the media merger concerned undersection 28B,

(b) if the Minister for Communications, Energy and Natural Resources has made, undersubsection (3), not later than 30 working days from the date of receipt by him or her of the notification of the media merger concerned undersection 28B, a requirement or requirements of one or more of the undertakings involved—

(i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest,

(ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying—

(I)subparagraph (i)to the requirement or requirements complied with, and

(II)subparagraph (ii)to the requirement or requirements not complied with.

(10) The reference in the definition of "appropriate date" insubsection (9)to the period specified in a requirement is a reference to the period specified in the requirement as being the period within which the information concerned shall be supplied.

(11) For the purpose of the reference insubsection (9), and in any other provision of this Act, to the date on which the Minister for Communications, Energy and Natural Resources receives a notification undersection 28B, if a single notification is not made by all the undertakings involved, the said reference shall be construed as a reference to the later or latest of the dates on which a notification of the merger or acquisition involved undersection 28Bis received by the Minister for Communications, Energy and Natural Resources.]

28E. F137[Full media merger examination.

28E.—(1) Where the Minister for Communications, Energy and Natural Resources makes a determination undersection 28D(1)(c), he or she shall request the Broadcasting Authority of Ireland to carry out an examination (in this Part referred to as a "full media merger examination") in relation to the media merger concerned.

(2) On receipt of a request undersubsection (1), the Broadcasting Authority of Ireland shall, as soon as may be—

(a) cause a copy of the request to be published on the website of the Broadcasting Authority of Ireland,

(b) invite submissions to be made not later than 20 working days from the date of publication of the request pursuant toparagraph (a), and

(c) cause a copy of the request to be sent to the Joint Oireachtas Committee and invite a submission from that Joint Oireachtas Committee within the period specified inparagraph (b).

(3) The submissions referred to inparagraphs (b)and(c)ofsubsection (2)—

(a) shall be furnished, pursuant tosubsection (9)(c), to the undertakings involved in the media merger,

(b) shall be furnished to the Minister for Communications, Energy and Natural Resources and where an advisory panel has been established undersection 28F, to the advisory panel, to enable them to perform their functions under this Part,

(c) may be referred to or quoted from in, or annexed to, the documents referred to insubsections (9)(a)and(12)(b)andsection 28G(4)(c), and

(d) shall not be published or otherwise disclosed to the public by the Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or the advisory panel before the Minister for Communications, Energy and Natural Resources publishes the documents referred to insection 28G(4)(c).

(4) The Broadcasting Authority of Ireland shall—

(a) not later than 80 working days from the date of the request undersubsection (1)or the applicable date, whichever is the later, make a report in writing to the Minister for Communications, Energy and Natural Resources in relation to its examination, and

(b) as soon as may be after making the report underparagraph (a), send the report to the undertakings involved.

(5) A report undersubsection (4)shall contain a recommendation as to whether the media merger should be put into effect with or without conditions or should not be put into effect.

(6) The Broadcasting Authority of Ireland, in order to make a report undersubsection (4), shall form a view as to whether the result of the media merger is likely to be contrary to the public interest in protecting plurality of the media in the State, and for that purpose, shall have regard to—

(a) the relevant criteria,

(b) any guidelines issued by the Minister for Communications, Energy and Natural Resources undersection 28L,

(c) all submissions made and information provided—

(i) to the Minister for Communications, Energy and Natural Resources, during his or her initial examination undersection 28D, by the undertakings involved in the media merger, and

(ii) to the Broadcasting Authority of Ireland, during the full media merger examination, by the undertakings involved in the media merger, by any other person in response to an invitation for submissions undersubsection (2)(b), or by the Joint Oireachtas Committee in response to an invitation for a submission undersubsection (2)(c),

(d) and take full account of, where applicable, the determination of the Commission underparagraph (a)ofsection 21(2)or underparagraph (a)or(c)ofsection 22(3),

(e) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(f) where applicable, the opinion of the advisory panel established undersection 28Fand any clarifications of the opinion provided by the advisory panel in accordance with that section,

(g) if the undertakings involved have responded to the draft report and recommendation provided to them pursuant tosubsection (9), the draft report and recommendation and the responses of the undertakings involved to the draft report and recommendation,

(h) relevant reports published by the Minister for Communications, Energy and Natural Resources undersection 28M, and

(i) relevant research published by the Broadcasting Authority of Ireland undersection 28M.

(7) Where the Broadcasting Authority of Ireland requires further information for the purposes of this section, it may, by notice in writing served on the undertakings, require any one or more of the undertakings involved to supply to it specified information within a specified period, and an undertaking of whom such a requirement is made shall comply with it.

(8) For the purposes ofparagraph (6), the Broadcasting Authority of Ireland may enter into discussions with the undertakings involved in the media merger or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the media merger on plurality of the media in the State.

(9) The Broadcasting Authority of Ireland shall, not later than 30 working days before it is due to make its report undersubsection (4), furnish the undertakings involved with—

(a) its draft report and draft recommendation to which the undertakings involved may respond not later than 10 working days from the date of receiving the draft report and draft recommendation,

(b) if applicable, the opinion and any clarifications issued by the advisory panel undersection 28F, and

(c) if applicable, the submissions referred to insubsection (6)(c).

(10) In the course of any discussions undersubsection (8), any of the undertakings involved in the media merger concerned may submit to it, not later than 20 working days before the Broadcasting Authority of Ireland is due to make its report to the Minister for Communications, Energy and Natural Resources undersubsection (4), proposed commitments of the kind mentioned insubsection (11)with a view to the proposed commitments becoming binding on it or them if the Minister for Communications, Energy and Natural Resources incorporates the proposed commitments as specified conditions to be complied with in his or her determination undersection 28G(1)(c)in relation to the media merger.

(11) The proposed commitments referred to insubsection (10)are proposed commitments with regard to the manner in which the media merger may be put into effect or to the taking, in relation to the media merger, of any other measures referred to insubsection (8).

(12) Not later than 7 working days from the date of the making of its report to the Minister for Communications, Energy and Natural Resources undersubsection (4), the Broadcasting Authority of Ireland—

(a) may, without reconsidering or re-opening any aspect of its report, correct the report so as to remove any clerical or typographical errors or any errors of a similar nature, and

(b) where one or more such corrections have been made, shall—

(i) send the corrected report to the Minister for Communications, Energy and Natural Resources and the undertakings involved, and

(ii) inform the Minister for Communications, Energy and Natural Resources and the undertakings involved of the corrections made.

(13) In this section, reference to "applicable date" means—

(a) unlessparagraph (b)applies, the date the Minister for Communications, Energy and Natural Resources makes a determination undersection 28D(1)(c),

(b) if the Broadcasting Authority of Ireland has made, underF138[subsection (7)], not later than 30 working days from the date the Minister for Communications, Energy and Natural Resources makes a determination undersection 28D(1)(c), a requirement or requirements of one or more of the undertakings involved—

(i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest,

(ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying—

(I)subparagraph (i)to the requirement or requirements complied with, and

(II)subparagraph (ii)to the requirement or requirements not complied with.

(14) The reference in the definition of "applicable date" insubsection (13)to the period specified in a requirement is a reference to the period specified in the requirement as being the period within which the information concerned shall be supplied.]

28F. F139[Advisory panel.

28F.—(1) As soon as may be after the Minister for Communications, Energy and Natural Resources requests the Broadcasting Authority of Ireland to conduct a full media merger examination undersection 28E, he or she may, if he or she considers that the opinion of an advisory panel is required in order to assist the Broadcasting Authority of Ireland in carrying out the full media merger examination and in making its report undersection 28E, establish an advisory panel (in this Part referred to as an "advisory panel") to provide a reasoned opinion in writing to the Broadcasting Authority of Ireland on the application of the relevant criteria to the media merger in question and to provide clarifications of the opinion where requested by the Broadcasting Authority of Ireland in accordance withsubsection (6)(b).

(2) An advisory panel shall consist of at least 3 and not more than 5 persons appointed by the Minister for Communications, Energy and Natural Resources, each of whom shall have knowledge of, and expertise in, law, journalism, media, business or economics.

(3) The Minister for Communications, Energy and Natural Resources shall appoint one member of the advisory panel as chairperson of the panel.

(4) A person is not eligible to be appointed as a member of an advisory panel if the person, for the time being—

(a) is entitled under the Standing Orders of either House of the Oireachtas to sit therein,

(b) is a member of the European Parliament,

(c) is entitled under the Standing Orders of a local authority to sit as a member thereof,

(d) is a member, officer or employee of the Broadcasting Authority of Ireland, or

(e) has a pecuniary interest or other beneficial interest in, or material to, any matter which is to be considered by the advisory panel.

(5) An advisory panel shall determine its own procedure.

(6) Notwithstandingsubsection (5)—

(a) an advisory panel shall submit its opinion referred to insubsection (1)to the Broadcasting Authority of Ireland in relation to the application of the relevant criteria to the media merger in question not later than 20 working days from the date of a request undersubsection (1), but no such opinion shall be requested or provided after the draft report and recommendation has been sent to the undertakings involved undersection 28E(9), and

(b) an advisory panel shall provide clarification in writing of its opinion referred to insubsection (1)pursuant to a request in writing for such clarification within such period as the Broadcasting Authority of Ireland may specify in the request, but no such clarification shall be requested or provided after the draft report and recommendation has been sent to the undertakings involved undersection 28E(9).

(7) Following the determination of the Minister for Communications, Energy and Natural Resources undersection 28Gin respect of the relevant media merger, an advisory panel shall stand dissolved.

(8) For the purposes of this section, a person shall be regarded as having a beneficial interest in, or material to, a matter which is to be considered by the advisory panel in each of the following cases:

(a) the person, any connected relative of the person or a nominee of either of them is a member of a company or any other body which has a beneficial interest in, or material to, any matter which is to be considered by the advisory panel;

(b) the person or any connected relative of the person is in partnership with or is in the employment of a person who has a beneficial interest in or material to any such matter;

(c) the person or any connected relative of the person is a party to any arrangement or agreement (whether or not enforceable) concerning land to which any such matter relates.

(9) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter by reason only that he or she or any company or other person or any other body mentioned insubsection (8)has an interest which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question in respect of the matter or in performing any function in relation to that matter.

(10) In this section—

"civil partner" means a civil partner within the meaning of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

"connected relative", in relation to a person, means a spouse, partner, civil partner, parent, brother, sister, child or a spouse, partner or civil partner of the child of the person.]

28G. F140[Determination of Minister for Communications, Energy and Natural Resources after full media merger examination.

28G.—(1) The Minister for Communications, Energy and Natural Resources shall, not later than 20 working days from the date the report of the Broadcasting Authority of Ireland was made to him or her undersection 28E(4), make whichever of the following determinations he or she considers appropriate, namely that the media merger—

(a) may be put into effect,

(b) may not be put into effect, or

(c) may be put into effect, subject to the conditions specified in the determination being complied with,

on the ground that he or she considers that the result of the media merger will or will not, as the case may be, be contrary to the public interest in protecting plurality of the media in the State or, as appropriate, will not be contrary to the public interest in protecting plurality of the media in the State if conditions so specified are complied with.

(2) When making a determination undersubsection (1), the Minister for Communications, Energy and Natural Resources shall have regard to—

(a) the relevant criteria,

(b) the report of the Broadcasting Authority of Ireland undersection 28E,

(c) any guidelines issued undersection 28L,

(d) all submissions made and information provided—

(i) to the Minister for Communications, Energy and Natural Resources, during his or her initial examination undersection 28D, by the undertakings involved in the media merger, and

(ii) to the Broadcasting Authority of Ireland, during the full media merger examination, by the undertakings involved in the media merger, by any other person in response to an invitation for submissions undersection 28E(2)(b), or by the Joint Oireachtas Committee in response to an invitation for a submission undersection 28E(2)(c),

(e) and take full account of, where applicable, the determination of the Commission underparagraph (a)ofsection 21(2)or underparagraph (a)or(c)ofsection 22(3),

(f) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(g) where applicable, the opinion of the advisory panel established undersection 28Fand any later clarifications of the opinion provided by the advisory panel in accordance with that section,

(h) if the undertakings involved have responded to the draft report and recommendation provided to them pursuant tosection 28E(9), the draft report and recommendation and the responses of the undertakings involved to the draft report and recommendation,

(i) relevant reports published by the Minister for Communications, Energy and Natural Resources undersection 28M, and

(j) relevant research published by the Broadcasting Authority of Ireland undersection 28M.

(3) As soon as may be after the Minister for Communications, Energy and Natural Resources makes a determination undersubsection (1), he or she—

(a) shall furnish to the undertakings involved a copy of the determination, and

(b) may publish in Iris Oifigiúil, with due regard for commercial confidentiality—

(i) the fact of the making of the determination,

(ii) whether the determination was made underparagraph (a),(b)or(c)ofsubsection (1), and

(iii) where his or her determination was made undersubsection (1)(c), a summary of the conditions specified in the determination.

(4) After the Minister for Communications, Energy and Natural Resources has furnished the determination to the undertakings involved in accordance withsubsection (3)(a)—

(a) he or she may correct the determination at any time before the determination is published underparagraph (c)(i)so as to remove any clerical or typographical errors or any errors of a similar nature and shall inform the undertakings involved of any such changes made, but may not reconsider or re-open any aspect of the determination,

(b) not later than 15 working days from the date the determination is furnished to them undersubsection (3)(a), the undertakings involved may request the Minister for Communications, Energy and Natural Resources in writing to omit from the version of the determination to be published underparagraph (c)any information that they consider to be commercially sensitive, and

(c) he or she shall publish on the internet, after 15 working days, but not later than 30 working days, from the date of the determination, with due regard for commercial confidentiality—

(i) the determination,

(ii) the report of the Broadcasting Authority of Ireland to the Minister for Communications, Energy and Natural Resources undersection 28E, and

(iii) where applicable, the opinion of the advisory panel established undersection 28Fand any clarifications of the opinion provided by the advisory panel.]

28H. F141[Review of conditions in determination under section 28G(1)(c).

28H.—(1) Where all the undertakings involved in a media merger are of the opinion that the market conditions applicable to the merger have substantially changed since the date the Broadcasting Authority of Ireland made its report to the Minister for Communications, Energy and Natural Resources undersection 28E(4), the undertakings involved may, not later than 40 working days from the date the determination undersection 28G(1)(c)is notified to them, request the Minister for Communications, Energy and Natural Resources to review the conditions contained in the determination.

(2) On receipt of a request undersubsection (1), the Minister for Communications, Energy and Natural Resources shall—

(a) consider whether the market conditions have substantially changed, and

(b) if he or she is satisfied that the market conditions have substantially changed, he or she shall carry out a review of the conditions contained in the determination to ascertain whether one or more of those conditions should be amended or revoked because they are no longer necessary, in light of the substantial change in the market conditions, to protect plurality of the media in the State.

(3) Following a review undersubsection (2)and not later than 40 working days from the date of a request undersubsection (1), the Minister for Communications, Energy and Natural Resources may, with the consent of the undertakings involved, amend or revoke in writing one or more of the conditions contained in the determination.

(4) If the Minister for Communications, Energy and Natural Resources amends or revokes one or more of the conditions contained in the determination pursuant tosubsection (3), as soon as may be, he or she—

(a) shall furnish to the undertakings involved a copy of the amended conditions or if all the conditions have been revoked, a statement to that effect, and

(b) may publish, with due regard for commercial confidentiality—

(i) the fact of the amendment or revocation of one or more of the conditions under this section, and

(ii) a summary of the amended conditions or if all the conditions have been revoked, a statement to that effect.]

28I. F142[Enforcement of certain determinations.

28I.—(1) It shall be lawful for the High Court to grant an injunction on the motion of the Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or any of the undertakings involved in the media merger to enforce compliance with the terms of a determination for the time being in force.

(2)Subsection (1)shall not affect any other right of the Minister for Communications, Energy and Natural Resources to bring proceedings (whether civil or criminal) for the enforcement of compliance with the terms of a determination.

(3) A person who contravenes (whether by act or omission) a provision of a determination for the time being in force commits an offence and shall be liable—

(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment, or

(b) on conviction on indictment, to a fine not exceeding€10,000 or to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(4) Every person who aids, abets or assists another person, or conspires with another person, to do anything (whether by way of act or of omission) the doing of which is an offence by virtue ofsubsection (3)shall himself or herself commit an offence under this section and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) Where an offence undersubsection (3)or(4)which is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who is a director, manager, secretary, member of the committee of management or other controlling authority of any such body, or who is any other similar officer of any such body, that person shall also commit an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(6)Subsections (3),(4)and(5)operate so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in the subsection concerned 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 (3)shall have effect as if—

(a) inparagraph (a), "a class E fine" were substituted for "a class A fine", and

(b) inparagraph (b), "€1,000" were substituted for "€10,000".

(7) Summary proceedings in relation to an offence under this section may be brought by the Minister for Communications, Energy and Natural Resources.

(8) In this section "determination" means a determination of the Minister for Communications, Energy and Natural Resources made undersection 28Dor28G.]

28J. F143[Limitation of judicial review of determination.

28J.—(1) Leave shall not be granted for judicial review of a determination of the Minister for Communications, Energy and Natural Resources undersection 28Dor28Gunless—

(a) the application for leave to seek judicial review is brought by an undertaking involved in the media merger to which the determination relates,

(b) either—

(i) the application is made to the High Court not later than 40 working days from the date of the determination of the Minister for Communications, Energy and Natural Resources undersection 28Dor28G, or

(ii) the High Court is satisfied that—

(I) there are substantial reasons why the application was not made within that period, and

(II) it is just in all the circumstances to grant leave, having regard to the interests of other affected persons and the public interest,

and

(c) the High Court is satisfied that the application raises a substantial issue for the High Court’s determination.

(2) The High Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the Minister for Communications, Energy and Natural Resources with such directions as the High Court thinks appropriate or necessary.

(3) The determination of the High Court of an application for leave to apply for judicial review, or an application for judicial review, is final and no appeal lies from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which shall only be granted if 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 taken to the Supreme Court.

(4)Subsection (3)does 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 provisions of the Constitution.]

28K. F144[Fees.

28K.—(1) The Broadcasting Authority of Ireland may charge, receive and recover, for the costs incurred by it during a full media merger examination, such fees as it may, with the consent of the Minister for Communications, Energy and Natural Resources given with the approval of the Minister for Public Expenditure and Reform, from time to time determine.

(2) The fees determined undersubsection (1)shall be paid by the undertakings that notified the media merger undersection 28Bin the time and manner specified by the Broadcasting Authority of Ireland, with the consent of the Minister for Communications, Energy and Natural Resources given with the approval of the Minister for Public Expenditure and Reform.

(3) The Broadcasting Authority of Ireland may provide for different fees in different circumstances or classes of circumstances or for different cases or classes of cases and for the manner in which fees are to be disposed of.

(4) The Broadcasting Authority of Ireland shall arrange for the publication on the internet of fees payable as soon as practicable after the fees have been determined undersubsection (1).

(5) The Broadcasting Authority of Ireland may recover any amount due and owing to it under this section from the person by whom it is payable as a simple contract debt in any court of competent jurisdiction.]

28L. F145[Guidelines.

28L.—(1) The Minister for Communications, Energy and Natural Resources may, from time to time, following consultation with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate, prepare and make guidelines on the general applicability of the relevant criteria to media mergers, including in particular:

(a) levels of media ownership including across different sectors of the media that would, subject to the particular circumstances of each media merger, be regarded as contrary to the public interest;

(b) indicators of diversity of content and of diversity of ownership and control of media businesses that would be used in determining whether a media merger would be regarded as contrary to the public interest;

(c) if appropriate, the manner in which he or she shall have regard to the adequacy of the following to protect the public interest in plurality of the media in the State:

(i) the scale and reach of RTÉand TG4;

(ii) Part 6 of the Act of 2009;

(iii) the ownership and control policy of the Broadcasting Authority of Ireland for the time being in force;

(d) what will constitute significant interests within a sector or across different sectors of media businesses in the State for the purposes ofparagraph (b)of the definition of "relevant criteria" insection 28A(1);

(e) the nature of the proposed commitments that the undertakings involved in a merger may offer pursuant tosection 28D(5)orsection 28E(10)that could be incorporated as conditions in a determination by the Minister for Communications, Energy and Natural Resources undersection 28D(1)(b)orsection 28G(1)(c);

(f) the nature of the other conditions that may be imposed by the Minister for Communications, Energy and Natural Resources in a determination undersection 28G(1)(c);

(g) such other matters regarding media mergers as the Minister for Communications, Energy and Natural Resources considers appropriate.

(2) The Minister for Communications, Energy and Natural Resources may, from time to time, following consultation with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate, prepare and make guidelines on the manner in which he or she shall carry out his or her functions undersection 28H(2), including in particular, the factors he or she shall take into account in considering whether market conditions have substantially changed and, if they have so changed, the manner in which he or she shall review the conditions contained in a determination.

(3) Before making guidelines undersubsection (1)or(2), the Minister for Communications, Energy and Natural Resources—

(a) shall publish on the internet a draft of the proposed guidelines and allow persons 30 working days from the date of publication to make written representations to him or her in relation to the draft guidelines, and

(b) may, having considered any representations received, make the guidelines, with or without modification.

(4) The guidelines shall be published by the Minister for Communications, Energy and Natural Resources on the internet in such form or manner as he or she thinks appropriate and the guidelines published shall specify the date from which they have effect.]

28M. F146[Report and research.

28M.—(1) The Broadcasting Authority of Ireland shall, not later than one year from the date of the commencement of this section, and every 3 years thereafter, prepare a report which shall—

(a) describe the ownership and control arrangements for undertakings carrying on a media business in the State,

(b) describe the changes to the ownership and control arrangements of such undertakings over the previous 3 years, and

(c) analyse the effects of such changes on plurality of the media in the State,

and the Broadcasting Authority of Ireland shall furnish the report to the Minister for Communications, Energy and Natural Resources as soon as may be after it has been prepared.

(2) The Minister for Communications, Energy and Natural Resources shall, as soon as reasonably practicable after the report has been prepared, cause a copy of the report to be laid before each House of the Oireachtas.

(3) As soon as practicable after the report has been laid before each House of the Oireachtas, the Minister for Communications, Energy and Natural Resources shall publish it on the internet.

(4) The Broadcasting Authority of Ireland shall conduct periodic methodological research on matters relating to plurality of the media, which may include the development of appropriate measurement indices, and shall record in writing and publish the results of such research.

(5) The Broadcasting Authority of Ireland—

(a) may conduct such other research relating to plurality of the media that it considers necessary, and

(b) shall conduct such other research relating to plurality of the media as the Minister for Communications, Energy and Natural Resources may request,