Competition Act 2002

and shall record in writing and publish the results of such research.]

28N. F147[Sharing of information and documents and disclosure of confidential information.

28N.—(1) A person shall not disclose confidential information obtained by him or her while performing functions as—

(a) a member, an officer, or a member of the staff of, or an adviser or consultant to, the Broadcasting Authority of Ireland, or a member of the staff of such adviser or consultant, or

(b) a member of an advisory panel established undersection 28F,

unless he or she is duly authorised by the Broadcasting Authority of Ireland to so do.

(2)Subsection (1)shall not operate to prohibit the disclosure of confidential information by a person referred to in that subsection to the Broadcasting Authority of Ireland, the advisory panel or to the Minister for Communications, Energy and Natural Resources in the circumstances referred to insubsection (3).

(3) The Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or an advisory panel established undersection 28Fmay share information or documents with each other if satisfied that the information or documents are required by each other for the performance of functions under this Part.

(4) A person who contravenessubsection (1)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.

(5) In this section—

"confidential information" includes—

(a) information that is expressed by the undertakings involved in the merger or acquisition to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) submissions of a commercially sensitive nature made by any other person;

"public body" means—

(a) a Department of State,

(b) the Garda Síochána,

(c) the Permanent Defence Force within the meaning of theDefence Act 1954,

(d) a local authority within the meaning of theLocal Government Act 2001, or

(e) a body established by or under any enactment or charter other than the Companies Acts ;

"submissions of a commercially sensitive nature" means submissions the disclosure of which could reasonably be expected to—

(a) substantially and materially prejudice the commercial or industrial interests of—

(i) the person who made the submission,

(ii) the person to whom the submission relates, or

(iii) a class of persons in which a person referred to insubparagraph (i)or(ii)falls,

(b) substantially prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation, or

(c) substantially prejudice the financial position of the State or a public body.]

28O. F148[Expenses in administration of Part.

28O.—The expenses incurred by the Minister for Communications, Energy and Natural Resources in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.]

PART 4 The Competition Authority

29. The Competition Authority.

29.—F149[…]

30. Functions of the Authority.

30.—F150[…]

31. Investigations of the Authority — general provisions.

31.—F151[…]

32. Prohibition on unauthorised disclosure of information.

32.—F152[…]

33. Strategic plans and work programmes.

33.—F153[…]

34. Provisions for co-operation between the Authority and statutory bodies.

34.—F154[…]

35. Membership.

35.—F155[…]

36. Disqualification.

36.—F156[…]

37. Meetings and business.

37.—F157[…]

38. Functions and accountability of chairperson.

38.—F158[…]

39. Staff.

39.—F159[…]

40. Seal of the Authority.

40.—F160[…]

41. Accounts and audits.

41.—F161[…]

42. Annual report.

42.—F162[…]

43. Grants and borrowing powers.

43.—F163[…]

44. Superannuation.

44.—F164[…]

45. Authorised officers and their powers.

45.—F165[…]

46. Relationship of Authority with foreign competition bodies.

46.—F166[…]

47. F167[Power to disclose certain information relating to offences under this Act.]

47.—F168[…]

PART 4A Performance of Functions of Commission Under this Act

47A. Function of the Commission to investigate complaints relating to the electronic communications market.

47A.—TheF170[Commission for Communications Regulation]has, in addition to its other functions under this Act or any other enactment, the function of investigating, either on its own initiative or in response to a complaint made to it by any person, the existence of an agreement, decision or practice of a kind specified in section 4F171[or Article 101 of the Treaty on the Functioning of the European Union], or the occurrence of an abuse of the kind specified in section 5F171[or Article 102 of the Treaty on the Functioning of the European Union], involving the provision of an electronic communications service or electronic communications network, or associated facilities.]

47B. F172[Delegation of functions of Commission.

47B.—(1) Except as provided bysubsection (2), theF173[Commission for Communications Regulation]may delegate the performance of any of its functions under this Act to any member of theF173[Commission for Communications Regulation]orF173[or any member of the staff of the Commission for Communications Regulation].

(2) TheF173[Commission for Communications Regulation]may not delegate the performance of—

(a) its function undersection 4(3), or

F174[(b) the power to prosecute an offence undersection 6or7, or to pursue administrative sanctions proceedings or for relief undersection 14.]]

47C. F175[Commission to notify Authority before acting under this Act.

47C.—Before performing any of its functions under this Act, theF176[Commission for Communications Regulation]shall notify the Authority in writing of its intention to perform that function.]

47D. F177[ Responsibilities of Authority with respect to notifying existence of certain agreements, decisions, practices and abuses.

47D.—(1) If—

(a) at any time the Authority suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified insection 4, or there is occurring or has occurred an abuse of the kind specified insection 5, and

(b) it appears to the Authority that the agreement, decision or practice, or the abuse, relates to the provision of an electronic communications service or electronic communications network, or an associated facility,

it shall notify its suspicion in writing to theF178[Commission for Communications Regulation], together with particulars setting out the basis for the suspicion.

(2) If at any time theF178[Commission for Communications Regulation]suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified insection 4, or there is occurring or has occurred an abuse of the kind specified insection 5, it shall notify that suspicion in writing to the Authority. This subsection applies irrespective of whether it appears to theF178[Commission for Communications Regulation]that the suspected breach relates to the provision of an electronic communications service or electronic communications network, or an associated facility.]

47E. F179[Authority and Commission to make every effort to settle disputed questions.

47E.—(1) The Authority and theF180[Commission for Communications Regulation]shall make every effort to settle by agreement any question arising as to which of them should perform the functions conferred on a competent authority byF181[Part 2(section 4(3)excepted),Part 2CandPart 2D]that may relate to the provision of an electronic communications service or electronic communications network, or associated facilities.

(2) If at any time the Authority or theF180[Commission for Communications Regulation]considers that the question cannot be resolved by agreement, it may refer the question for resolution by the Minister.

(3) As soon as practicable after the question has been referred undersubsection (2), the Minister shall determine the question and then notify the Authority and theF180[Commission for Communications Regulation]of the determination. In making a determination, the Minister shall—

(a) consult with the Minister for Communications, Marine and Natural Resources, and

(b) take into account any representations made with respect to the question by the Authority or theF180[Commission for Communications Regulation].

(4) The determination of the Minister undersubsection (3)is final.]

47F. F182[Undertaking not liable to be prosecuted by both Authority and Commission for same offence.

47F.—If an undertaking that provides an electronic communications service or electronic communications network, or associated facilities, is being, or has been, prosecuted for an offence undersection 6or7by the Authority or by theF183[Commission for Communications Regulation], the undertaking is not liable to be prosecuted for the same offence by the other of those entities.]

47G. F184[Co-operation agreement between Authority and the Commission with respect to performing their respective functions under this Act.

47G.—(1) As soon as practicable after the commencement of this Part, the Authority and theF185[Commission for Communications Regulation]shall enter into negotiations for a co-operation agreement that will—

(a) facilitate the performance of their respective functions under this Act, and

(b) avoid duplicating activities by the Authority and theF185[Commission for Communications Regulation]in relation to the performance of those functions, and

(c) ensure, as far as practicable, consistency between decisions made, and other steps taken, by the Authority and theF185[Commission for Communications Regulation]so far as any part of those decisions or steps relates to the performance of those functions.

(2) As far as practicable, a co-operation agreement shall—

(a) require the Authority and theF185[Commission for Communications Regulation]to consult each other before performing any of their respective functions under this Act if the performance of the functions concerned involves the same issues, and

(b) enable the Authority and theF185[Commission for Communications Regulation]to provide each other with information in its possession if the information is required by the other to perform its functions under this Act.

(3) The Authority and theF185[Commission for Communications Regulation]may vary a co-operation agreement by further agreement.

(4) The Authority and theF185[Commission for Communications Regulation]shall respectively provide the Minister for Enterprise, Trade and Employment and the Minister for Communications, Marine and Natural Resources with a copy of a co-operation agreement, or a variation of such an agreement, as soon as practicable after the agreement or variation has been entered into.

(5) A co-operation agreement, and any variation to it, is to be in writing.

(6) As soon as practicable after a co-operation agreement, or variation of the agreement, is entered into, the Authority and theF185[Commission for Communications Regulation]shall publish in such manner as they think appropriate a notice to the effect that the agreement or variation has been entered into. The notice shall state—

(a) that a copy of the agreement or variation can be inspected at premises of the Authority and premises of theF185[Commission for Communications Regulation], or by a means, specified in the notice, and

(b) that a copy of the agreement or variation can be purchased from either the Authority or theF185[Commission for Communications Regulation]in a manner so specified.

However, if either the Authority or theF185[Commission for Communications Regulation]has complied with this subsection, the other of them is taken to have so complied.

(7) As soon as practicable after a co-operation agreement, or a variation of the agreement, is entered into, the Authority shall arrange for a copy of the agreement or variation to be laid before each House of the Oireachtas.

(8) The Authority and theF185[Commission for Communications Regulation]shall each make available to members of the public copies of a co-operation agreement, or a variation of the agreement, for inspection and for purchase (at a cost not exceeding the reasonable cost of making a copy and the cost (if any) of posting it).

(9) If information is provided by the Authority or theF185[Commission for Communications Regulation]under a co-operation agreement to which this section applies, any enactment restricting or prohibiting the disclosure of that information by the provider of the information also applies to the receiver of the information.]

47H. F186[Liability of competent authority and associated persons and indemnity for associated persons.

47H.—(1) This section applies to the following persons:

(a) the competent authority;

(b) the members of the competent authority (including the chairperson);

(c) adjudication officers under this Act;

(d) employees of the competent authority;

(e) agents of the competent authority.

(2) A person to whom this section applies is not liable for damages and no proceedings may be maintained against them in which it is claimed that the person is liable in damages (whether such liability is enforceable by action or not), for anything done or omitted to be done in the performance or purported performance or exercise or purported exercise of any of their functions or powers underParts 2Cto2G, unless it is proved that the act or omission was in bad faith.

(3) Notwithstanding any subsequent court determination as to whether an act or omission was otherwise than in good faith, where a competent authority is satisfied that a person to whom this section applies (other than a competent authority) has discharged his or her duties in pursuance of the functions of the competent authority underParts 2Cto2Gin good faith, the competent authority may, in the manner and to the extent and subject to the terms and conditions that the competent authority may determine from time to time in consultation with the Minister, indemnify that person against all actions or claims (including as to costs) however they arise in respect of the discharge by him or her of his or her duties.]

PART 5 Miscellaneous

48. Repeals.

48.—The following are repealed:

(a) the Industrial and Provident Societies (Amendment) Act, 1971,

(b) the Mergers, Take-overs and Monopolies (Control) Act, 1978,

(c) sections 24, 25 and 26 of the Restrictive Practices (Amendment) Act, 1987,

(d) the Competition Act, 1991, and

(e) the Competition (Amendment) Act, 1996.

49. Restrictive Practices (Groceries) Order, 1987.

49.—F187[…]

50. Protections for person reporting breaches of Act.

50.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to the Authority of his or her opinion that—

(a) an offence under section 6 or 7 has been or is being committed, or

(b) any other provision of this Act that prohibits an undertaking from doing a particular thing or things has not been or is not being complied with,

unless it is proved that he or she has not acted reasonably F188[…] in forming that opinion and communicating it to the Authority.

(2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to be the subject of an order providing for any other form of relief.

F189[(2A)Subsection (1)does not apply to a communication that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(3) An employer shall not penalise an employee for having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Authority if the employee has acted reasonably F188[…] in forming that opinion and communicating it to the Authority.

F190[(3A)Subsection (3)does not apply to a communication that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(4) Schedule 3 shall have effect for the purposes of subsection (3).

(5) A person who states to the Authority that an undertaking has committed or is committing an offence under section 6 or 7 or has failed or is failing to comply with a provision of this Act referred to in subsection (1)(b) knowing that statement to be false shall be guilty of an offence and shall be liable 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.

F191[(5A)Subsection (5)does not apply to the making of a statement that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(6) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under subsection (5) may be instituted within 2 years after the day on which the offence was committed or, if later, 2 years after the day on which evidence that, in the opinion of the person by whom the proceedings are brought, is sufficient to justify the bringing of the proceedings comes to that person's knowledge.

(7) For the purposes of subsection (6), a certificate signed by or on behalf of the person bringing the proceedings as to the day on which the evidence referred to in that subsection relating to the offence concerned came to his or her knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purpose of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate.

(8) Subsection (1) is in addition to, and not in substitution for, any privilege or defence available in legal proceedings, by virtue of any enactment or rule of law in force immediately before the commencement of this section, in respect of the communication by a person to another (whether that other person is the Authority or not) of an opinion of the kind referred to in paragraph (a) or (b) of subsection (1).

51. Amendment of Industrial and Provident Societies Act, 1893.

51.—The Industrial and Provident Societies Act, 1893, is amended—

(a) in section 51, by the substitution for “For the purposes of this Act” of “Subject to section 51A of this Act, for the purposes of this Act”, and

(b) by the insertion of the following section after section 51:

“51A. In relation to special resolutions for the purposes of sections 52 and 53 of this Act, section 51 of this Act shall have effect as if—

(a) in paragraph (a) ‘of not less than three fourths’ were deleted, and

(b) in paragraph (b), ‘where such special resolution is passed by a majority of less than three fourths of such members,’ were inserted before ‘confirmed’.”.

52. Regulations and orders.

52.—(1) F192[Subject tosubsection (3), the Minister may] by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Every regulation under this Act and every order under this Act (other than an order under section 2, subsection (4) or (5) of section 18 F193[…] or section 27(1)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

F194[(3) In relation to any matter referred to inParts 2Cto2Has prescribed, to be prescribed or otherwise to be provided for by the Minister in regulations—

(a) where the regulations in question relate wholly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to, the Commission, such regulations may be made by the Minister after consulting with the Minister for the Environment, Climate and Communications,

(b) where the regulations in question relate wholly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to, the Commission for Communications Regulation, such regulations may be made by the Minister for the Environment, Climate and Communications after consulting with the Minister, and

(c) where the regulations in question relate jointly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to both the Commission and the Commission for Communications Regulation, such regulations may be made by the Minister after consulting with the Minister for the Environment, Climate and Communications,

and in this Act, "relevant Minister" shall accordingly be interpreted as the Minister or the Minister for the Environment, Climate and Communications as the case may be.]

53. Expenses.

53.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

54. Provision with respect to fees payable under this Act.

54.—The Public Offices Fees Act, 1879, shall not apply to fees payable under this Act.

55. Saving and transitional provisions.

55.—Schedule 2 shall have effect for the purposes of this Act.

55A. F195[ Non-applicability of limitation periods to certain actions

55A.—(1) The matters referred to insubsection (2)may be brought, made or taken, as the case may be, by the competent authority at any time, notwithstanding—

(a) any provision (other than section 11A) of the Statute of Limitations Act 1957, and

(b) any provision of the Statute of Limitations (Amendment) Act 1991 .

(2)Subsection (1)applies to the following matters:

(a) an action undersection 14A;

(b) issuing a prohibition notice undersection 15H;

(c) a referral undersection 15M.