Competition (Amendment) Act 2022

Type Act

Publication 2022-06-29

State In force

Source Irish Statute Book

articles 43

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

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

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

(16) The Court may award the costs of an appeal in accordance with subsection (9) of section 15X.

(17) In this section, ‘Court’ means the High Court.

Court confirmation of decision on certain administrative sanctions

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

(b) The application under paragraph (a) may be made by the competent authority on an ex parte basis provided that the undertaking or association of undertakings to which the application relates informs the competent authority in writing that it agrees to the application being made ex parte.

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

(b) Notice of an application under subsection (1) shall be served by the competent authority on the undertaking or association of undertakings the subject of a decision under section 15X within 7 working days of the competent authority lodging the application in Court.

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

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

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

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

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

(b) the sanction or remedy imposed was manifestly—

(i) disproportionate,

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

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

(4) The Court—

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

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

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

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

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

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

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

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

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

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

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

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

(8) A decision made under section 15X imposing an administrative financial sanction, an Article 16(2) periodic penalty payment or structural or behavioural remedies in accordance with section 15Z shall not have effect until the later of—

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

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

(ii) where an appeal under section 15AY has been brought, the date on which the Court confirms the decision in accordance with subsection (10) of that section,

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

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

(ii) the date on which the time for appealing against the result of the appeal under section 15AAB has expired without an appeal having been brought.

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

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

(11) In this section, ‘Court’ means the High Court.

Judicial review

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

(b) Where a question has been referred under subsection (1), the adjudication officer shall not, in relation to a referral under section 15M to which the hearing relates—

(i) make a decision under section 15X to which the question is relevant while the reference to the Court is pending, or

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

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

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

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

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

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

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

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

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

(a) in respect of decisions or other acts under Parts 2C, 2D and 2G, not later than 28 working days, or

(b) in respect of decisions or other acts under Parts 2E and 2F, not later than 8 weeks,

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

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

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

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

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

(8) (a) An application for leave under this section shall be made by motion ex parte and shall be grounded in the manner specified in Order 84 in respect of an ex parte motion for leave.

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

(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of an ex parte motion for leave)—

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

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

(9) The Court may—

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

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

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

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

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

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

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

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

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

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

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

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

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

(16) In this section, ‘Court’ means the High Court.

Appeals to the Court of Appeal

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

(2) The determination of the High Court on—

(a) an appeal under section 15AY against a prohibition notice,

(b) an application for confirmation under section 15AZ,

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

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

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

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

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

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

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

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

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

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

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

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

Conduct of proceedings

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

Treatment of amounts paid in respect of administrative financial sanctions

15AAD. A payment received by the competent authority of any amount due to it pursuant to a decision confirmed or replaced under section 15AY or confirmed under section 15AZ or pursuant to a decision under section 15X in respect of periodic penalty payments shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.

Recovery of amounts of administrative financial sanctions and periodic penalty payments due

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

PART 3 Miscellaneous amendments to Principal Act

14. Amendment of section 18 of Principal Act

14. Section 18 of the Principal Act is amended—

(a) by the insertion of the following subsections after subsection (3):

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

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

(b) was not notified under subsection (3),

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

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

and

(b) in subsection (2)(c)—

(i) by the substitution of the following subparagraph for subparagraph (i):

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

and

(ii) by the substitution of the following subparagraph for subparagraph (ii):

“(ii) notwithstanding paragraph (b), that part of an undertaking mentioned in section 16(1)(c) shall, for the purposes of paragraph (a) or (b) of subsection (1) but not so as to place on it an obligation to notify the Commission of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition.”,

(c) in subsection (9), by the substitution of “subsection (1), section 18A(1) or section 20(2) an undertaking, the person in control of an undertaking, or (in the case of section 20(2) ) other person” for “subsection (1) or section 20(2) an undertaking, or the person in control of an undertaking”, and

(d) by the insertion of the following subsection after subsection (14):

“(15) Summary proceedings in relation to an offence under subsection (9) may be brought by the Commission.”.

15. Insertion of sections 18A and 18B into Principal Act

15. The Principal Act is amended by the insertion of the following sections after section 18:

“Power to require notification of below threshold mergers or acquisitions

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

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

(b) has not been notified to the Commission under section 18(3) or 18(3A), and

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

(3) A requirement under subsection (2) shall—

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

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

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

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

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

(4) Where an undertaking of which a requirement is made under subsection (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 to paragraph (b), sections 18(8), 18(12), 19, 20, 21 and 22 shall apply to a notification under subsection (2) as if it were a notification under section 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) of section 19 shall not apply to the merger or acquisition.

(6) Where an undertaking does not comply with a requirement to notify a merger or acquisition under subsection (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 with section 20 as if a notification had been received by the Commission in respect of it on the last day of the period specified in the requirement under subsection (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 of section 18B will apply mutatis mutandis to any measures so imposed.

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 under section 18(1), 18(3), 18(3A), 18(12A) or 18A, 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 under subsection (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 under section 21 or section 22 in 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 in subsection (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 of section 18(11) ), shall be guilty of an offence and shall, subject to subsection (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) in paragraph (a) of that subsection, “€300” were substituted for “€3,000”, and

(b) in paragraph (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.”.

16. Amendment of section 19 of Principal Act

16. Section 19 of the Principal Act is amended—

(a) in subsection (1), by the insertion of “or in relation to which the Commission has made a requirement under section 18A(1) before it is put into effect,” after “in accordance with that subsection,”,

(b) by the substitution of the following subsection for subsection (2):

“(2) Any such merger or acquisition which purports to be put into effect, where that putting into effect contravenes subsection (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 with section 21(2)(a), or

(b) where the Commission makes a determination pursuant to section 21(2)(b) to carry out an investigation under section 22 in relation to the merger or acquisition, until a determination is issued under paragraph (a) or (c) of section 22(3).”,

(c) in subsection (6)(b), by the substitution of “a notification of a merger or acquisition, a requirement or requirements of one or more of the undertakings involved in such merger or acquisition” for “the notification of the merger or acquisition concerned under section 18, a requirement or requirements of one or more of the undertakings concerned”,

(d) by the insertion of the following subsections after subsection (6):

“(6A) For the purposes of subsection (6), a requirement made under section 20(2) shall be deemed to be complied with on and from the date on which the Commission was provided with a certification under section 20(2)(b)(ii) where—

(a) the Commission confirms, by way of a notification under section 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 under section 20(2)(c) within 10 working days of being provided with the certification.

(6B) Where the Commission confirms, by way of a notification under section 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 of subsection (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 under subsection (6B), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes of subsection (6A) on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.”,

and

(e) by the insertion of the following subsections after subsection (9):

“(10) Where a merger or acquisition is put into effect, or purports to be put into effect, in contravention of subsection (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 of section 18(11)), shall be guilty of an offence and shall, subject to subsection (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) in paragraph (a) of that subsection, ‘€300’ were substituted for ‘€3,000’, and

(b) in paragraph (b) of that subsection, ‘€25,000’ were substituted for ‘€250,000’.”.

17. Amendment of section 20 of Principal Act

17. Section 20 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (2):

“(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 under paragraph (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 under paragraph (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.”,

(b) by the substitution of the following subsection for subsection (2A):

“(2A) If, before the expiration of the period specified in a notice under subsection (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 under subsection (2) within the specified period as so extended.”,

and

(c) in subsection (2B), by the substitution of “an undertaking or person referred to in subsection (2A)” for “the undertaking or undertakings concerned”.

18. Amendment of section 22 of Principal Act

18. Section 22 of the Principal Act is amended—

(a) by the insertion of the following subsection after subsection (3):

“(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 under section 21(2)(a) or 22(3)(a) or (c), and

(b) that is a merger or acquisition—

(i) to which paragraph (a) or (b) of section 18(1) applies, or

(ii) that has been notified to the Commission in accordance with section 18(3), 18(3A) or 18A(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.”,

(b) in subsection (4A), by the substitution of “a requirement or requirements of an undertaking involved in the merger or acquisition concerned” for “a requirement or requirements of one or more of the undertakings concerned”, and

“(4AA) For the purposes of subsection (4A), a requirement under section 20(2) shall be deemed to be complied with on and from the date on which the Commission was provided with a certification under section 20(2)(b)(ii) where—

(a) the Commission confirms, by way of a notification under section 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 under section 20(2)(c) within 10 working days of being provided with the certification.

(4AB) Where the Commission confirms, by way of a notification under section 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 of subsection (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 under subsection (4AB), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes of subsection (4A) on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.”.

19. Amendment of section 47B of Principal Act

19. Section 47B of the Principal Act is amended, in subsection (2), by the substitution of the following paragraph for paragraph (b):

“(b) the power to prosecute an offence under section 6 or 7, or to pursue administrative sanctions proceedings or for relief under section 14.”.

20. Amendment of section 47E of Principal Act

20. Section 47E of the Principal Act is amended, in subsection (1), by the substitution of “Part 2 (section 4(3) excepted), Part 2C and Part 2D” for “Part 2 (section 4(3) excepted)”.

21. Insertion of section 47H in Principal Act

21. The Principal Act is amended by the insertion of the following section after section 47G:

“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);

(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 under Parts 2C to 2G, 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 under Parts 2C to 2G in 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.”.

22. Amendment of section 52 of Principal Act

22. Section 52 of the Principal Act is amended—

(a) by the substitution, in subsection (1), of “Subject to subsection (3), the Minister may” for “The Minister may”, and

(b) by the insertion of the following subsection after subsection (2):

“(3) In relation to any matter referred to in Parts 2C to 2H as 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.”.

23. Non-applicability of limitation periods to certain actions

23. The Principal Act is amended by the insertion of the following section after section 55:

“55A. (1) The matters referred to in subsection (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 under section 14A;

(b) issuing a prohibition notice under section 15H;

PART 4 Amendments to Act of 2014

24. Amendment of section 2 of Act of 2014

24. Section 2 of the Act of 2014 is amended by the insertion of the following definitions:

“‘Regulation of 2003’ means Regulation (EC) No. 1/2003 of 16 December 2002[^8] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

‘relevant competition law’ has the same meaning as it has in the Act of 2002;”.

25. Amendment of section 10 of Act of 2014

25. Section 10 of the Act of 2014 is amended—

(a) in paragraph (c) of subsection (1), by the substitution of “on its own initiative, in response to a complaint made to it by any person, or to assist with an investigation conducted by the European Commission or a competition authority of another Member State in accordance with the Regulation of 2003,” for “either on its own initiative or in response to a complaint made to it by any person,

(b) by the substitution of the following subsection for subsection (6):

“(6) The Commission may delegate the performance of any of its functions to any member of the Commission, to any member of its staff duly authorised in that behalf by the Commission or to any authorised officer duly authorised in that behalf by the Commission.”,

and

“(ca) the referral of a matter to an adjudication officer for decision under section 15M of the Act of 2002,”.

26. Amendment of section 18 of Act of 2014

26. Section 18 of the Act of 2014 is amended, in subsection (4), by the substitution of “A person who, other than in relation to an investigation, hearing or any other matter under Part 2C of the Act of 2002” for “A person who”.

27. Amendment of section 20 of Act of 2014

27. Section 20 of the Act of 2014 is amended by the insertion of the following subsection after subsection (4):

“(5) A direction given by the Minister under subsection (1) shall not be given to, nor apply to—

(a) adjudication officers appointed under section 15O of the Act of 2002, or

(b) assistants to adjudication officers appointed under section 15R of the Act of 2002.”.

28. Amendment of section 24 of Act of 2014

28. Section 24 of the Act of 2014 is amended, in subsection (1), by the substitution of “Notwithstanding section 25, and section 15AV of the Act of 2002,” for “Notwithstanding section 25”.

29. Amendment of section 25 of Act of 2014

29. Section 25 of the Act of 2014 is amended—

(a) by the substitution of the following subsections for subsections (1) and (2):

“(1) A person shall not, unless authorised by the competent authority, or by a member of the staff of the competent authority duly authorised in that behalf so to do, or required by law, disclose confidential information obtained by him or her in his or her capacity, or while performing duties as—

(a) a member of the competent authority,

(b) a member of the staff of the competent authority,

(d) a person engaged by the competent authority in any other capacity, or

(e) an adjudication officer appointed under the Act of 2002.

(2) Subsection (1) shall not apply to—

(a) a communication made by a member of the competent authority, a member of the staff of the competent authority, an authorised officer, or an adjudication officer in the performance of any of his or her functions under this Act, being a communication the making of which was necessary for the performance by the member, member of the staff of the competent authority, authorised officer or adjudication officer of any such function, or

(b) the disclosure by a member of the competent authority, a member of the staff of the competent authority, an authorised officer or an adjudication officer to any person or body mentioned in paragraphs (a) to (q) of section 24(1) of information which, in the opinion of the member, member of the staff of the competent authority, authorised officer or adjudication officer, may relate to the commission of an offence (whether an offence under this Act or not).”,

(b) in subsection (4), by the substitution of the following paragraph for paragraph (b):

“(b) by or on behalf of a competent authority to another competent authority or to the Minister.”,

(c) in subsection (4)(a) and (5), by the substitution of “competent authority” for “Commission” in each place that it appears, and

(d) by the insertion of the following subsections after subsection (5):

“(6) Nothing in this section shall prevent the disclosure by a person of material in accordance with section 15AX of the Act of 2002.

(7) In this section, ‘competent authority’ has the meaning it has in the Act of 2002.”.

30. Amendment of section 27 of Act of 2014

30. The Act of 2014 is amended by the substitution of the following section for section 27:

“27. (1) Subject to subsection (2), the chairperson of the Commission or a member of the Commission shall, at the request in writing of a Committee, attend before it to give account for the general administration of the Commission.

(2) The chairperson of the Commission or a member of the Commission shall not be required to give account before a Committee in relation to—

(a) any matter which is or has been, or which the Commission has reason to think may in the future be, the subject of proceedings before an adjudication officer or before a court or tribunal in the State,

(b) any matter specified in paragraphs (a) to (d) of section 10(7),

(d) the powers and functions of adjudication officers.

(3) Where the chairperson or a member of the Commission is of the opinion that a matter in respect of which he or she is requested to give an account before a committee is a matter to which subsection (2) applies, he or she shall inform the Committee of that opinion and the reasons for the opinion and, unless the information is conveyed to the committee at a time when he or she is before it, the information shall be so conveyed in writing.

(4) Where a chairperson or member of the Commission has informed a Committee of his or her opinion in accordance with subsection (3) and the Committee does not withdraw the requirement referred to in subsection (2) in so far as it relates to a matter the subject of that opinion—

(a) the chairperson or member may, not later than 21 days after being informed by the Committee of its decision not to do so, apply to the High Court in a summary manner for determination of the question whether the matter is one to which subsection (2) applies, or

(b) the Chairperson of the Committee may, on behalf of the Committee, make such an application,

and the High Court shall determine the matter.

(5) Pending the determination of an application under subsection (4), the chairperson or member of the Commission shall not attend before the Committee to give account for the matter the subject of the application.

(6) If the High Court determines that subsection (2) applies to the matter concerned, the Committee shall withdraw the requirement referred to in subsection (2), but if the High Court determines that subsection (2) does not apply, the chairperson or member of the Commission shall attend before the Committee and give account for the matter.

(7) In the performance of his or her duties under this section, the chairperson of the Commission or a member of the Commission shall not question or express an opinion on—

(a) the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy, or

(b) the carrying out of the functions of an adjudication officer.

(8) In this section—

‘adjudication officer’ means an adjudication officer appointed in respect of the Commission in accordance with the Act of 2002;

‘Committee’ means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in section 26 or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a sub-Committee of such a Committee.”.

31. Amendment of section 33 of Act of 2014

31. Section 33 of the Act of 2014 is amended by—

(a) the substitution of “the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002” for “the High Court” in each place it occurs, and

(b) in subsection (5), by the substitution of “the court, or the adjudication officer as the case may be,” for “the court” in each place it occurs.

32. Amendment of section 34 of Act of 2014

32. Section 34 of the Act of 2014 is amended by the substitution of the following definition for the definition of “records”:

“‘records’ includes, in addition to records in writing—

(a) discs, tapes, sound-tracks or other devices in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(b) films, tapes or other devices in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form,

(d) any form of data or digital communications,

and a reference to a copy of records includes, in the case of records falling within paragraph (a) only, a transcript of the sounds or signals embodied therein, in the case of records falling within paragraph (b), a still reproduction of the images embodied therein and, in the case of records falling within both of those paragraphs, such a transcript and such a still reproduction;”.

33. Amendment of section 37 of Act of 2014

33. Section 37 of the Act of 2014 is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) For the purpose of—

(a) obtaining any information which may be required in relation to a matter under investigation under the Act of 2002 or Article 101 or 102 of the Treaty on the Functioning of the European Union,

(b) carrying out any inspection or other fact-finding measure on behalf and for the account of a competition authority of another Member State in accordance with Article 22(1) of the Regulation of 2003,

(c) undertaking inspections considered necessary by, or ordered by, the European Commission with which the Commission has been requested to assist in accordance with Article 22(2) of the Regulation of 2003, or

(d) assisting the European Commission with an inspection conducted by the European Commission in accordance with Article 20 or 21 of the Regulation of 2003,

an authorised officer may, on production of a warrant issued under subsection (3) or (3A) authorising him or her to exercise one or more specified powers under subsection (2), exercise that power or those powers,

(b) in subsection (2)—

(i) by the substitution of the following paragraph for paragraph (a):

“(a) to enter, if necessary by reasonable force, and search—

(i) any place at which, or any vehicle with which, any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business, is carried on, or

(ii) any place at which books, documents or records relating to the carrying on of a business referred to in subparagraph (i) are being kept,

including, but not limited to, any place occupied by a director, manager or any member of staff of an undertaking that carries on an activity or of an association of undertakings that carry on activities;”,

(ii) by the substitution of the following paragraph for paragraph (c):

“(c) to seize and retain any books, documents, records, computers or any other storage medium in which any record is kept relating to an activity found at any place referred to in paragraph (a) or (b) and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents, records, computers or media including—

(i) taking or obtaining, in any form, copies of or extracts from such books, documents or records, and

(ii) continuing, at any time, to search books, documents or records so seized, or any copies made thereof or extracts taken therefrom, at a premises other than the premises so entered;”,

(iii) in paragraph (g), by the substitution of “paragraph (a);” for “paragraph (a).”,

(iv) by the insertion of the following paragraphs after paragraph (g):

“(h) to require any person who appears to the authorised officer to be in a position to facilitate access to documents or records stored in any data equipment or computer, or which can be accessed by the use of that data equipment or computer, to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by—

(i) providing the documents or records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible,

(ii) giving to the authorised officer any password necessary to make the documents or records concerned legible and comprehensible, or

(iii) otherwise enabling the authorised officer to examine the documents or records in a form in which they are legible and comprehensible;

(i) where the authorised officer considers it necessary to do so in order to preserve for inspection records, documents or any other matter, to secure, for later inspection, and for such period as may reasonably be necessary for the purposes of the exercise of the authorised officer’s powers under this section—

(i) documents or records accessed or found during a search under this section, and any data equipment, including any computer, in which those documents or records may be held, and

(ii) a place entered pursuant to this section, or any part of such place.”,

(i) by the substitution of “Subject to subsection (3A), if a judge” for “If a judge”, and

(ii) by the substitution of “an offence under the Act of 2002, or an infringement, whether or not the infringement is criminal in nature, of relevant competition law, within the meaning of the Act of 2002,” for “an offence under the Act of 2002”,

and

(d) by the insertion of the following subsection after subsection (3):

“(3A) Where an authorised officer provides information on oath to a judge of the District Court for the purpose of a warrant being issued in relation to an inspection referred to in subsection (1)(d)—

(a) the information on oath so provided shall include—

(i) a statement to the effect that the information on oath is being provided in relation to an inspection referred to in subsection (1)(d), and

(ii) sufficient information to allow the judge of the District Court to discharge his or her functions under the Regulation of 2003,

(b) before issuing the warrant, the judge of the District Court shall—

(i) where the warrant would, if issued, authorise the authorised officer to exercise powers under subsection (2) in relation to any place or land other than that referred to in subparagraph (ii), including the home or private vehicle of a director, manager or any member of staff of an undertaking, have regard to the matters referred to in Article 21(3) of the Regulation of 2003, and

(ii) where the warrant would, if issued, authorise the authorised officer to exercise powers under subsection (2) in relation to any place or land of an undertaking or association of undertakings, have regard to the matters referred to in Article 20(8) of the Regulation of 2003,

and

(c) the judge of the District Court, shall, where he or she is satisfied as regards the matters referred to in Article 20(8) or 21(3) of the Regulation of 2003, as the case may be, issue a warrant authorising an authorised officer (accompanied by such other authorised officers or members of the Garda Síochána or both as provided for in subsection (5) of section 35) at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place or land using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under this section.”.

34. Requests for information relating to investigations

34. The Act of 2014 is amended by the insertion of the following section after section 37:

“37A. (1) In the course of investigating a suspected infringement of relevant competition law, the Commission, or a person to whom functions relating to such an investigation have been delegated under section 10(6), may in writing require a person or undertaking under investigation to provide the Commission or delegate, as the case may be, with information that is connected to, and reasonably necessary for, the purposes of the investigation.

(2) A requirement under subsection (1)—

(a) shall specify a period of time within which it is to be complied with, which period shall be reasonable having regard to the nature of the request, the context in which the information is requested and the circumstances of the person or undertaking of whom the requirement is made, and

(b) shall not require a person or undertaking of whom it is made to admit to having infringed relevant competition law.

(3) A person or undertaking of whom a requirement under subsection (1) is made shall comply with it within the period specified in the requirement.

(4) A person who—

(a) provides the Commission or delegate, as the case may be, with information that the person knows, or ought reasonably to know, is false or misleading in a material respect, or

(b) fails, without reasonable cause, to provide information pursuant to a requirement under subsection (1),

is guilty of an offence.

(5) A person guilty of an offence under this section is liable—

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

(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both.”.

PART 5 Surveillance

35. Surveillance

35. The Criminal Justice (Surveillance) Act 2009 is amended—

(a) in section 1—

(i) in the definition of “superior officer”—

(I) in paragraph (b), by the substitution of “colonel;” for “colonel; and”,

(II) in paragraph (c), by the substitution of “principal officer; and” for “principal officer;”, and

(III) by the insertion of the following paragraph after paragraph (c):

“(d) in the case of the Competition and Consumer Protection Commission, an authorised officer not below the rank of principal officer;”,

(ii) in the definition of “relevant Minister”, by the insertion of the following paragraph after paragraph (a):

“(aa) the Minister for Enterprise, Trade and Employment, in relation to approvals granted by a superior officer of, and documents and information in the custody of, the Competition and Consumer Protection Commission,”,

and

(iii) by the insertion of the following definitions:

“‘authorised officer’ has the meaning it has in the Competition and Consumer Protection Act 2014;

‘relevant competition offence’ means an offence under section 6 of the Competition Act 2002 involving an agreement, decision or concerted practice to which subsection (2) of that section applies;”,

(b) in section 2, by the substitution, in subsection (1), of “members of the Defence Forces, officers of the Revenue Commissioners and authorised officers of the Competition and Consumer Protection Commission” for “members of the Defence Forces and officers of the Revenue Commissioners”,

(c) in section 3, by the substitution of “a member of the Defence Forces, an officer of the Revenue Commissioners or an authorised officer of the Competition and Consumer Protection Commission” for “a member of the Defence Forces or an officer of the Revenue Commissioners”,

(d) in section 4—

(i) by the insertion of the following subsection after subsection (3):

“(3A) A superior officer of the Competition and Consumer Protection Commission may apply to a judge for an authorisation where he or she has reasonable grounds for believing that, as part of an investigation being conducted by the Competition and Consumer Protection Commission concerning a relevant competition offence, the surveillance being sought to be authorised is necessary for the purposes of obtaining information as to whether the offence has been committed or as to the circumstances relating to the commission of the offence, or obtaining evidence for the purposes of proceedings in relation to the offence.”,

and

(ii) in subsection (5), by the substitution of “(3), (3A) or (4)” for “(3) or (4)”,

(e) in section 5—

(i) in subsection (2)(a), by the substitution of “(2), (3) or (3A)” for “(2) or (3)”, and

(ii) in subsection (7), by the substitution of “Forces, any authorised officer of the Competition and Consumer Protection Commission or any officer of the Revenue Commissioners” for “Forces, or any officer of the Revenue Commissioners”,

(f) in section 7—

(i) in subsection (1), by the substitution of “a member of the Defence Forces, an officer of the Revenue Commissioners or an authorised officer of the Competition and Consumer Protection Commission” for “a member of the Defence Forces or an officer of the Revenue Commissioners”,

(ii) in subsection (2)—

(I) by the substitution of “(2), (3) or (3A)” for “(2) or (3)”, and

(II) by the substitution of “arrestable offence, revenue offence or relevant competition offence, as the case may be” for “arrestable offence or a revenue offence, as the case may be” in each place it occurs,

(iii) in subsection (7)(c), by the substitution of “member of the Defence Forces, officer of the Revenue Commissioners or authorised officer of the Competition and Consumer Protection Commission” for “member of the Defence Forces or officer of the Revenue Commissioners”, and

(iv) in subsection (12), by the insertion of the following paragraph after paragraph (aa):

“(ab) in the case of an authorised officer of the Competition and Consumer Protection Commission, to a member of the Competition and Consumer Protection Commission within the meaning of section 12 of the Competition and Consumer Protection Act 2014,”,

(g) in section 8—

(ii) in subsection (2)(a), by the substitution of “(2), (3) or (3A)” for “(2) or (3)”,

(iv) in subsection (10), by the insertion of the following paragraph after paragraph (aa):

“(ab) in the case of an authorised officer of the Competition and Consumer Protection Commission, a member of the Competition and Consumer Protection Commission within the meaning of section 12 of the Competition and Consumer Protection Act 2014,”,

(h) in section 11—

(i) in subsection (5)(c), by the insertion of the following subparagraph after subparagraph (ia):

“(ib) the Minister for Enterprise, Trade and Employment, in the case of a contravention by the Competition and Consumer Protection Commission,”,

and

(ii) in subsection (10), by the substitution of “Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission” for “Defence Forces or the Revenue Commissioners”,

(i) in section 12(5), by the substitution of “Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission” for “Defence Forces or the Revenue Commissioners”,

(j) in section 13(4)—

(i) in the definition of “authorised person”—

(I) by the insertion of the following paragraph after paragraph (b):

“(ba) the Minister for Enterprise, Trade and Employment,”,

and

(II) in subparagraph (i) of paragraph (d), by the substitution of “the Chief of Staff of the Defence Forces, a Revenue Commissioner or the chairperson of the Competition and Consumer Protection Commission” for “the Chief of Staff of the Defence Forces or a Revenue Commissioner”,

and

(ii) in the definition of “relevant person”—

(I) by the insertion of the following paragraph after paragraph (ba):

“(bb) a member of, a member of the staff of, or an authorised officer of the Competition and Consumer Protection Commission,”,

and

(II) in paragraph (e), by the substitution of “the Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission” for “the Defence Forces or the Revenue Commissioners”,

(k) in section 14—

(i) by the substitution of the following subsection for subsection (1):

“(1) Evidence obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8—

(a) may be admitted as evidence in criminal proceedings, and

(b) shall not be admitted as evidence in proceedings other than criminal proceedings, or used for the purpose of investigating any matter other than a criminal matter.”,

and

(ii) by the substitution of “member of the Defence Forces, officer of the Revenue Commissioners or authorised officer of the Competition and Consumer Protection Commission” for—

(I) “member of the Defence Forces or officer of the Revenue Commissioners” in subsection (4)(a), and

(II) “member of the Defence Forces or an officer of the Revenue Commissioners” in subsection (5),

(l) in section 15(2)(c), by the substitution of “Defence Forces, the Revenue Commissioners or the Competition and Consumer Protection Commission” for “Defence Forces or the Revenue Commissioners”, and

(m) in section 16(1), by the substitution of “the Minister for Defence, the Minister for Finance and the Minister for Enterprise, Trade and Employment” for “the Minister for Defence and the Minister for Finance”.

PART 6 Amendment of Communications Regulation Act 2002

36. Amendment of section 34 of Communications Regulation Act 2002

36. Section 34 of the Communications Regulation Act 2002 is amended—

(a) in subsection (1), by the substitution of “Subject to subsection (3), the chairperson of the Commission shall” for “The chairperson of the Commission shall”,

(b) in subsection (2), by the substitution of “Subject to subsection (3), from time to time” for “From time to time”, and

“(3) The chairperson of the Commission shall not be required to give evidence in relation to, or account for, the functions of adjudication officers appointed in respect of the Commission in accordance with the Competition Act 2002.”.

37. Amendment of section 39 of Communications Regulation Act 2002

37. Section 39 of the Communications Regulation Act 2002 is amended—

(a) in subsection (3), by the substitution of “this Act, the Competition Act 2002 (other than functions related to obtaining information which may be required in relation to a matter under investigation under relevant competition law), a transferred function or any regulations made under the Act of 1972” for “this Act, the Competition Act 2002, a transferred function or any regulations made under the Act of 1972”,

(b) by the insertion of the following subsections after subsection (3):

“(3A) For the purpose of—

(a) obtaining any information which may be required in relation to a matter under investigation under relevant competition law,

(d) assisting the European Commission with an inspection conducted by the European Commission in accordance with Article 20 or 21 of the Regulation of 2003,

an authorised officer may, on production of a warrant issued under section 40A or 40B authorising him or her to exercise one or more specified powers under subsection (3B), exercise that power or those powers.

(3B) The powers referred to in subsection (3A) are the following:

(a) to enter, if necessary by reasonable force, and search—

(ii) any place at which books, documents or records relating to the carrying on of a business referred to in subparagraph (i) are being kept,

(b) to enter, if necessary by reasonable force, and search any place occupied by a director, manager or any member of staff of an undertaking that carries on an activity or of an association of undertakings that carry on activities, being, in either case, a place in respect of which there are reasonable grounds to believe books, documents or records relating to the carrying on of that activity or those activities are being kept;

(c) to seize and retain any books, documents, records, computers or any other storage medium in which any record is kept relating to an activity found at any place referred to in paragraph (a) or (b) and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents, records, computers or media including—

(i) taking or obtaining, in any form, copies of or extracts from such books, documents or records, and

(ii) continuing, at any time, to search books, documents or records so seized, or any copies made thereof or extracts taken therefrom, at a premises other than the premises so entered;

(d) to require any person who carries on an activity referred to in paragraph (a) and any person employed in connection therewith to—

(i) give to the authorised officer his or her name, home address and occupation, and

(ii) provide to the authorised officer any books, documents or records relating to that activity which are in that person’s power or control, and to give to the officer such information as he or she may reasonably require in regard to any entries in such books, documents or records, and where such books, documents or records are kept in a non-legible form to reproduce them in a legible form;

(e) to inspect and take copies of or extracts from any such books, documents or records, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form;

(f) to require a person mentioned in paragraph (d) to give to the authorised officer any information he or she may require in regard to the persons carrying on the activity referred to in paragraph (a)(including in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and its committee of management or other controlling authority) or employed in connection therewith;

(g) to require a person mentioned in paragraph (d) to give to the authorised officer any other information which the officer may reasonably require in regard to the activity referred to in paragraph (a);

(h) to require any person who appears to the authorised officer to be in a position to facilitate access to documents or records stored in any data equipment or computer, or which can be accessed by the use of that data equipment or computer, to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by—

(i) providing the documents or records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible,

(ii) giving to the authorised officer any password necessary to make the documents or records concerned legible and comprehensible, or

(iii) otherwise enabling the authorised officer to examine the documents or records in a form in which they are legible and comprehensible;

(i) documents or records accessed or found during a search under this section, and any data equipment, including any computer, in which those documents or records may be held, and

(ii) a place entered pursuant to this section, or any part of such place.”,

(d) in subsection (5), by the substitution of “An authorised officer, other than where exercising functions in relation to a matter under investigation under relevant competition law, shall not” for “An authorised officer shall not,”, and

(e) by the insertion of the following subsections after subsection (7):

“(8) Where a member of the Garda Síochána arrests, whether in a Garda Síochána station or elsewhere, a person whom he or she, with reasonable cause, suspects of committing or of having committed an offence under section 6 or 7 of the Competition Act 2002 and the person has been taken to and detained in a Garda Síochána station, or if the person is arrested in a Garda Síochána station, has been detained in the station, pursuant to section 4 of the Criminal Justice Act 1984, an authorised officer or officers (but not more than 2 such officers) may, if and for so long as the officer or officers is, or are, accompanied by a member of the Garda Síochána, attend at, and participate in, the questioning of a person so detained in connection with the investigation of the offence, but only if the member of the Garda Síochána requests the authorised officer or officers to do so and the member is satisfied that the attendance at, and participation in, such questioning of the authorised officer or officers is necessary for the proper investigation of the offence concerned.

(9) An authorised officer who attends at, and participates in, the questioning of a person in accordance with subsection (8) may not commit any act or make any omission which, if committed or made by a member of the Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984.

(10) An act committed or omission made by an authorised officer who attends at, and participates in, the questioning of a person in accordance with subsection (9) which, if committed or made by a member of the Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984 shall not of itself render the authorised officer liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her.

(11) Where a person is before a court charged with an offence under section 6 or 7 of the Competition Act 2002, a copy of any recording of the questioning of the person by a member of the Garda Síochána or authorised officer while he or she was detained in a Garda Síochána station, or such questioning elsewhere, in connection with the investigation of the offence shall be given to the person or his or her legal representative only if the court so directs and subject to such conditions (if any) as the court may specify.

(12) A recording referred to in subsection (11) of the questioning of a person shall not be given to the person by the Garda Síochána except in accordance with a direction or order of a court made under that subsection or otherwise.

(13) A court may admit in evidence at the trial of a person in respect of an offence under section 6 or 7 of the Competition Act 2002—

(a) a recording by electronic or similar means, or

(b) a transcript of such a recording,

or both, of the questioning of the person by a member of the Garda Síochána or authorised officer at a Garda Síochána station or elsewhere in connection with the investigation of the offence.

(14) Any statement made by the person concerned that is recorded in a recording which is admitted in evidence under subsection (13) may be admissible in evidence at the trial concerned notwithstanding the fact that—

(a) it was not taken down in writing at the time it was made, or

(b) that statement is not in writing and signed by the person who made it,

or both.

(15) Subsections (13) and (14) shall not affect the admissibility in evidence at the trial of a person in respect of an offence of any statement that is recorded in writing made by the person during questioning by a member of the Garda Síochána or authorised officer at a Garda Síochána station or elsewhere in connection with the investigation of the offence (whether or not that statement is signed by the person) and irrespective of whether the making of that statement is recorded by electronic or similar means.

(16) Section 9 of the Criminal Law Act 1976 shall apply in relation to a search carried out by an authorised officer pursuant to a warrant issued under subsection (3) or (3A) as it applies to a search carried out by a member of the Garda Síochána in the course of exercising his or her powers under that Act.

(17) In this section—

‘recording’ means a recording on tape of—

(a) an oral communication, statement or utterance, or

(b) a series of visual images which, when reproduced on tape, appear as a moving picture,

or both;

‘Regulation of 2003’ means Regulation (EC) No. 1/2003 of 16 December 2002[^9] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

‘relevant competition law’ has the meaning it has in the Competition Act 2002.”.

38. Amendment of section 38D of Communications Regulation Act 2002

38. Section 38D of the Communications Regulation Act 2002 is amended by the substitution of the following subsection for subsection (2):

“(2) Subsection (1) does not apply if—

(a) the person has a reasonable excuse, or

(b) the requirement under section 38A was made in relation to an investigation, hearing or any other matter under Part 2C of the Competition Act 2002.”.

39. Requests for information relating to investigations

39. The Communications Regulation Act 2002 is amended by the insertion of the following section after section 39:

“39A. (1) In the course of investigating a suspected infringement of relevant competition law, the Commission, or an authorised officer appointed under section 39, may in writing require a person or undertaking under investigation to provide the Commission or officer, as the case may be, with information that is connected to, and reasonably necessary for, the purposes of the investigation.

(2) A requirement under subsection (1)—

(a) shall specify a period within which it is to be complied with, which period shall be reasonable having regard to the nature of the request, the context in which the information is requested and the circumstances of the person or undertaking of whom the request is made, and

(b) shall not require a person of whom it is made to admit to having contravened relevant competition law.

(3) A person or undertaking of whom a requirement under subsection (1) is made shall comply with it within the period specified in the requirement.

(4) A person who—

(a) provides the Commission or officer, as the case may be, with information that the person knows, or ought reasonably to know, is false or misleading in a material respect, or

(b) fails, without reasonable cause, to provide information pursuant to a requirement under subsection (1),

is guilty of an offence.

(5) A person guilty of an offence under this section is liable—

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

(b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both.

(6) In this section, ‘relevant competition law’ has the meaning it has in the Competition Act 2002.”.

40. Amendment of section 40 of Communications Regulation Act 2002

40. Section 40 of the Communications Regulation Act 2002 is amended by the substitution of “under section 39 other than subsection (3B) of that section.” for “under section 39”.

41. Insertion of sections 40A and 40B in Communications Regulation Act 2002

41. The Communications Regulation Act 2002 is amended by the insertion of the following sections after section 40:

“Search warrants in relation to certain competition law matters

40A. Subject to section 40B, if a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under the Competition Act 2002 or an infringement, whether or not the infringement is criminal in nature, of relevant competition law (within the meaning of the Competition Act 2002) is to be found in any place, the judge may issue a warrant authorising an authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under section 39(3B).

Search warrants relevant to assisting the European Commission with an inspection

40B. Where an authorised officer provides information on oath to a judge of the District Court for the purpose of a warrant being issued in relation to an inspection referred to in paragraph (d) of section 39(3A)—

(a) the information on oath so provided shall include—

(i) a statement to the effect that the information on oath is being provided in relation to an inspection referred to in paragraph (d) of section 39(3A), and

(ii) sufficient information to allow the judge of the District Court to discharge his or her functions under the Regulation of 2003,

(b) before issuing the warrant, the judge of the District Court shall—

(i) where the warrant would, if issued, authorise the authorised officer to exercise powers under section 39(3B) in relation to any place or land other than that referred to in subparagraph (ii), including the home or private vehicle of a director, manager or any member of staff of an undertaking, have regard to the matters referred to in Article 21(3) of the Regulation of 2003, and

(ii) where the warrant would, if issued, authorise the authorised officer to exercise powers under section 39(3B) in relation to any place or land of an undertaking or association of undertakings, have regard to the matters referred to in Article 20(8) of the Regulation of 2003,

and

(c) the judge of the District Court, shall, where he or she is satisfied as regards the matters referred to in Article 20(8) or 21(3) of the Regulation of 2003, as the case may be, issue a warrant authorising an authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place or land using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under section 39(3B).”.

PART 7 Amendment of Consumer Protection Act 2007

42. Amendment of Consumer Protection Act 2007

42. Schedule 9 (inserted by section 81 of the Competition and Consumer Protection Act 2014) of the Consumer Protection Act 2007 is amended—

(a) in column (1), by the insertion of “S.I. No. 345 of 2016” and, in column (2) opposite that reference, by the insertion of “European Union (Low Voltage Electrical Equipment) Regulations 2016”, and

(b) in column (1), by the insertion of “S.I. No. 136 of 2018” and, in column (2) opposite that reference, by the insertion of “European Union (Personal Protective Equipment) Regulations 2018”.

PART 8 Amendment of National Standards Authority of Ireland Act 1996

43. Amendment of section 12 of National Standards Authority of Ireland Act 1996

43. Section 12 of the National Standards Authority of Ireland Act 1996 is amended—

(a) in subsection (2), by the substitution of “this section” for “subsection (1)”, and

(b) by the insertion of the following subsections after subsection (2):

“(3) Without prejudice to the generality of subsection (1), the Authority shall, subject to the consent of the Minister, have power to charge, receive and recover such fees as it considers appropriate from any person, other than the Minister, in respect of, or connected with, the performance by it of any of its functions, including functions provided for in—

(a) this Act or regulations made under this Act, or

(b) regulations made under the European Communities Act 1972.

(4) Any fee charged, received or recovered by the Authority under subsection (1) prior to the commencement of section 43 of the Competition (Amendment) Act 2022 shall be deemed to have been so charged, received or recovered in accordance with this section.

(5) The Authority may recover, as a simple contract debt in any court of competent jurisdiction, any amount due and owing to it by any person under this section.”.

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