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

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

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

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

F2[“Act of 2009” means the Broadcasting Act 2009;]

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

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

(a) structural or behavioural remedies,

(b) administrative financial sanctions under section 15AA, or

(c) periodic penalty payments,

and "administrative sanctions proceedings" shall be interpreted accordingly;

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

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

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

F4[“authorised officer”—

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

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

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

F6[…]

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

(a) obstructing or impeding the exercise by—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) the allocation of production or sales quotas;

(c) the sharing of markets;

(d) the sharing of customers;

(e) bid-rigging;

(f) restrictions of imports or exports;

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

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

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

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

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

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

“competent authority”—

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

(b) if the Competition Authority and the F5[Commission for Communications Regulation] have, under section 47E, agreed that the F5[Commission for Communications Regulation] should, in relation to a particular matter, perform the functions conferred on the relevant authority by Part 2, or the Minister has made a determination under that section that the F5[Commission for Communications Regulation] should exercise those functions in relation to that matter, also means the F5[Commission for Communications Regulation];

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

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

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

“Council” means the Council of the European Communities;

F2[“Council Regulation” means Council Regulation (EC) No. 139/2004 of 20 January 2004¹ on the control of concentrations between undertakings;]

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

F1[“Directive” means Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018² to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market;]

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

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

“electronic communications service” has the same meaning as in section 2 of the Communications Regulation Act 2002;

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

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

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

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

(c) in relation to which the European Commission has made a decision under Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002³ on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

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

F1[“hearing requirement” means a requirement imposed by an adjudication officer on an undertaking or association of undertakings under section 15V or 15W;

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

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

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

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

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

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

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

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

(a) section 4;

(b) section 5;

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

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

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

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

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

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

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

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

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

“Treaty” means the Treaty establishing the European Community;

F5[“undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service and, where the context so admits, shall include an association of undertakings.]

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

(3) Where—

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

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

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

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

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

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

4.—(1) Subject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which—

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

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

(c) share markets or sources of supply,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F8[(11) In this section—

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

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

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

(c) collusive tendering;

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

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

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

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

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

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

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

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

6.—F10[(1) An undertaking that—

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

(b) makes or implements a decision, or

(c) engages in a concerted practice,

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

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

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

shall be guilty of an offence.]

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

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

(b) limit output or F10[sales,]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

shall be guilty of an offence.]

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

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

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

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

(b) involves—

(i) price fixing,

(ii) market sharing,

(iii) output restrictions,

(iv) bid-rigging,

(v) collective boycott agreements,

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

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

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

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

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

(ii) engage in bid-rigging,

(iii) limit output or sales, or

(iv) share markets or customers,

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

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

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

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

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

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

(2) In administrative proceedings in respect of a breach of section 4 or 5 or of Article 101 or Article 102 of the Treaty on the Functioning of the European Union—

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

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

(3) In this section—

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

(a) a prohibition notice;

(b) a statement of objections under section 15L;

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

(d) administrative sanctions;

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

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

(a) on summary conviction—

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

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

F18[(b) on conviction on indictment—

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

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

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

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

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

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

(a) in the case of subsection (1)—

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

(ii) in paragraph (b)—

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

(II) references to imprisonment were disregarded,

and

(b) in the case of subsection (2)—

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

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

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

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

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

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

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

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

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

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

F20[(11A) Section 1(1) of the Probation of Offenders Act 1907 shall not apply in relation to an offence under section 6 or 7.

(11B) F21[…]

(11C) F21[…]]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13.—F25[…]

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

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

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

(2) F27[…]

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

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

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

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

(b) damages F29[…].

(6) F27[…]

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

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

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

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

(ii) securing an adjustment of that position,

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

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

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

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

(a) an interim injunction,

(b) an interlocutory injunction, or

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

14A.—(1) The competent authority shall, in respect of any agreement, decision, concerted practice or abuse that is prohibited under section 4 or 5, or by Article 101 or 102 of the Treaty on the Functioning of the European Union, have a right of action under this subsection for relief against either or both of the following:

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

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

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

(3) Relief by way of injunction or declaration (including a declaration in respect of a contravention of section 4 or 5 or Article 101 or 102 of the Treaty on the Functioning of the European Union that has ceased) may be granted to the competent authority in an action under subsection (1).

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

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

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

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

(ii) securing an adjustment of that position,

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

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

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

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

(6) In this section "injunction" means—

(a) an interim injunction,

(b) an interlocutory injunction, or

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

14B.—F35[…]]

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

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

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

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

15A.— (1) In this Part—

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

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

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

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

(c) intoxicating liquors;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F40[(5) Subsections (3) and (5) of section 14A (inserted by section 4 of the Competition (Amendment) Act 2012) apply with the necessary changes for the purposes of an action under subsection (2) of this section and, for that purpose, a reference in subsections (3) and (5) of section 14A to an action under subsection (1) of that section is to be read as a reference to an action under subsection (2) of this section.]

15D. In this Part—

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

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

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

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

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

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

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

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

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

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

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

"relevant category of self-employed worker" means—

(a) a class of worker specified in Schedule 4, or

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

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

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

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

(a) false self-employed worker, or

(b) fully dependent self-employed worker,

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

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

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

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

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

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

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

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

(a) of the matters referred to in paragraphs (a) and (b) of subsection (2), and

(b) that it is appropriate to do so,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) A prohibition notice—

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

(b) shall state the reasons for that suspicion,

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

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

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

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

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

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

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

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

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

(4) As soon as is practicable after—

(a) receiving submissions under subsection (3), or

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

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

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

(ii) withdrawing the prohibition notice.

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

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

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

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

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

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

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

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

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

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

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

(b) the court under section 15AY or 15AZ, as the case may be, confirms the decision of an adjudication officer under section 15X on the matter to which the prohibition notice relates.

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

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

(a) refer the matter to the Director of Public Prosecutions for the purpose of considering commencing criminal proceedings under section 6 or 7, or

(b) bring summary proceedings under section 8(9).

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

(a) issue a statement of objections under section 15L to the undertaking or association of undertakings that, in its view, is responsible for such infringement, or

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

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

(a) commences criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings that are struck out, concluded, discontinued or otherwise determined other than by way of nolle prosequi, the competent authority shall not pursue the proceedings referred to in subsection (1)(b) or (6) against such undertaking or association of undertakings in respect of the same matter,

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

(i) proceedings referred to in subsection (1)(b), or

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

or

(c) decides not to commence criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings, the competent authority may pursue any one of the proceedings referred to in subsections (1)(b) or (6) against such undertaking or association of undertakings in respect of the same matter.

(4) Where the competent authority initiates proceedings referred to in subsection (6) against an undertaking or association of undertakings and the proceedings are not withdrawn before a decision under section 15X is made, the competent authority may not subsequently pursue any of the proceedings referred to in subsection (1), or paragraphs (b) to (d) of subsection (6), against the same undertaking or association of undertakings in respect of the same matter where—

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

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

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

(d) the proceedings have been otherwise determined, including by operation of commitments entered into under section 15AE or structural or behavioural remedies imposed under section 15X in accordance with section 15Z.

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

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

(a) administrative financial sanctions under section 15AA;

(b) commitments in accordance with section 15AE;

(c) structural or behavioural remedies under section 15Z;

(d) section 14A or 15C.]

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

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

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

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

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

(iv) the undertaking or association of undertakings concerned has failed to comply with a structural or behavioural remedy imposed under section 15X in accordance with section 15Z, or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) prepare a simplified investigation report containing—

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

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

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

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

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

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

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

(a) prepare a full investigation report containing—

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

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

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

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

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

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

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

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

and

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

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

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

(12) A person who receives—

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

(b) copies of material under subsection (2),

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

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

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

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

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

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

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

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

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

(a) forms a provisional opinion that—

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

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

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

(iv) an undertaking or association of undertakings has failed to comply with a structural or behavioural remedy ordered under section 15X in accordance with section 15Z, or

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

and

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

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

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

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

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

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

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

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

(5) The relevant Minister may prescribe—

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

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

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

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

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

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

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

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

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

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

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

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

(2) The relevant Minister may make regulations providing—

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

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

(c) for the relevant Minister to appoint—

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

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

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

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

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

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

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

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

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

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

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

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

(d) (i) An adjudication officer shall not make a decision under section 15X where the adjudication officer has been involved in decisions of the competent authority as to whether to exercise any of the powers conferred on the competent authority under, or to bring proceedings under, Part 2, 2C, 2E or 2F or sections 18 or 37 of the Act of 2014, in relation to the investigation.

(ii) An adjudication officer shall not draw up or decide upon—

(I) guidelines under section 15AF, or

(II) the policy of the competent authority or of the relevant Minister concerning—

(A) the procedures, conduct or selection of investigations under Part 2C,

(B) referrals under section 15M,

(C) the choice of enforcement mechanism under section 15K,

(D) the level of administrative financial sanctions that may be imposed under section 15X, or

(E) the level of reduction of administrative financial sanctions under Part 2E,

but may be consulted in the drawing up or deciding upon of such policy or guidelines, as the case may be.

(iii) Where a decision of a competent authority referred to in subparagraph (i) is made as a college, or in any other manner whereby a decision of a competent authority is treated as having been made by all members of the competent authority, a member of the competent authority who recused himself or herself from the process of making that decision shall, for the purposes of subparagraph (i), be deemed not to have been involved in that decision, provided that the recusal took place at a point and in a manner which does not compromise the independence of the member of a competent authority as an adjudication officer.

(2) Save where otherwise provided in this Act or in regulations made under this Act, adjudication officers shall not be subject to the direction of or accountable to or otherwise answerable to any other person in the performance of their functions under this Act.

(3) (a) The chairperson of a competent authority shall not during his or her term of office serve as an adjudication officer.

(b) A member of a competent authority may not during his or her term of office serve as Chief Adjudication Officer.

(4) (a) A member of the competent authority or a member of staff of the competent authority who is appointed as an adjudication officer or is appointed to assist an adjudication officer under section 15R shall not be required by the competent authority or by any other person to perform any duty, including any statutory duty, of a member of the competent authority, a member of staff of the competent authority, an authorised officer or an adjudication officer the performance of which is inconsistent with his or her independence as an adjudication officer or, in the case of a person appointed to assist an adjudication officer under section 15R, the independence of an adjudication officer whom he or she is assisting or may assist.

(b) If a member of a competent authority or a member of staff of the competent authority is requested to perform a duty, including any statutory duty, of the competent authority, a member of staff of the competent authority, an authorised officer or an adjudication officer the performance of which he or she considers is inconsistent with his or her independence as an adjudication officer or, in the case of a person appointed to assist an adjudication officer under section 15R, the independence of an adjudication officer whom he or she is assisting or may assist, he or she shall refuse to perform the duty and shall inform the Chief Adjudication Officer of the request and of his or her refusal.]

15Q.—(1) The relevant Minister shall make regulations—

(a) prescribing requirements upon the competent authority and adjudication officers to implement sections 15O and 15P, and

(b) providing that adjudication officers shall not be involved in investigations of suspected infringements of relevant competition law, and shall not act as authorised officers under—

(i) section 15G,

(ii) section 35 (insofar as it relates to investigations of suspected infringements of relevant competition law) of the Act of 2014, or

(iii) the Act of 2002.

(2) In a manner ensuring the independence of adjudication officers in the performance of their functions, the regulations referred to in subsection (1) shall—

(a) identify categories of, and criteria for, persons eligible for nomination by the competent authority for appointment by the relevant Minister as adjudication officers (including a Chief Adjudication Officer) and criteria for renewal of appointment of adjudication officers by the Minister, which persons may, subject to section 15P, include—

(i) members of the competent authority,

(ii) employees of the competent authority,

(iii) persons who are legally qualified,

(iv) such other persons as have, in the opinion of the competent authority and the Minister, sufficient expertise in matters of competition law, competition economics, or both, to merit such appointment, and

(v) such other persons as have, in the opinion of the competent authority and the Minister, the relevant expertise in matters likely to come before an adjudication officer,

and without prejudice to the generality of the foregoing, the competent authority may nominate, and the relevant Minister may appoint as an adjudication officer (including the Chief Adjudication Officer), a person who is not a member or employee of the competent authority,

(b) provide for—

(i) the term of appointment (including the term of appointment of a Chief Adjudication Officer), which term shall be specified in the instrument of appointment, and may be—

(I) fixed and non-renewable, or

(II) fixed and renewable based upon objective, competence-based and independently-assessed criteria referred to in paragraph (a),

(ii) the remuneration of the Chief Adjudication Officer and other adjudication officers, which remuneration may—

(I) not be reduced during the term of their appointment save in accordance with law,

(II) vary depending on the category of person appointed under paragraph (a), and

(III) be paid per diem, per piece, or periodically,

(iii) such prohibitions on the remuneration of adjudication officers during their term of office, by persons or bodies other than the competent authority, as are necessary to ensure that actual or perceived conflicts of interest do not arise in the performance of the adjudication officer’s functions,

(iv) the resignation from office of adjudication officers,

(v) procedures and criteria whereby the revocation of appointments of adjudication officers may only take place upon decision by the Government after independent assessment and recommendation by persons outside the competent authority with relevant experience and expertise and where—

(I) the adjudication officer concerned has become incapable through ill-health of effectively performing his or her functions,

(II) the adjudication officer concerned has engaged in serious misconduct, or

(III) the competent authority has been notified of an adjudication officer’s conflict of interest in more than one matter which conflict of interest is assessed to be likely to continue,

without prejudice to the automatic removal from office as an adjudication officer of an employee of the competent authority upon cessation of that employment,

(vi) the functions of the Chief Adjudication Officer and, where no Chief Adjudication Officer stands appointed, the procedure for designation of an adjudication officer to perform the functions of a Chief Adjudication Officer under this Act,

(vii) the rules concerning designation by a Chief Adjudication Officer of adjudication officers to divisions for any particular period or for any particular case or category of cases,

(viii) the rules concerning decisions by a division of adjudication officers, including the appointment and functions of chairpersons and deputy chairpersons of such divisions,

(ix) the rules concerning promotion and increments of employees of the competent authority who act as adjudication officers,

(x) the rules concerning the tasking of any employee of the competent authority to assist an adjudication officer in the performance of his or her functions under this Act, and

(xi) the rules concerning the appointment of consultants or advisers for the purpose of assisting an adjudication officer in the performance of his or her functions under this Act,

(c) make further provision for the independence of adjudication officers (including an effective internal separation between the functions of the competent authority and the functions of adjudication officers) and any such regulation shall include provision (where appropriate)—

(i) that adjudication officers and employees of the competent authority tasked with assisting adjudication officers shall not communicate with authorised officers, employees and members of the competent authority in respect of any proceeding relating to relevant competition law before the competent authority arising under this Act save on notice to the undertakings concerned in those proceedings the subject of a referral under section 15M, or as otherwise permitted by regulations, which may include communications relating to investigations in which the adjudication officers, and employees of the competent authority tasked with assisting the adjudication officers, have not been nor will be involved in any decision under section 15X or in any related referral under section 15M,

(ii) that documentation and other information concerning an investigation conducted under Part 2C which have been obtained by the competent authority in the exercise of its functions under this Act and the Act of 2014, shall not be disclosed to adjudication officers that have been directed to make a decision under section 15X in relation to that same investigation or to employees of the competent authority or other persons (including any consultant or adviser) tasked with assisting such adjudication officers save in accordance with this Act and upon notice to the undertakings concerned in any referral under section 15M,

(iii) for arrangements for oversight by specified members or employees of the competent authority for compliance by the competent authority with section 15P and the regulations made thereunder,

(iv) for reporting to the relevant Minister or the competent authority by specified members or employees of the competent authority or by adjudication officers of any breach of section 15P and the regulations made thereunder, and mechanisms for remedying any such breach,

(v) for specification of the functions of the competent authority which an adjudication officer can perform,

(vi) for the structure of the competent authority,

(vii) for the policies, practices and functions of the competent authority, and

(viii) for arrangements for working conditions within the competent authority,

(d) require the competent authority to publish policies and implement measures sufficient to identify and manage conflicts of interest on the part of—

(i) adjudication officers, and

(ii) any employee of the competent authority or other person (including any consultant or adviser) tasked with assisting an adjudication officer in the performance of his or her functions under this Act,

and

(e) require the Chief Adjudication Officer and the competent authority to report annually to the relevant Minister on the compliance by the competent authority and the adjudication officers with the principle of independence under section 15P and any regulations made hereunder and the policies the adjudication officers or the competent authority have adopted in order to do so.]

15R.—(1) (a) The competent authority may from time to time—

(i) require any employee of the competent authority, or

(ii) appoint such persons (including any consultant or adviser) as it considers necessary,

to assist adjudication officers, or an individual adjudication officer (including the Chief Adjudication Officer), in the performance of their, or his or her, functions under this Act.

(b) Persons assisting an adjudication officer under paragraph (a) shall not provide such assistance in connection with any matter in which they have or may have a conflict of interest.

(c) The Chief Adjudication Officer may at any time direct that an employee required to assist the adjudication officers, or an individual adjudication officer, under subsection (1)(a)(i) in the performance of their powers and functions under this Act, be reassigned by the competent authority.

(2) Persons required to, or appointed to as the case may be, assist adjudication officers under subsection (1) may perform other tasks on behalf of the competent authority, including performing tasks in any investigation in which they have not been, and will not be, involved in assisting an adjudication officer under this section, but they shall be solely responsible to the Chief Adjudication Officer, or to the adjudication officer or adjudication officers to which they have been individually assigned, in relation to their performance of the tasks referred to in subsection (1).

(3) (a) Employees of the competent authority who have been required to assist adjudication officers under subsection (1)(a), and persons appointed by the competent authority to assist adjudication officers under subsection (1)(a), shall not be subject to the direction of any member or employee of the competent authority in relation to the performance of the functions referred to in that subsection.

(b) Nothing in paragraph (a) shall preclude an employee of the competent authority or other person appointed by the competent authority being subject to the direction of a member or employee of the competent authority in relation to the performance of tasks not referred to in subsection (1)(a).

(4) Without prejudice to the responsibility of the competent authority for employment and for entering into contracts and determining all matters relevant thereto, where an adjudication officer has made a determination that specific assistance is required in a particular matter referred to an adjudication officer for a decision under section 15M, the adjudication officer shall be consulted on decisions concerning the appointment and assignment of persons to provide assistance to adjudication officers under subsection (1).

(5) (a) The relevant Minister may prescribe detailed requirements governing the appointment and assignment of persons to assist adjudication officers under subsection (1).

(b) The relevant Minister may, where it is necessary to enable the proper functioning of the competent authority, make regulations prescribing such limited exceptional circumstances in which persons referred to in subsection (3)(a) may be subject to a direction referred to in that subsection.]

15S.—(1) Nothing in this Part shall preclude the competent authority from relying on any aspect of a contract of service or for services in relation to the performance or non-performance of functions other than—

(a) the functions of an adjudication officer under this Act, and

(b) the functions of a person appointed to assist an adjudication officer under section 15R(1)(a) when assisting an adjudication officer.

(2) (a) The appointment of a person as an adjudication officer shall not in itself—

(i) constitute employment by or within the competent authority,

(ii) constitute the holding of a position in the civil service, or

(iii) otherwise create a contract between an adjudication officer on the one part and the Minister or the competent authority on the other part.

(b) Save in relation to the application of independence requirements to an adjudication officer, nothing in this Part shall alter the terms and conditions of employment of an adjudication officer who is an employee of the competent authority on the date on which section 13 of the Competition (Amendment) Act 2022 comes into operation.

(3) Save for limited exceptions consistent with the independence of adjudication officers in the exercise of their functions which the relevant Minister may prescribe, nothing in this Part shall prevent the application by the competent authority of disciplinary procedures under a contract of employment save in respect of—

(a) the tasks of an adjudication officer under this Act, and

(b) the tasks of a person appointed to assist an adjudication officer under section 15R(1)(a) when assisting an adjudication officer.

(4) The relevant Minister may make regulations to give further effect to this section.]

15T.—(1) At the discretion of the Chief Adjudication Officer, adjudication officers may (in a particular proceeding or otherwise) sit as a division, and in such circumstances references to an adjudication officer in this Act shall be considered to be references to a division of adjudication officers.

(2) (a) A division of the adjudication officers referred to in subsection (1) shall consist of such uneven number of adjudication officers as the Chief Adjudication Officer may determine either for any particular proceeding or group of proceedings or for any type of proceedings as the Chief Adjudication Officer shall consider appropriate.

(b) When establishing a division, the Chief Adjudication Officer shall have regard to the complexity of the anticipated proceedings, the potential for a balance of skills amongst the adjudication officers in such proceedings, and the need for consistent decision-making.]

15U.—(1) As soon as practicable after a referral has been made under section 15M, the adjudication officer shall, subject to subsection (3), give the undertaking or association of undertakings—

(a) a copy of this section,

(b) in respect of a referral under section 15M(2), a written notice stating that the undertaking or association of undertakings may make submissions in writing to the adjudication officer on the full investigation report prepared under section 15L within the period of 30 working days from the date the undertaking or association of undertakings receives the notice, or such further period, not exceeding 15 working days, as the adjudication officer may allow, and

(c) in respect of a referral under section 15M(1), a notice stating that the matter has been referred for an order on consent under section 15X(8) and asking the undertaking or association of undertakings to confirm the matters set out in paragraphs (a) and (b) of section 15X(8) within the period of 15 working days from the day the undertaking or association of undertakings receives the notice, or such further period, not exceeding 7 working days, as the adjudication officer may allow.

(2) The adjudication officer may do any of the following that he or she considers necessary to resolve an issue of fact or otherwise enable the adjudication officer to make a decision under section 15X:

(a) exercise any of the powers under section 15W;

(b) request further information from the undertaking or association of undertakings;

(c) request further information from any other person, and may, for the purposes of doing so, provide, with due regard for the protection of commercially sensitive information, a copy of the full investigation report prepared under section 15L to the person;

(d) conduct an oral hearing.

(3) Where an oral hearing takes place at which an undertaking or association of undertakings may make submissions to the adjudication officer on the full investigation report prepared under section 15L(9), the adjudication officer shall not be required to give to the undertaking, or association of undertakings, the material referred to in subsection (1).

(4) As soon as practicable after making a request under subsection (2)(c), the adjudication officer shall give to the competent authority, and shall, with due regard for the protection of commercially sensitive information, give to the undertaking or association of undertakings a copy of the request.

(5) As soon as practicable after receiving any information pursuant to a request under subsection (2)(c), the adjudication officer shall, with due regard for the protection of commercially sensitive information, give the competent authority and the undertaking or association of undertakings—

(a) a copy of the information or, where the protection of commercially sensitive information means that such information cannot be provided in full, a summary of such information, and

(b) written notice stating that the competent authority and the undertaking or association of undertakings may make submissions in writing to the adjudication officer on the information within the period of 20 working days from the day the undertaking or association of undertakings receives the notice, or such further period, not exceeding 10 working days, as the adjudication officer may allow.

(6) A person who receives a copy of a report under subsection (2)(c) shall not, without the prior authorisation of the adjudication officer, disclose the existence or the content of the report to any other person.

(7) A person who contravenes subsection (6) shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(8) An adjudication officer may direct an employee of the competent authority required to assist with his or her functions to make any communication on his or her behalf.]

15V.—(1) This section applies to an oral hearing before an adjudication officer under section 15U.

(2) An adjudication officer may, by notice in writing—

(a) summon a witness (including an authorised officer) to appear to give evidence, or to produce before the adjudication officer any books, documents or records in such person’s power or control, or to do both, and

(b) require the witness to attend an oral hearing from day to day unless excused, or released from further attendance, by the adjudication officer.

(3) An adjudication officer may require evidence to be given on oath, and may for that purpose—

(a) require a witness to take an oath, and

(b) administer an oath to the witness orally or permit the witness to affirm.

(4) The oath to be taken by a witness for the purposes of this section is an oath that the evidence the witness will give shall be true.

(5) The adjudication officer may allow a witness at the oral hearing to give evidence by tendering a written statement, provided such statement is verified on oath.

(6) Without prejudice to subsections (1) to (5), the adjudication officer has the same powers, rights and privileges as a judge of the High Court when hearing civil proceedings on the occasion of that action including with respect to:

(a) the attendance and examination of witnesses on oath or otherwise (including witnesses who are outside the State);

(b) compelling the production (including discovery) of records or an identified category or categories of records.

(7) An oral hearing under this section may, at the discretion of the adjudication officer, be held remotely (including in an online format), and evidence may be tendered as permitted by regulations or by an adjudication officer.

(8) At the oral hearing before the adjudication officer—

(a) an authorised officer or other representative of the competent authority or any other person, with leave of the adjudication officer, shall present the evidence in support of the referral, and

(b) the testimony of witnesses attending the oral hearing shall be given in accordance with this section and any regulations made thereunder.

(9) (a) A person to whom notice is given under subsection (2) may be examined and cross-examined at the oral hearing.

(b) At any oral hearing before an adjudication officer, there shall be a right to cross-examine witnesses and call evidence in defence and reply.

(10) (a) An oral hearing before an adjudication officer shall be held in public unless the adjudication officer is satisfied that, given the existence of special circumstances (which shall include whether information given or likely to be given in evidence is commercially sensitive information), the hearing or part of the hearing should be held otherwise than in public.

(b) If special circumstances exist (which shall include whether information given or likely to be given in evidence is commercially sensitive information), an adjudication officer may impose restrictions on the reporting or distribution of information given at the hearing.

(11) The payment or reimbursement of, or of any part of, the reasonable travelling and subsistence expenses of a witness required to attend an oral hearing, is at the discretion of the adjudication officer and such expenses shall be discharged by the competent authority.

(12) The rules of evidence shall apply to an oral hearing before an adjudication officer save as may be otherwise prescribed.

(13) Nothing in this section or section 15W compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession, power or control.

(14) (a) The relevant Minister may make regulations setting out further details or conditions for the receipt of evidence or the conduct of oral hearings under this section.

(b) Subject to any regulations under paragraph (a), the competent authority shall make rules providing for the conduct of an oral hearing under this section and shall publish such rules on a website maintained by it or on its behalf.

(c) Rules made under paragraph (b) shall not have effect until they are published.]

15W.—(1) At any time after a referral under section 15M(2), an adjudication officer may, whether on application by the competent authority, by an undertaking or association of undertakings concerned in the matter which is the subject of the referral or of the adjudication officer’s own motion, and where the adjudication officer is satisfied that such direction is necessary to the determination of the issues before the adjudication officer—

(a) direct authorised officers of the competent authority, or the undertaking or association of undertakings concerned, (each of which, in this section, is referred to as a ‘party’), to answer (whether on oath or otherwise) an identified question in whatever manner or form the adjudication officer may specify,

(b) direct a party to adduce evidence or produce books, documents and records in its power or control, and

(c) direct a party to clarify any issue of fact that an adjudication officer may deem necessary.

(2) An answer to a question put to a person in response to a requirement under subsection (1)(a) is not admissible as evidence against the person in criminal proceedings, other than proceedings for perjury in circumstances where the contested response or information was provided on oath.

(3) A summons issued by the adjudication officer for the purpose of an oral hearing under section 15V may be substituted for and is the equivalent of any formal process capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of records.

(4) A person the subject of a direction under this section shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in this section as a witness appearing in proceedings before the Court.

(5) A person is guilty of an offence if the person—

(a) to whom notice is given under section 15V does not comply with a requirement referred to in that section,

(b) subject to a direction under subsection (1), fails to comply with a requirement of that subsection,

(c) having been duly summoned to attend before an adjudication officer under section 15V(2)(a) fails without reasonable excuse to attend at the time and place indicated on the summons,

(d) while attending as a witness before an adjudication officer at an oral hearing under section 15V refuses to—

(i) give evidence in the manner lawfully required by the adjudication officer to be taken,

(ii) produce any record in the person’s power or control that the person is lawfully required by the adjudication officer to produce, or

(iii) answer any question that the person is lawfully required by the adjudication officer to answer,

or

(e) while attending before the adjudication officer engages in any conduct that, if the adjudication officer were a court of law having power to punish for contempt, would be contempt of court.

(6) The Court may, where a person fails to comply with a requirement under section 15V(2), with a direction under subsection (1), with a summons to attend before an adjudication officer, or refuses, while attending as a witness before the adjudication officer, to do anything referred to in subsection (5) that the person is lawfully required by an adjudication officer to do, or otherwise fails to comply with a direction or order of the adjudication officer, on summary application by a party on notice to that person—

(a) by order require the person to attend before the adjudication officer or to do the thing that the person refused to do, as the case may be, within a period to be specified by the Court, and

(b) make such interim or interlocutory orders as it considers necessary for that purpose.

(7) A person is guilty of an offence if, having been or in anticipation of being required to produce a book, document or record under subsection (1)(b) or under section 15V(2)(a), he or she intentionally or recklessly destroys or otherwise disposes of, falsifies or conceals such book, document or record or causes or permits its destruction, disposal, falsification or concealment.

(8) If information or evidence is provided by a person to an adjudication officer in connection with any function of an adjudication officer under this Part, that person is guilty of an offence if—

(a) the information or evidence is false or misleading in a material respect, and

(b) the person knows, or ought reasonably to know, that it is false or misleading in a material respect.

(9) A person who provides any information to another person, knowing the information to be false or misleading in a material respect, or who recklessly provides any information to another person which is false or misleading in a material respect, knowing the information is to be used for the purpose of providing information to an adjudication officer in connection with any of his or her functions under this Act, is guilty of an offence.

(10) A person guilty of an offence under subsection (5), (7), (8) or (9) 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 imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000 or both.

(11) Proceedings may be brought for an offence under this section regardless of whether or not an order has been made, or has been applied for, under subsection (6).

(12) (a) An adjudication officer may refer to the Director of Public Prosecutions a suspected breach of a hearing requirement under this section or section 15V without the necessity for an investigation by the competent authority.

(b) Subject to section 15X, an adjudication officer may impose a periodic penalty payment under section 15AD(1)(b) in respect of a breach of a hearing requirement without the necessity for an investigation by the competent authority and without a referral under section 15M separate to the proceedings in which the breach has arisen.

(13) The relevant Minister may make regulations setting out further details or conditions for the exercise of the powers of adjudication officers and the competent authority under this section.

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

15X.—(1) An adjudication officer shall consider the following when making a decision referred to him or her under section 15M(2) in relation to any alleged infringement of relevant competition law, breach of a procedural requirement, failure to comply with a structural or behavioural remedy, failure to comply with commitments entered into under section 15AE or failure to comply with a prohibition notice:

(a) the statement of objections (and any supplementary statement of objections) prepared by the competent authority;

(b) the full investigation report prepared by the competent authority under section 15L(9);

(c) any written submissions made by the undertaking or association of undertakings concerned on the content of the statement of objections and the full investigation report;

(d) any submissions, statements, admissions, information, records or other evidence provided to the adjudication officer in the course of the proceedings;

(e) any prior relevant decision of an adjudication officer under this Act, other than insofar as such decision has not been confirmed by the High Court under section 15AY or 15AZ.

(2) In any matter referred to an adjudication officer for decision under section 15M(2), an adjudication officer—

(a) may make a decision as to whether, on the balance of probabilities—

(i) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently committed an infringement of relevant competition law, and whether that infringement is continuing,

(ii) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently breached a procedural requirement or a hearing requirement, and whether that breach is continuing,

(iii) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with commitments entered into under section 15AE, and whether that failure is ongoing,

(iv) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with a structural or behavioural remedy imposed under this section in accordance with section 15Z, and whether that failure is ongoing, or

(v) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with a prohibition notice issued under section 15H, and whether that failure is ongoing,

and

(b) may, having made a decision under paragraph (a), do one or more of the following:

(i) impose structural or behavioural remedies on the undertaking or association of undertakings concerned in accordance with section 15Z;

(ii) impose an administrative financial sanction on the undertaking or association of undertakings concerned in accordance with section 15AA;

(iii) impose periodic penalty payments on the undertaking or association of undertakings concerned in accordance with section 15AD.

(3) (a) For the avoidance of doubt, a decision under subsection (2) may be formed in relation to conduct that is no longer ongoing.

(b) (i) After reaching a decision under subsection (2)(a) and prior to making a decision under paragraph (b) of that subsection, the adjudication officer shall provide the competent authority and the undertaking or association of undertakings with a copy of the decision under subsection (2)(a) and shall inform the competent authority and the undertaking or association of undertakings of—

(I) if any, the structural or behavioural remedies that the adjudication officer proposes to impose on the undertaking or association of undertakings, and

(II) the amount of any periodic penalty payment or administrative financial sanction that the adjudication officer proposes to impose, and the criteria that the adjudication officer considers applicable to the determination of such amount.

(ii) The adjudication officer may invite written submissions from the competent authority and the undertaking or association of undertakings in accordance with subparagraph (iii).

(iii) The competent authority and the undertaking or association of undertakings may, within a period of 15 working days from the date of being informed of the matter described in subparagraph (i), or such further period as is considered appropriate by the adjudication officer, make submissions in writing to the adjudication officer in relation to the application of the criteria in section 15Z, 15AA, 15AB or 15AD and may make submissions in regard to guidelines made by the competent authority under section 15AF.

(iv) The adjudication officer may by notice in writing request the undertaking or association of undertakings to provide, in writing, within a period specified in the notice, such information as the adjudication officer considers appropriate for the purpose of determining the sanction to be imposed.

(v) Nothing in this paragraph shall preclude the adjudication officer from imposing a structural or behavioural remedy or administrative financial sanction or periodic penalty payments different to that proposed, or outside the range of that proposed, under subparagraph (i).

(vi) Where an adjudication officer imposes a periodic penalty payment on an undertaking or association of undertakings under this section, the amount of the periodic penalty payment shall be calculated in accordance with section 15AD and shall be reckoned from the date of the decision under subsection (2)(a).

(vii) Without prejudice to the reckoning of time under subparagraph (vi) of this subsection, a decision under subsection (2) shall not have effect, be questioned under section 15AY or be the subject of a notice under section 15Y until a decision under both subsection (2)(a) and, where applicable, subsection (2)(b) has been made.

(4) In determining the amount of any administrative financial sanction to be imposed, the adjudication officer shall have regard to—

(a) the matters outlined in sections 15AB and 15AC, and

(b) the imposition of any structural or behavioural remedies in accordance with section 15Z.

(5) A decision under subsection (2) shall include details in relation to—

(a) the decision made,

(b) the date of the decision,

(c) the reasons for the decision,

(d) the statement of objections, information, records, documents, statements, admissions, evidence and written and oral submissions considered,

(e) the right of appeal provided for under section 15AY where a final decision under subsection (2) has been made,

(f) the time limits within which the undertaking or association of undertakings is required, in default of any relevant appeal, to pay the administrative financial sanction or periodic penalty payment, or give effect to the structural or behavioural remedy imposed, as the case may be,

(g) the name of the undertaking or association of undertakings concerned, and

(h) such other particulars or material as the adjudication officer considers appropriate.

(6) The relevant Minister may make regulations setting out detailed requirements to implement this section and otherwise for the conduct of proceedings before an adjudication officer in any matter referred to an adjudication officer for decision (in this section referred to as "proceedings"), having regard to the need for efficiency and the rights of the defence, including but not limited to all or any of the following:

(a) the form and manner of provision of a statement of objections or supplementary statement of objections prepared by the competent authority in accordance with section 15L;

(b) the form and manner of provision of information, records, documents, statements, admissions and evidence to be provided to the competent authority or to the adjudication officer;

(c) time limits to apply to the making and conduct of proceedings;

(d) the attendance of witnesses at an oral hearing;

(e) the form and manner of making of requests by an adjudication officer for information, discovery or disclosure from a party to a proceeding, or a person other than a party;

(f) the provision by the competent authority or by an adjudication officer to a party to a proceeding, or a person other than a party to proceedings, of information received by the adjudication officer or the competent authority;

(g) procedures for the consolidation and hearing of two or more proceedings together;

(h) procedures for the separation of proceedings;

(i) the publication on a website maintained by or on behalf of the competent authority of information and documents provided, for the purposes of proceedings, by a party to a proceeding or by a person other than a party to proceedings;

(j) the form and manner in which a proceeding may be withdrawn;

(k) any consequential, supplementary or transitional provisions as appear to the Minister to be necessary or expedient for the purpose of giving effect to the regulations.

(7) In accordance with section 15AF, a competent authority shall, on a website maintained by or on behalf of the competent authority, publish guidelines on the conduct of proceedings and may publish guidelines on any of the matters the subject of subsection (6).

(8) At any time after a referral under section 15M, and with the consent of the competent authority, an adjudication officer may impose on the undertaking or association of undertakings the subject of the referral an administrative financial sanction, a structural or behavioural remedy or both such sanction and such remedy, if—

(a) the undertaking or association of undertakings the subject of a referral under section 15M(1) acknowledges that it is committing or has committed an infringement of relevant competition law, and

(b) such undertaking or association of undertakings consents to the imposition of a specific administrative financial sanction, the specific structural or behavioural remedy, or both, as the case may be.

(9) No order as to costs shall be made in proceedings before an adjudication officer, save that an adjudication officer may in his or her discretion award the costs of proceedings before an adjudication officer—

(a) against the undertaking or association of undertakings, in the event that it is found to have infringed relevant competition law and if the adjudication officer finds that the undertaking or association of undertakings has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged infringement or in the conduct of its defence before an adjudication officer, or

(b) against the competent authority in the event that no infringement is found and if the adjudication officer finds that the competent authority has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged infringement or in its conduct of the proceedings before the adjudication officer.]

15Y.—(1) As soon as practicable after the adjudication officer has made a decision under section 15X (including, in respect of a decision under section 15X(2), both the decision under section 15X(2)(a) and, where applicable, the decision under section 15X(2)(b)), the adjudication officer shall furnish the competent authority with the decision.

(2) (a) The competent authority shall, within 7 working days of receipt of the decision referred to in subsection (1), give notice in writing of the decision to the undertaking or association of undertakings concerned.

(b) The notice under paragraph (a) shall—

(i) include a copy of the decision referred to in subsection (1),

(ii) state that, in respect of an administrative financial sanction, an Article 16(2) periodic penalty payment, a hearing requirement periodic penalty payment or a structural or behavioural remedy, the decision does not take effect unless it is confirmed by the court in accordance with section 15AY or 15AZ, as the case may be, and

(iii) state that, in respect of an administrative financial sanction, an Article 16(2) periodic penalty payment or a behavioural or structural remedy, if the undertaking or association of undertakings does not appeal under section 15AY, the competent authority must, as soon as is practicable after the expiration of the period for the making of an appeal, make an application for confirmation of the decision in accordance with section 15AZ.

(c) The competent authority may provide a copy of a notice referred to in subsection (1) to a person other than the undertaking or association of undertakings where it considers it appropriate to do so.

(3) A copy of the decision or order referred to in subsection (1) shall be published on a website maintained by or on behalf of the competent authority.

(4) A decision or order referred to in subsection (1) or published under subsection (3) may contain such redactions as the adjudication officer considers necessary and appropriate, in respect of subsection (1) on his or her own motion, or in respect of subsections (2) and (3) upon application of the competent authority or any undertaking or association of undertakings concerned—

(a) to protect commercially sensitive information,

(b) to protect the rights of the undertaking or association of undertakings concerned or any other person, or

(c) for any other good and sufficient reason.

(5) (a) A person who receives a copy of a notice under subsection (2) prior to the publication of the decision under subsection (3) shall not, without the prior authorisation of the adjudication officer, disclose the existence or the content of the notice to any other person.

(b) A person who receives a copy of a notice under subsection (2) which contains material redacted from publication under subsection (3) shall not, without the prior authorisation of the adjudication officer, disclose the content of the redacted material to any other person.

(6) A person who fails to comply with a request to provide information under section 15X(3)(b)(iv), or a person who contravenes subsection (5), shall be guilty of an offence and shall be 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 imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000, or both.

(7) Summary proceedings in relation to an offence under subsection (6) may be brought by the competent authority.]

15Z.—(1) Where an adjudication officer makes a decision under section 15X to impose a structural or behavioural remedy on an undertaking or association of undertakings, such remedy shall be imposed in accordance with this section.

(2) In this Act, "structural or behavioural remedy" means any remedy or obligation requiring an undertaking or association of undertakings to take, or to refrain from taking, any action relating to the behaviour or structure of an undertaking or association of undertakings and includes requiring the undertaking or association of undertakings in question to do one or more of the following:

(a) to sell or divest itself of any matter, including business, assets, shares, real property or intellectual property;

(b) to modify or constrain its conduct in specified ways;

(c) to grant specified undertakings access to assets, facilities, technology, infrastructure, information or services;

(d) to implement ring-fencing arrangements to prevent the sharing of specified competitively sensitive information;

(e) to cease a specified conduct or practice;

(f) to unbundle two or more products which were previously offered to customers jointly;

(g) to discontinue customer rebate schemes, or a part of any such schemes;

(h) to prevent the flow of competitively sensitive information between undertakings or within divisions, units, departments or other organisational units within an undertaking.

(3) The adjudication officer shall not impose a structural or behavioural remedy on an undertaking or association of undertakings under this section unless—

(a) imposing the remedy is necessary to bring an existing infringement of relevant competition law to an end or to prevent a similar infringement of relevant competition law from reoccurring in future, and

(b) the remedy imposed is proportionate to the infringement of relevant competition law committed.

(4) Where more than one structural or behavioural remedy would be equally effective for the purpose of bringing the infringement of relevant competition law in question to an end, the adjudication officer shall choose the remedy that is least burdensome for the undertaking or association of undertakings in question.

(5) A decision to impose a structural or behavioural remedy shall not take effect unless the decision is confirmed by the High Court under section 15AY or 15AZ.]

15AA.—(1) An adjudication officer may, in accordance with section 15X, impose administrative financial sanctions on undertakings and associations of undertakings, which sanctions shall be effective, proportionate and dissuasive, where the adjudication officer determines—

(a) under section 15X(2)(a)(i) that the undertaking or association of undertakings committed an infringement of relevant competition law, including where the adjudication officer determined that the infringement is ongoing,

(b) under section 15X(2)(a)(ii) that the undertaking or association of undertakings breached a procedural requirement, including where the adjudication officer determined that the breach is ongoing,

(c) under section 15X(2)(a)(iii) that the undertaking or association of undertakings failed to comply with commitments entered into under section 15AE, including where the adjudication officer determined that the failure to comply is ongoing,

(d) under section 15X(2)(a)(iv) that the undertaking or association of undertakings failed to comply with a structural or behavioural remedy ordered under section 15X in accordance with section 15Z, including where the adjudication officer determined that the failure to comply is ongoing, or

(e) under section 15X(2)(a)(v) that the undertaking or association of undertakings failed to comply with a prohibition notice issued under section 15H, including where the adjudication officer determined that the infringement is ongoing.

(2) Where an adjudication officer makes a decision under section 15X and the provision of relevant competition law, or the alleged breach of a procedural requirement, in respect of which the decision was made is a provision the breach of which would constitute an offence, the undertaking or association of undertakings in respect of which the decision was made is not liable to be prosecuted or punished for the offence in respect of the conduct to which the decision relates.

(3) An adjudication officer may not impose an administrative financial sanction on an undertaking or association of undertakings for an infringement of relevant competition law or a breach of a procedural requirement—

(a) if the undertaking or association of undertakings has been charged with having committed an offence under a law of the State,

(b) if—

(i) criminal proceedings are ongoing in respect of the infringement,

(ii) that undertaking or association of undertakings has been found guilty of having committed the offence, or

(iii) that undertaking or association of undertakings has been found not guilty of having committed the offence where proceedings have determined other than by way of nolle prosequi,

and

(c) if the offence involves the same infringement or a breach of a procedural requirement as is before the adjudication officer.

(4) A decision to impose an administrative financial sanction shall not take effect unless the decision is confirmed by the High Court under section 15AY or 15AZ, as the case may be.

(5) The adjudication officer may, having imposed an administrative financial sanction under this section on an undertaking (in this subsection referred to as the "sanctioned undertaking"), and where he or she considers that it is necessary to do so in order for that sanction to be effective, proportionate or dissuasive, impose the sanction (either jointly with or separately to the sanctioned undertaking) on one or more of the following:

(a) a person or undertaking that exercises direct or indirect control over the sanctioned undertaking;

(b) an undertaking of which the sanctioned undertaking is a subsidiary or parent undertaking;

(c) an undertaking the directors, shareholders or partners of which, or any other persons exercising control over which, knew or ought reasonably to have known about the matter in respect of which the administrative financial sanction was imposed on the sanctioned undertaking;

(d) a person, company, undertaking or any other entity forming part of the same economic unit as the sanctioned undertaking.]

15AB.—(1) When determining the amount of the administrative financial sanction to be imposed in respect of the matters set out in section 15AA(1), an adjudication officer shall have regard to—

(a) the need to ensure that any administrative financial sanction imposed is effective, proportionate and dissuasive,

(b) the gravity of the matter in respect of which an administrative financial sanction is imposed,

(c) in respect of an infringement of relevant competition law—

(i) the duration of the infringement,

(ii) the value of the undertaking’s sales of the goods and services to which the infringement directly or indirectly relates, and

(iii) where applicable, the amount of any compensation paid as a result of a consensual settlement in accordance with Article 18(3) of Directive 2014/104/EU⁴,

(d) any specific factors, criteria or methodology relevant to paragraphs (a), (b) and (c) which are prescribed by the relevant Minister to be taken into account by an adjudication officer in the calculation of the amount of administrative financial sanctions, and

(e) any guidelines issued by the competent authority under section 15AF in respect of specific factors, criteria or methodology relevant to the calculation of the amount of administrative financial sanctions.

(2) Where an administrative financial sanction is imposed on an association of undertakings under section 15AA in respect of an infringement of relevant competition law under Parts 2C to 2G, and such sanction is imposed not only on the association of undertakings but also on its members, the turnover of the members on which an administrative financial sanction is imposed shall not be taken into account when calculating the administrative financial sanction to be imposed on the association.

(3) (a) Where—

(i) an administrative financial sanction is imposed on an association of undertakings under section 15AA in respect of an infringement of relevant competition law under Parts 2C to 2G, and the infringement relates to the activities of its members, and

(ii) an administrative financial sanction is not also imposed on the individual members of the association,

an adjudication officer may consider the value of the sales of goods and services to which the infringement directly or indirectly relates by the undertakings that are members of the association when calculating the administrative financial sanction to be imposed on the association of undertakings.

(b) If paragraph (a) is applied, in circumstances where the association of undertakings is not solvent, the association shall call for contributions from its members to cover the amount of the administrative financial sanction imposed.

(4) Where, following a decision confirming an administrative financial sanction under section 15AY or 15AZ, as the case may be, contributions referred to in subsection (3) have not been made in full to the association of undertakings within the time limit fixed by the High Court, the competent authority may refer the matter back to an adjudication officer who may require any of the undertakings whose agents or representatives were members of the decision-making bodies of that association to pay the administrative financial sanction.

(5) Where necessary to ensure full payment of the administrative financial sanction referred to in subsection (4), after the adjudication officer has required payment from such undertakings, the adjudication officer may also require the payment (on a joint and several basis) of the outstanding amount of the administrative financial sanction by any of the members of the association that were active on the market on which the infringement of relevant competition law occurred notwithstanding any decision made by the adjudication officer under section 15X(2) that such members of the association had not intentionally, recklessly or negligently committed the relevant infringement.

(6) The provisions of sections 15AY or 15AZ shall apply, mutatis mutandis, to a decision or requirement of an adjudication officer under subsections (4) or (5).

(7) Payment under subsection (5) shall not be required from an undertaking that proves, in accordance with such procedures as may be prescribed, on the balance of probabilities that—

(a) it did not implement the infringement of relevant competition law of the association of undertakings, and

(b) it—

(i) was not aware of the existence of the infringement, or

(ii) actively distanced itself from the infringement before the investigation under Part 2C commenced.

(8) (a) After determining the amount of the administrative financial sanction to be imposed on an undertaking or association of undertakings, and prior to making a decision under section 15X(2)(b)(iii), the adjudication officer shall apply any decision made by the competent authority under Part 2E in respect of such undertaking or association of undertakings regarding—

(i) immunity from administrative financial sanctions, or

(ii) a reduction in the amount of administrative financial sanctions.

(b) An adjudication officer shall not vary any decision of the competent authority made under Part 2E regarding the level of reduction to be applied to the administrative financial sanctions that would otherwise have been imposed on the undertaking or association of undertakings concerned.

(9) The relevant Minister may prescribe rules for the purposes of the implementation of this section.]

15AC.—(1) The maximum amount of an administrative financial sanction that an adjudication officer may impose under this Part in respect of an infringement of relevant competition law, for failure to comply with commitments entered into under section 15AE, for failure to comply with a structural or behavioural remedy or for failure to comply with a prohibition notice issued under section 15H shall be the greater of €10 million or 10 per cent of the total worldwide turnover of the undertaking or association of undertakings in the financial year preceding the decision.

(2) Where an infringement of relevant competition law, failure to comply with commitments entered into under section 15AE, failure to comply with a structural or behavioural remedy or a failure to comply with a prohibition notice issued under section 15H by an association of undertakings relates to the activities of its members, the maximum amount of the administrative financial sanction shall be €10 million or 10 per cent of the sum of the total worldwide turnover (whichever is greater) of each member active on the market affected by the infringement of the association.

(3) The maximum amount of an administrative financial sanction that an adjudication officer may impose with respect to a breach of a procedural requirement in accordance with section 15AA shall be €1 million or 1 per cent of the total worldwide turnover (whichever is greater) of the undertaking or association of undertakings in the financial year preceding the decision.

(4) Where the breach of the procedural requirement by an association of undertakings relates to the activities of its members, the maximum amount of the administrative financial sanction shall be €1 million or 1 per cent of the sum of the total worldwide turnover (whichever is greater) of each member active on the market affected by the infringement of the association.

(5) The financial liability of each undertaking in respect of the payment of the administrative financial sanction shall not exceed the maximum amounts specified in subsection (2) or subsection (3), as the case may be, and shall be reduced by an adjudication officer in accordance with any decision made in respect of that undertaking under Part 2E.]

15AD.—(1) (a) An adjudication officer may impose a payment (in this Act referred to as a "periodic penalty payment") on an undertaking or association of undertakings in order to compel such an undertaking or association of undertakings to do one or more of the following:

(i) comply with a search conducted by an authorised officer, or otherwise allow for the exercise of the powers of an authorised officer, under section 39 of the Act of 2002 or section 37 of the Act of 2014, as the case may be;

(ii) provide complete and correct information in response to a requirement under section 39A of the Act of 2002 or section 18(1)(d) or 37A of the Act of 2014 or, as the case may be;

(iii) attend at an interview, or otherwise give evidence or produce information or documentation, before the competent authority under section 38A of the Act of 2002 or section 18 or 37A of the Act of 2014, as the case may be;

(iv) comply with a prohibition notice;

(v) comply with commitments entered into with the competent authority under section 15AE;

(vi) comply with structural or behavioural remedies.

(b) (i) An adjudication officer may impose a periodic penalty payment on an undertaking or association of undertakings in order to compel such an undertaking or association of undertakings to comply with any hearing requirement imposed by an adjudication officer in the course of a referral under section 15M, without a referral under that section separate to the proceedings in which the breach of the hearing requirement has arisen.

(ii) Where an adjudication officer imposes a hearing requirement periodic penalty payment under subparagraph (i), subject to this section such a decision shall be made under section 15X and this Act shall apply accordingly.

(iii) Where an adjudication officer considers it necessary in the interests of justice, an adjudication officer who apprehends that there has been a failure to comply with a hearing requirement made by that adjudication officer in the course of a referral under section 15M may refer to the Chief Adjudication Officer for assignment to another adjudication officer the decision under subparagraph (i).

(2) (a) Before an adjudication officer makes a decision to impose a periodic penalty payment in accordance with subsection (1)(a), the competent authority shall issue to the undertaking or association of undertakings concerned a notice which shall—

(i) specify the date by, or period within, which the undertaking or association of undertakings shall comply with the obligation concerned,

(ii) state the intention of the competent authority to refer the matter, under section 15M, to an adjudication officer for a decision to impose a periodic penalty payment from a specified date if by that date the undertaking or association of undertakings concerned has not complied with the obligation concerned, and

(iii) specify the maximum daily amount of the periodic penalty payment that may be imposed from the specified date if the undertaking or association of undertakings concerned has not complied with the obligation concerned.

(b) Before an adjudication officer makes a decision to impose a hearing requirement periodic penalty payment in accordance with subsection (1)(b), the adjudication officer shall issue to the undertaking or association of undertakings concerned a notice which shall—

(i) state the intention of the adjudication officer to impose a periodic penalty payment from a specified date if by that date the undertaking or association of undertakings concerned has not complied with the obligation concerned, and

(ii) specify the information referred to in subparagraphs (i) and (iii) of paragraph (a).

(c) If, before the date, or before the expiration of the period, as the case may be, specified in a notice issued under paragraph (a) or (b), as the case may be, the undertaking or association of undertakings requests, in writing, an extension to the specified date or period, the competent authority or adjudication officer, as the case may be, may where it considers it appropriate to do so, extend that date or period and an undertaking or association of undertakings to which such an extension is granted shall comply with the obligation by the date, or within the specified period, as so extended.

(3) The maximum amount of a periodic penalty payment imposed per day during which the failure is ongoing in accordance with subsection (1) shall not exceed 5 per cent of the average daily total worldwide turnover of the undertaking or association of undertakings concerned in the preceding financial year.

(4) Where the undertaking or association of undertakings has failed to comply with the obligation concerned before the date, or before the expiration of the period, specified in a notice issued under subsection (2)—

(a) in respect of the matters set out in subsection (1)(a), the competent authority—

(i) shall prepare a statement of objections and give a copy of it to the undertaking or association of undertakings concerned in accordance with section 15L, and

(ii) may refer the matter to an adjudication officer for decision in accordance with section 15M,

or

(b) in respect of the matters set out in subsection (1)(b), an adjudication officer may make a decision under section 15X on his or her own motion.

(5) (a) Where an adjudication officer has decided to impose a periodic penalty payment under section 15X on or before the date, or within the period, specified in a notice issued under paragraph (a) or (b) of subsection (2), an adjudication officer shall determine the periodic penalty payment to be imposed on the undertaking or association of undertakings concerned and shall impose such periodic penalty payment on such undertaking or association of undertakings under section 15X(2)(b)(iii).

(b) The definitive amount of the periodic penalty payment shall be calculated from the date on which the period specified in the notice issued under paragraph (a) or (b) of subsection (2) expired until the date on which the adjudication officer is satisfied that the relevant obligation was complied with by the undertaking.

(c) An adjudication officer may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the notice issued under subsection (2).

(6) The imposition of a periodic penalty payment under this section is without prejudice to—

(a) the imposition of administrative financial sanctions for—

(i) a breach of a procedural requirement,

(ii) a failure to comply with commitments entered into under section 15AE,

(iii) a failure to comply with a structural or behavioural remedy, or

(iv) a failure to comply with a prohibition notice,

(b) the imposition of a structural or behavioural remedy under section 15X in accordance with section 15Z, or

(c) issuing a prohibition notice issued under section 15H.

(7) A decision to impose an Article 16(2) periodic penalty payment or a hearing requirement periodic penalty payment shall not take effect unless the decision is confirmed by the High Court under section 15AY or section 15AZ.

(8) In this section—

"Article 16(1) periodic penalty payment" means a periodic penalty payment imposed, in whole or in part, for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to in subsection (1)(a)(ii) and (iii);

"Article 16(2) periodic penalty payment" means a periodic penalty payment imposed for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to in subsection (1)(a)(i) and (iv) to (vi);

"hearing requirement periodic penalty payment" means a periodic penalty payment imposed under subsection (1)(b)(i).]

15AE.—(1) At any time during an investigation carried out by the competent authority into suspected or alleged infringements of relevant competition law, including at any time prior to a decision being made in criminal or civil proceedings (including proceedings under Parts 2C to 2H) under this Act, the undertaking or association of undertakings to which the investigation relates may, in writing, propose to the competent authority measures appropriately addressing the suspected or alleged infringement.

(2) Where the competent authority receives a proposal under subsection (1), it may—

(a) consult to the extent that it sees fit in relation to the proposal, including consulting publicly or consulting undertakings, or other persons participating in the market or markets concerned,

(b) where it is of the opinion that it requires further information in order to consider the proposal, by notice in writing served on the undertaking or association of undertakings that made the proposal, require the undertaking or association of undertakings to give to it within a specified period specified information, and

(c) where it considers it necessary to do so, at any time before the proposal is made subject to a commitment agreement under this section, propose to the undertaking or association of undertakings modifications, alterations, additions or other changes to the proposal.

(3) Where the competent authority—

(a) has complied with the requirements of subsection (4), and

(b) is satisfied that the terms of the proposal (subject to any modifications, alterations, additions or other changes made to the proposal under subsection (2))—

(i) appropriately address the matters to which the investigation relates or any findings resulting from the investigation, and

(ii) are clear and unambiguous and capable of being complied with,

it may notify the undertaking or association of undertakings in writing that the proposal is agreed by the competent authority.

(4) Before notifying an undertaking or association of undertakings under subsection (3), the competent authority shall inform the undertaking or association of undertakings—

(a) that the undertaking or association of undertakings is entitled to obtain legal advice on the terms of the proposal, and

(b) that failure to comply with the commitments may result in legal consequences for the undertaking or association of undertakings, including the imposition of administrative financial sanctions under section 15AA.

(5) Where the undertaking or association of undertakings in receipt of a notification under subsection (3) consents to the terms of the proposal as agreed by the competent authority, it shall notify the competent authority of that fact.

(6) Where a proposal has been consented to by an undertaking or association of undertakings under subsection (5) and an agreement (in this section referred to as a "commitment agreement") in respect of such proposal has been entered into by that undertaking or association of undertakings and the competent authority, the commitment agreement shall (save where such publication would, in the opinion of the competent authority, prejudice the achievement of the objectives of this Act) be published on a website maintained by or on behalf of the relevant Minister or by the competent authority, with due regard for the protection of commercially sensitive information, as soon as practicable after the commitment agreement has been signed by the undertaking or association of undertakings and the competent authority.

(7) A commitment agreement shall be binding on an undertaking or association of undertakings entering into it for the period beginning on the date specified in the commitment agreement and ending on the date specified in the commitment agreement.

(8) Subject to subsection (9), the competent authority shall not, during the period for which a commitment agreement is binding on an undertaking or association of undertakings and in respect of the matters addressed in the commitment agreement—

(a) issue a prohibition notice to the undertaking or association of undertakings,

(b) refer the matter for decision by an adjudication officer under section 15M, or

(c) continue any proceedings under this Act (whether criminal or civil proceedings, including proceedings under Parts 2C to 2H) that are already in progress against the undertaking or association of undertakings,

other than where the competent authority has formed a preliminary view, or an adjudication officer has decided, that the undertaking or association of undertakings has failed to comply with the commitment agreement.

(9) The competent authority may, notwithstanding subsection (7)—

(a) amend or terminate a commitment agreement where the undertaking or association of undertakings that has entered into the commitment agreement has consented to such amendment or termination and the competent authority is satisfied that there has been a material change to the facts on which the commitment agreement was based,

(b) terminate a commitment agreement where the circumstances of the undertaking or association of undertakings, or of the market in which the undertaking or association of undertakings operates, mean that the commitment agreement is no longer necessary,

(c) terminate a commitment agreement where the undertaking or association of undertakings concerned has acted contrary to the terms of the commitment agreement, or

(d) terminate a commitment agreement where an undertaking or association of undertakings which has entered into a commitment agreement has submitted information to the competent authority in connection with a proposal or commitment agreement under this section that is false, incomplete, incorrect or misleading in a material respect.

(10) The competent authority may monitor and review commitments, conditions or other terms contained in a commitment agreement.]

15AF.—(1) The competent authority may, subject to this Act and any regulations made thereunder, and having regard to the fairness and efficiency of the procedures under this Part, Part 2C, Part 2E and Part 2G, prepare and make guidelines with respect to any matter provided for in or under this Part or Part 2C, 2E or 2G, including in relation to—

(a) the conduct of oral hearings,

(b) the imposition of administrative sanctions (including the factors applicable to any order or administrative financial sanction to be imposed under section 15X and the method of calculation of administrative financial sanctions and periodic penalty payments),

(c) the conduct of investigations,

(d) the general policies of the competent authority, and

(e) any matter prescribed by the relevant Minister under this Part, Part 2C, Part 2E or Part 2G.

(2) In making a decision under section 15X, an adjudication officer shall—

(a) have regard to guidelines, if any, made and published by the competent authority under subsection (1), and

(b) apply guidelines made and published by the competent authority under paragraph (a) and (b) of subsection (1) unless the adjudication officer considers that, having regard to all the circumstances of the case, there is a reason not to do so.

(3) The competent authority may amend or revoke guidelines made under subsection (1).

(4) The competent authority shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on a website maintained by it or on its behalf.

(5) The competent authorities may make guidelines under this section jointly or separately.]