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).