C14

Prospective affecting provision: subs. (3) amended, subss. (3A), (3B) inserted, subss. (4), (5) amended, subss. (8)-(17) inserted by Competition (Amendment) Act 2022 (12/2022), s. 37(a)-(e), not commenced as of date of revision, subject to transitional provisions in s. 3.

(3) For the purposes of the exercise by the Commission of its functions under F113[this Act, the Competition Act 2002 (other than functions related to obtaining information which may be required in relation to a matter under investigation under relevant competition law), F114[the Consumer Protection Act 2007, the Competition and Consumer Protection Act 2014 and the Consumer Rights Act 2022,] a transferred function or any regulations made under the Act of 1972], an authorised officer may—

F111[(3A) For the purpose of—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) Where an authorised officer in exercise of his or her powers under F115[subsection (3)] is prevented from entering any premises or place, an application may be made under section 40 for a warrant to authorise such entry.

(5) F116[An authorised officer, other than where exercising functions in relation to a matter under investigation under relevant competition law, shall not] other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant under section 40 authorising such entry.

...

F112[(8) Where a member of the Garda Síochána arrests, whether in a Garda Síochána station or elsewhere, a person whom he or she, with reasonable cause, suspects of committing or of having committed an offence under section 6 or 7 of the Competition Act 2002 and the person has been taken to and detained in a Garda Síochána station, or if the person is arrested in a Garda Síochána station, has been detained in the station, pursuant to section 4 of the Criminal Justice Act 1984, an authorised officer or officers (but not more than 2 such officers) may, if and for so long as the officer or officers is, or are, accompanied by a member of the Garda Síochána, attend at, and participate in, the questioning of a person so detained in connection with the investigation of the offence, but only if the member of the Garda Síochána requests the authorised officer or officers to do so and the member is satisfied that the attendance at, and participation in, such questioning of the authorised officer or officers is necessary for the proper investigation of the offence concerned.

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

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

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

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

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

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

(b) a transcript of such a recording,

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

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

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

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

or both.

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

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

(17) In this section—

"recording" means a recording on tape of—

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

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

or both;

"Regulation of 2003" means Regulation (EC) No. 1/2003 of 16 December 2002⁹ on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

"relevant competition law" has the meaning it has in the Competition Act 2002.]

C15

Application of section restricted (9.06.2023) by European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444 of 2022), reg. 98(1), S.I. No. 300 of 2023.

Information request to undertakings

98. (1) Notwithstanding section 13D or 39 of the Act of 2002, the Regulator or another relevant competent authority may, in writing, require any undertaking providing electronic communications networks, electronic communications services, associated facilities or associated services, any person referred to in Regulation 79 or any public authority for the purposes of Regulation 100, to provide, within such timescales and in conformity with the level of detail specified by the Regulator or the other competent authority, any information, including financial information, that the Regulator or the other competent authority, or BEREC, considers necessary for the purposes of ensuring conformity with the provisions of, or decisions or opinions of the Regulator or the other competent authority adopted in accordance with the Directive, and Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018¹⁴. Any such requirement shall be proportionate to the performance of the task and shall be reasoned.

...

C16

Application of section extended (13.06.2014) by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 35, in effect as per reg. 1(2).

Authorised officers for purposes of Regulations

35. (1) A person appointed as an authorised officer under section 39 of the Act of 2002 or section 30 of the Act of 2007, whether holding office as an authorised officer under either of those sections immediately before the date of the coming into operation of these Regulations or appointed after that date, shall continue to be so appointed as if appointed under this Regulation and shall be an authorised officer for the purpose of these Regulations and the Directive and shall for those purposes have all of the powers given to an authorised officer by, and be subject to the terms of, those sections.

C17

Previous affecting provision: application of section restricted (1.07.2011) by European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. No. 333 of 2011), reg. 10(1).

Provision of information

10. (1) Notwithstanding section 39 of the Act of 2002, the Regulator may, in writing, require any undertaking to provide, within such timescales and in conformity with the level of detail specified by the Regulator, any information, including financial information, that the Regulator considers necessary for the purposes of ensuring conformity with the provisions of, or decisions or determinations of the Regulator made in accordance with, the Specific Regulations, the Framework Directive or the Specific Directives. In particular such information may include information concerning future network or service developments that could have an impact on the wholesale services that the undertaking makes available to competitors.