116.— (1) RTÉ shall keep an account which shall be known as the independent programmes account (in this section referred to as the “account”).

(2) (a) Monies standing to the credit of the account shall be used by RTÉ for the purpose of—

(i) commissioning the making of independent television or sound broadcasting programmes,

(ii) procuring the formulation by persons of proposals for the commissioning by RTÉ of the making of the above programmes, and

(iii) assisting the completion of independent television or sound broadcasting programmes the making of which has not been commissioned by RTÉ,

and for no other purpose.

(b) The amount of monies that RTÉ is required by subsection (3) to pay into the account in a financial year shall be expended, unless it is impracticable to do so, within 2 years of that financial year.

(c) RTÉ shall not in a financial year use for the purposes specified in subparagraphs (ii) and (iii) of paragraph (a) more than 10 per cent of the amount of monies that it is required by subsection (3) to pay into the account in that financial year.

(3) RTÉ shall in each financial year mentioned in column (1) of Part 1 of the Table to this section pay into the account, in accordance with subsection (4), an amount of monies that is not less than the amount of monies mentioned in column (2) opposite the mention of the financial year concerned.

(4) The amount of monies required to be paid by subsection (3) into the account in a financial year shall be so paid in such number of instalments as RTÉ deems appropriate having regard to its duty under subsection (2) (b).

(5) If any of the monies paid under subsection (3) into the account in a financial year remains unexpended at the end of a two year period from the end of that financial year the Minister may, having consulted with the Authority and RTÉ, authorise RTÉ to withdraw those monies or a specified portion of them from the account. Monies so withdrawn shall thereupon become and be available to RTÉ for the purposes generally of pursuing its public service objects.

(6) References in this section to the expenditure of monies in the account include references to the incurring of a legal obligation to expend such monies.

(7) (a) The Minister may, having had regard to each of the following matters, namely—

(i) the current and prospective financial liabilities of RTÉ,

(ii) the effect (if any) for the time being of the operation of this section on—

(I) the employment or recruitment of staff by RTÉ,

(II) the performance by RTÉ of its public service objects, and

(III) the employment of persons in the making of independent television or sound broadcasting programmes,

from time to time by order vary the sum referred to in the definition of the “ appropriate amount” in subsection (8) (a) and for so long as the order is in force Part 1 of the Table and the definition are to be read as having effect in accordance with the order.

(b) Where it is proposed to make an order under this subsection, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(8) (a) In Part 1 of the Table to this section “appropriate amount” means the sum of €40,000,000 as increased by an amount equal to the appropriate percentage of that sum.

(b) In this subsection the “appropriate percentage” means the difference between the consumer price index number at mid-August, 2008, and the said number at the mid-August immediately preceding the financial year concerned expressed as a percentage of the first-mentioned number.

(c) If at the second-mentioned date in paragraph (b) the consumer price index number stands at a figure that is less than that at which it stood at the first-mentioned date in that paragraph, the definition of “the appropriate amount” in this subsection has effect as respects the financial year immediately following the second-mentioned date as if “reduced” were substituted for “increased” in that definition.

(9) As soon as may be, but not later than 3 months, after the end of each financial year, RTÉ shall make a report to the Minister of—

(a) its activities during that financial year as respects commissioning the making of independent television or sound broadcasting programmes,

(b) the name or corporate identity of persons commissioned to make independent television or sound broadcasting programmes,

(c) the operation by it of the account during that financial year, and

(d) such other matters relating to the matters referred to in paragraphs (a), (b) and (c) as the Minister may direct.

(10) The Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(11) For the purposes of this Part, the making of an independent programme shall not be regarded as having been commissioned by RTÉ unless, before work on the making of the programme commences, RTÉ has incurred a legal obligation to pay at least 25 per cent of the cost of its making.

(12) In this section “independent programme” means a television or sound broadcasting programme made by a person who complies with the following conditions, namely—

(a) each of the following matters as respects the said programme is determined by him or her or by one or more persons on his or her behalf and over whose activities in respect of the determination of such matters he or she exercises control, namely—

(i) the persons who are to participate in the said programme,

(ii) the persons who are to be involved in the making of the said programme, and

(iii) the equipment and facilities to be used in the making of the said programme,

(b) he or she is not a subsidiary of a broadcaster, and

(c) he or she is not a holding company of a broadcaster.

(13) For the purposes of the definition in subsection (12), where—

(a) two or more broadcasters hold shares in a body corporate or a holding company of a body corporate, or

(b) each of two or more broadcasters (being shareholders in a body corporate or a holding company of a body corporate) by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove a holder of a directorship of the body corporate or, as the case may be, the holding company,

then, notwithstanding that the body corporate is not a subsidiary of any of these broadcasters, the body corporate is deemed not to comply with the condition specified in paragraph (b) of that definition if—

(i) the total number of shares held by the said broadcasters in the body corporate or, as the case may be, the holding company, or

(ii) the total number of directorships of the body corporate or, as the case may be, the holding company that the aforesaid powers of the said broadcasters may be exercised in respect of,

is such that, were the said broadcasters to be regarded as one company, the body corporate would be a subsidiary of it, and

(I) RTÉ is one of the said broadcasters, or

(II) there exists a business relationship between the said broadcasters that, in the opinion of RTÉ, is of such a kind as is likely to result in the said broadcasters acting in concert with one another in exercising their rights under those shares or in exercising the said powers.

(14) For the purposes of subsection (13) (b) a broadcaster shall be deemed to have power to appoint to a directorship in relation to which the condition specified in paragraph (a) or (b) of section 155(2) of the Companies Act 1963 is satisfied, and for this purpose references in those paragraphs to the other company shall be construed as references to the broadcaster.

(15) RTÉ shall in each financial year mentioned in column (1) of Part 2 of the Table to this section use a per cent of the monies paid into the account that is not less than the per cent mentioned in column (2) opposite the mention of the financial year concerned for the purposes of—

(a) commissioning the making of independent sound broadcasting programmes,

(b) procuring the formulation by persons of proposals for the commissioning by RTÉ of the making of the above programmes, and

(c) assisting the completion of independent sound broadcasting programmes the making of which has not been commissioned by RTÉ,

and for no other purpose.

(16) A minimum of 95 per cent of the monies paid into the account shall be used by RTÉ for the purpose of—

(a) commissioning the making of independent television programmes,

(b) procuring the formulation by persons of proposals for the commissioning by RTÉ of the making of the above programmes, and

(c) assisting the completion of independent television broadcasting programmes the making of which has not been commissioned by RTÉ,

and for no other purpose.

TABLE

Part 1

Independent programmes account

Part 2

Independent sound broadcasting programmes