1. (1) This Act may be cited as the Competition and Consumer Protection Act 2014.

(2) The Competition Acts 2002 to 2012 and Parts 3 and 4 may be cited together as the Competition Acts 2002 to 2014 and shall be construed together as one Act.

(3) The Consumer Protection Act 2007 and Parts 5 and 6 may be cited together as the Consumer Protection Acts 2007 and 2014 and shall be construed together as one Act.

(4) The Communications (Retention of Data) Act 2011 and section 89 may be cited together as the Communications (Retention of Data) Acts 2011 and 2014 and shall be construed together as one Act.

(5) This Act, other than Part 4, 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, and for the repeal of different provisions effected by section 7.

(6) Part 4 shall come into operation on such day or days as the Minister for Communications, Energy and Natural Resources 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.

2. In this Act—

“Act of 2002” means the Competition Act 2002;

“Act of 2007” means the Consumer Protection Act 2007;

“authorised officer” shall be construed in accordance with section 35;

“Commission” has the meaning assigned to it by section 9;

“contravention” has the same meaning as it has in the Act of 2002;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“establishment day” shall be construed in accordance with section 8;

“dissolved body” has the meaning assigned to it by section 38;

“financial year” means a period of 12 months ending on 31 December in any year and, in the case of the first financial year of the Commission, means the period commencing on the establishment day and ending on 31 December in the year in which the establishment day falls;

“goods” has the same meaning as it has in the Act of 2007;

“Minister” means the Minister for Jobs, Enterprise and Innovation;

“prescribed” means prescribed by regulations made by the Minister;

“recognised trade union or staff association” means a trade union or staff association recognised by the Commission for the purposes of negotiations which are concerned with the remuneration or conditions of employment, or the working conditions of employees;

F1["Regulation of 2003" means Regulation (EC) No. 1/2003 of 16 December 2002⁸ on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

F1["relevant competition law" has the same meaning as it has in the Act of 2002;]

“relevant statutory provisions” means—

(a) “relevant statutory provisions” within the meaning of the Act of 2007,

(b) the Act of 2002, and any instrument made under that Act for the time being in force, and

(c) this Act, and any instrument made under this Act for the time being in force;

“services” has the same meaning as it has in the Act of 2007;

“undertaking” has the same meaning as it has in the Act of 2002.

3. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Every order (other than an order under section 1(5) or section 8 made by the Minister or an order under section 1(6) made by the Minister for Communications, Energy and Natural Resources) and regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

4. Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted within 2 years from the date on which the offence was alleged to have been committed.

5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

6. Where a merger or acquisition was notified under Part 3 of the Act of 2002 before the commencement of section 7(1)(b) and Parts 3 and 4, then, upon such commencement, the Act of 2002 shall apply to the merger or acquisition as if the amendments effected by section 7(1) and Parts 3 and 4 had not been made.

7. (1) The following provisions of the Act of 2002 are repealed:

(a) subsections (11B) and (11C) (inserted by section 2(h) of the Competition (Amendment) Act 2012) of section 8;

(b) sections 23 and 25;

(c) Part 4;

(d) Schedule 1.

(2) Part 2 (other than sections 24A to 24E) of the Act of 2007 is repealed.

47. Subsection (1) of section 3 of the Act of 2002 is amended—

(a) by inserting the following definitions:

‘Act of 2009’ means the Broadcasting Act 2009;

‘Council Regulation’ means Council Regulation (EC) No. 139/2004 of 20 January 2004¹ on the control of concentrations between undertakings;”,

(b) by substituting the following definition for the definition of “authorised officer”:

‘authorised officer’ has the same meaning as it has in the Competition and Consumer Protection Act 2014 ;”,

(c) by substituting the following definition for the definition of “Commission”:

“ ‘Commission’ means the Competition and Consumer Protection Commission;”,

(d) in the definition of “competent authority” by substituting “Commission for Communications Regulation” for “Commission” in each place it occurs,

(e) by substituting the following definition for the definition of “electronic communications network”:

‘electronic communications network’ has the same meaning as it has in the Act of 2009;”,

and

(f) by substituting the following definition for the definition of “undertaking”:

“ ‘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.”

48. Section 6 of the Act of 2002 is amended by substituting the following subsection for subsection (7):

“(7) In this section ‘competing undertakings’ means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.”

49. Section 12 of the Act of 2002 is amended by substituting “under section 37 of the Competition and Consumer Protection Act 2014” for “under section 45”.

50. Section 14A of the Act of 2002 is amended by inserting the following subsection after subsection (5):

“(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.”

51. Section 14B of the Act of 2002 is amended—

(a) in subsection (1), by substituting the following paragraph for paragraph (a):

“(a) following an investigation referred to in—

(i) paragraph (c) of subsection (1) of section 10 of the Competition and Consumer Protection Act 2014, by the Commission, or

(ii) section 47A (inserted by section 31 of the Communications Regulation (Amendment) Act 2007 by the Commission for Communications Regulation, and”,

and

(b) by deleting subsection (11).

52. Section 15C of the Act of 2002 is amended—

(a) by substituting the following subsection for subsection (3):

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

(b) by inserting the following subsection after subsection (3):

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

(c) by substituting the following subsection for subsection (4):

“(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.”,

and

(d) by inserting the following subsection after subsection (4):

“(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.”

53. Section 16 of the Act of 2002 is amended—

(a) in subsection (1) —

(i) by substituting the following paragraph for paragraph (b):

“(b) one or more individuals who already control one or more undertakings, or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings, or”, and

(ii) by substituting the following paragraph for paragraph (c):

“(c) the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed, and for the purposes of this paragraph ‘assets’ includes goodwill.”,

(b) in subsection (4), by substituting “on a lasting basis” for “on an indefinite basis”, and

(c) by inserting the following subsection after subsection (8):

“(8A) Subsection (6) shall not apply where the undertaking referred to in subsection (7) has acquired control on the basis of the future onward sale of the business to an ultimate buyer, in circumstances where the ultimate buyer bears the major part of the economic risks.”

54. The Act of 2002 is amended by substituting the following section for section 17:

“Application of sections 18 to 22

17. (1) Sections 18 to 22 are subject to Part 3A (inserted by section 74 of the Competition and Consumer Protection Act 2014).

(2) Notwithstanding subsection (1), any commitments or conditions in a determination made under this Part shall not be revoked or amended by the Minister for Communications, Energy and Natural Resources in his or her determination under Part 3A.

(3) The Minister for Communications, Energy and Natural Resources may however impose additional conditions in his or her determination under Part 3A.”

55. Section 18 of the Act of 2002 is amended—

(a) by substituting the following subsections for subsection (1):

“(1) Where—

(a) in relation to a proposed merger or acquisition, in the most recent financial year—

(i) the aggregate turnover in the State of the undertakings involved is not less than €50,000,000, and

(ii) the turnover in the State of each of 2 or more of the undertakings involved is not less than €3,000,000, or

(b) a proposed merger or acquisition falls within a class of merger or acquisition specified in an order under subsection (5),

each of the undertakings involved in the merger or acquisition shall notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect.

(1A) A notification under subsection (1) —

(a) shall be made before the proposed merger or acquisition is put into effect, and

(b) may be made after any of the following applicable events occurs:

(i) one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted;

(ii) the undertakings involved demonstrate to the Commission a good faith intention to conclude an agreement or a merger or acquisition is agreed;

(iii) in relation to a scheme of arrangement, a scheme document is posted to shareholders.”,

(b) in paragraph (c)(i) of subsection (2) —

(i) by substituting “(ii) ” for “(iii) ”,

(ii) by substituting “references to turnover in the State” for “references in them to the world-wide turnover and turnover in the State”, and

(iii) by substituting “references to turnover in the State” for “references, respectively, to the world-wide turnover and turnover in the State”,

(c) by substituting the following subsection for subsection (3):

“(3) In the case of a proposed merger or acquisition that is not required to be notified under subsection (1), any of the undertakings involved in the merger or acquisition may, before putting the merger or acquisition into effect, notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect, and such notification may be made after any of the applicable events referred to in paragraph (b) of subsection (1A) occurs.”,

(d) in subsection (4), by substituting “the Council Regulation” for “Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings”,

(e) in subsection (9), by substituting “an undertaking, or the person in control of an undertaking,” for “the person in control of an undertaking”,

(f) in subsection (10), by substituting “the undertaking or person” for “the person”,

(g) in subsection (12), by inserting “or if the Commission is of the opinion that the full details required under subsection (1) or (3), or all the specified information requested under section 20(2), have not been provided,” after “material respect,”,

(h) by inserting the following subsection after subsection (12):

“(12A) Notwithstanding section 19(2), the Commission may, for the purposes of this Part, request or accept notification of a merger or acquisition to which subsection (1) applies but which was purported to have been put into effect without having been notified in accordance with that subsection.”,

(i) in subsection (13), by substituting “the Council Regulation” for “Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings”, and

(j) in subsection (14), by substituting “the Council Regulation” for “Council Regulation No. 4064/89”.

56. Section 19 of the Act of 2002 is amended—

(a) in paragraph (d) of subsection (1), by substituting “120 working days after the appropriate date have elapsed, or, where a requirement was made under section 20(2), 120 working days and any period of suspension that applied pursuant to section 22(4A) after the appropriate date have elapsed” for “4 months after the appropriate date have elapsed”,

(b) in subsection (5), by substituting “12 months after the relevant period referred to in subsection (1)(d) has elapsed” for “16 months after the appropriate date”,

(c) in subsection (6) —

(i) by substituting the following paragraphs for paragraph (a):

“(a) unless paragraph (b) applies, the date of receipt by the Commission of the notification of the merger or acquisition concerned under section 18(1),

(aa) notwithstanding subsection (8), and unless paragraph (b) applies, the date of receipt by the Commission of the first notification of a merger or acquisition under section 18(3),”,

and

(ii) by substituting, in subsection (b), “30 working days” for “1 month”,

and

(d) by substituting the following subsection for subsection (7):

“(7) The reference, in the definition of ‘appropriate date’ in subsection (6), and in section 22(4A), to the period specified in a requirement, is a reference to—

(a) the period specified in the requirement as being the period within which the information concerned shall be supplied, and

(b) where a requirement has been extended under section 20(2A) or section 20(2B), the date specified in the requirement as so extended.”

57. Section 20 of the Act of 2002 is amended—

(a) in subsection (2), by inserting “and an officer (where the undertaking is a body corporate), partner (where the undertaking is a partnership) or any individual in control (in the case of any other form of undertaking) shall certify in writing that to the best of his or her knowledge and belief, the undertaking has complied with a requirement under this section” after “with it”, and

(b) by inserting the following subsections after subsection (2):

“(2A) If, before the expiration of the period specified in a notice under subsection (2), the undertaking or undertakings concerned request, in writing, an extension to the specified period, the Commission may, where it considers it appropriate to do so, extend that period, and an undertaking to which such an extension is granted shall comply with the requirement under subsection (2) within the specified period as so extended.

(2B) The Commission, pursuant to a request from the undertaking or undertakings concerned, and where it considers it appropriate to do so, may further extend the period as extended under subsection (2A) or this subsection.”

58. Section 21 of the Act of 2002 is amended—

(a) in subsection (2), by substituting “30 working days” for “1 month”,

(b) in subsection (3), by substituting “60 working days” for “2 months”, and

(c) in subsection (4) —

(i) by substituting “45 working days” for “45 days”, and

(ii) by substituting “30 working days” for “1 month”.

59. Section 22 of the Act of 2002 is amended—

(a) in subsection (4) —

(i) in paragraph (a), by substituting “120 working days” for “4 months”, and

(ii) in paragraph (b), by substituting “60 working days” for “one month”,

and

(b) by inserting the following subsections after subsection (4):

(4A) Notwithstanding subsection (4)(a), if the Commission has, under section 20(2), made, not later than 30 working days from the date of its determination under section 21(2)(b), a requirement or requirements of one or more of the undertakings concerned, the period of 120 working days referred to in subsection (4)(a) shall stand suspended on the date that the first requirement is made and shall resume—

(a) on the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, on whichever of the dates on which the requirements are complied with is the later or latest,

(b) where the requirement is not complied with or each of the 2 or more requirements is not complied with, on the date immediately following the expiry of the period specified in the requirement or, as the case may be, on the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(c) in case 2 or more requirements are made but one or more but not all of them are complied with, on the later or latest of the following dates, namely the dates provided by applying—

(i) paragraph (a) to the requirement or requirements complied with, and

(ii) paragraph (b) to the requirement or requirements not complied with.

(4B) If any of the undertakings that have made the notification concerned submits to the Commission during a full investigation under this section proposals to which section 20(3) applies, subsections (4) and (4A), section 19(1)(d) and, in the case of a media merger, paragraph (c) of the definition of ‘relevant date’ in section 28A(1) (inserted by section 74 of the Competition and Consumer Protection Act 2014), shall apply as if ‘135 working days’ were substituted for ‘120 working days’ in those provisions.”

60. Section 24 of the Act of 2002 is amended—

(a) by deleting subsection (2),

(b) in subsection (3), by substituting the following paragraph for paragraph (b):

“(b) shall be made within 40 working days after the date on which the undertaking is informed by the Commission of the determination concerned or, in case the determination is one that was made under section 22(3)(c) in relation to a media merger, within 40 working days after the date the Minister for Communications, Energy and Natural Resources has informed the undertaking of his or her determination under paragraph (a) or (b) of section 28D(1), or under section 28G(1), as the case may be.”,

(c) in subsection (7) —

(i) in paragraph (b), by deleting “or”,

(ii) in paragraph (c), by substituting “decision, or” for “decision.”, and

(iii) by inserting the following paragraph after paragraph (c):

“(d) remit the matter to the Commission and, if appropriate, to the Minister for Communications, Energy and Natural Resources, with a direction to make a determination taking into account the findings of the High Court, and with any other directions that the High Court considers appropriate.”,

and

(d) in subsection (8), by deleting “or shall, where the operation of section 25(1) results in an order under section 23(4) being annulled after the expiry of the period hereafter mentioned,”.

61. Section 26 of the Act of 2002 is amended—

(a) in subsection (1), by deleting “; ‘order’ means an order made by the Minister under section 23(4) ”,

(b) in subsection (2), by substituting “a commitment or a determination” for “a commitment, a determination or an order”,

(c) in subsection (3), by substituting “a commitment or a determination” for “a commitment, a determination or an order”,

(d) in subsection (4), by substituting “a commitment or a determination” for “a commitment, a determination or an order”, and

(e) by inserting the following subsection after subsection (9):

“(10) The Commission may monitor and review commitments or conditions contained in a determination.”

62. Subsection (1) of section 27 of the Act of 2002 is amended by substituting “(ii) ” for “(iii) ”.

63. Section 28 of the Act of 2002 is amended—

(a) by substituting “this Part or Part 3A” for “this Part” in each place where it occurs, and

(b) by substituting “section 18(1), or section 28B(1),” for “section 18(1)” in each place where it occurs.

64. Subsection (2) of section 47 of the Act of 2002 is amended by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs.

65. Section 47A of the Act of 2002 is amended—

(a) by substituting “Commission for Communications Regulation” for “Commission”,

(b) by inserting “or Article 101 of the Treaty on the Functioning of the European Union” after “section 4”, and

(c) by inserting “or Article 102 of the Treaty on the Functioning of the European Union” after “section 5”.

66. Section 47B of the Act of 2002 is amended—

(a) in subsection (1) —

(i) by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs, and

(ii) by substituting “or any member of the staff of the Commission for Communications Regulation” for “any member of the Commission’s staff”,

and

(b) in subsection (2), by substituting “Commission for Communications Regulation” for “Commission”.

67. Section 47C of the Act of 2002 is amended by substituting “Commission for Communications Regulation” for “Commission”.

68. Section 47D of the Act of 2002 is amended—

(a) in subsection (1), by substituting “Commission for Communications Regulation” for “Commission”, and

(b) in subsection (2), by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs.

69. Section 47E of the Act of 2002 is amended—

(a) in subsection (1), by substituting “Commission for Communications Regulation” for “Commission”,

(b) in subsection (2), by substituting “Commission for Communications Regulation” for “Commission”, and

(c) in subsection (3), by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs.

70. Section 47F of the Act of 2002 is amended by substituting “Commission for Communications Regulation” for “Commission”.

71. Section 47G of the Act of 2002 is amended—

(a) in subsection (1), by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs,

(b) in subsection (2), by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs,

(c) in subsection (3), by substituting “Commission for Communications Regulation” for “Commission”,

(d) in subsection (4), by substituting “Commission for Communications Regulation” for “Commission”,

(e) in subsection (6), by substituting “Commission for Communications Regulation” for “Commission” in each place where it occurs,

(f) in subsection (8), by substituting “Commission for Communications Regulation” for “Commission”, and

(g) in subsection (9), by substituting “Commission for Communications Regulation” for “Commission”.

72. Section 50 of the Act of 2002 is amended—

(a) in subsection (1), by deleting “and in good faith”, and

(b) in subsection (3), by deleting “and in good faith”.

73. Section 52 of the Act of 2002 is amended, in subsection (2), by deleting “, section 23(4) ”.

74. The Act of 2002 is amended by inserting the following Part after Part 3:

“PART 3A

Media Mergers

Interpretation and application

28A. (1) In this Part—

‘advisory panel’ has the meaning assigned to it by section 28F;

‘broadcasting service’ has the same meaning as it has in the Act of 2009;

‘carries on a media business in the State’ means, in relation to a media business—

(a) having a physical presence in the State, including a registered office, subsidiary, branch, representative office or agency, and making sales to customers located in the State, or

(b) having made sales in the State of at least €2 million in the most recent financial year;

‘diversity of content’ means the extent to which the broad diversity of views (including diversity of views on news and current affairs) and diversity of cultural interests prevalent in Irish society is reflected through the activities of media businesses in the State including their editorial ethos, content and sources;

‘diversity of ownership’ means the spread of ownership and control of media businesses in the State linked to the market share of those media businesses as measured by listenership, readership, reach or other appropriate measures;

‘full media merger examination’ has the meaning assigned to it by section 28E;

‘Joint Oireachtas Committee’ has the same meaning as it has in the Act of 2009;

‘media business’ means the business (whether all or part of an undertaking’s business) of—

(a) the publication of newspapers or periodicals consisting substantially of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet,

(b) transmitting, re-transmitting or relaying a broadcasting service,

(c) providing any programme material consisting substantially of news and comment on current affairs to a broadcasting service, or

(d) making available on an electronic communications network any written, audio-visual or photographic material, consisting substantially of news and comment on current affairs, that is under the editorial control of the undertaking making available such material;

‘media merger’ means—

(a) a merger or acquisition in which 2 or more of the undertakings involved carry on a media business in the State, or

(b) a merger or acquisition in which one or more of the undertakings involved carries on a media business in the State and one or more of the undertakings involved carries on a media business elsewhere;

‘plurality of the media’ includes both diversity of ownership and diversity of content;

‘programme material’ has the same meaning as it has in the Act of 2009;

‘reach’ means the proportion of a population or audience that consumes any part of the output of a media business in a given period;

‘relevant criteria’ means the following matters:

(a) the likely effect of the media merger on plurality of the media in the State;

(b) the undesirability of allowing any one undertaking to hold significant interests within a sector or across different sectors of media business in the State;

(c) the consequences for the promotion of plurality of the media in the State of intervening to prevent the media merger or attaching conditions to the approval of the media merger;

(d) if appropriate, the adequacy of the following to protect the public interest in plurality of the media in the State:

(i) the scale and reach of RTÉ and TG4;

(ii) Part 6 of the Act of 2009;

(iii) the ownership and control policy of the Broadcasting Authority of Ireland for the time being in force;

(e) the proposed commitments that the undertakings are prepared to offer and which the Minister for Communications, Energy and Natural Resources may incorporate pursuant to section 28D(5) or section 28E(10) in his or her determination;

(f) the extent to which the public interest can be secured by the imposition of any conditions by the Minister for Communications, Energy and Natural Resources under section 28D or section 28G;

‘relevant date’ means, in relation to a media merger, 10 working days from whichever of the following dates is applicable:

(a) the date of a determination by the Commission under paragraph (a) of section 21(2) or under paragraph (a) or (c) of section 22(3);

(b) the day after the period specified in subsection (2) of section 21 has elapsed without the Commission having informed the undertakings that made the notification concerned of the determination (if any) it has made under paragraph (a) or (b) of that subsection (2);

(c) where the Commission has made a determination under section 21(2)(b), the day after—

(i) 120 working days have elapsed after the appropriate date within the meaning of section 19(6), or

(ii) where a requirement or requirements referred to in section 22(4A) were made under section 20(2), 120 working days and any period of suspension that applied pursuant to section 22(4A) have elapsed after the appropriate date within the meaning of section 19(6),

without the Commission having made a determination under section 22;

(d) the date of a decision of the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation ;

(e) the date that Article 10(6) of the Council Regulation comes into effect;

‘RTÉ’ means Raidió Teilifís Éireann;

‘TG4’ means Teilifís na Gaeilge;

‘undertakings involved’ shall—

(a) be construed in accordance with Part 3, or

(b) in the case of a merger or acquisition to which section 28B(6) applies, mean the undertakings concerned in accordance with the Council Regulation.

(2) For the avoidance of doubt, this Part applies to a media merger that has been notified to the European Commission in accordance with the Council Regulation, and consideration of, and a determination on, such a media merger under this Part by the Minister for Communications, Energy and Natural Resources shall be an appropriate measure to protect the legitimate interest in plurality of the media within the meaning of Article 21(4) of that Council Regulation.

Notification of media merger to Minister for Communications, Energy and Natural Resources

28B. (1) In the case of a merger or acquisition that is a media merger, the undertakings involved that notified the Commission under section 18(1), or that notified the European Commission, as the case may be, shall notify the Minister for Communications, Energy and Natural Resources in writing, and shall provide him or her with full details, of the proposal to put the merger or acquisition into effect.

(2) A notification to the Minister for Communications, Energy and Natural Resources under subsection (1) —

(a) shall be made on or before the relevant date, and

(b) notwithstanding paragraph (a), shall not be made before the Commission, or the European Commission, as the case may be, has been notified of the proposal to put the merger or acquisition into effect.

(3) When making a notification under subsection (1), each of the undertakings involved in the media merger shall provide full information to the Minister for Communications, Energy and Natural Resources on all circumstances in relation to the media merger concerned that may impair plurality of the media in the State and shall notify the Minister for Communications, Energy and Natural Resources of any changes in the information.

(4) The undertakings involved in a media merger may make submissions to the Minister for Communications, Energy and Natural Resources in relation to the applicability of the guidelines referred to in section 28L to the media merger.

(5) If the Commission makes a determination referred to in paragraph (a) or (b) of section 21(2) or paragraph (a), (b) or (c) of section 22(3) in relation to a media merger it shall, immediately after doing so, inform the Minister for Communications, Energy and Natural Resources of that fact.

(6) If the European Commission makes a decision under Article 6(1)(a), (b) or (c) or Article 8(1), (2) or (3) of the Council Regulation or if Article 10(6) of that Council Regulation takes effect in relation to a media merger the undertakings involved shall, immediately after having being notified of the decision or of Article 10(6) having taken effect, as the case may be, inform the Minister for Communications, Energy and Natural Resources.

(7) A notification for the purposes of subsection (1) shall not be valid and any determination under this Part made on foot of such notification is void—

(a) where any information provided or statement made under subsection (1), (3) or (4) or section 28D(3) or 28E(7) is false or misleading in a material respect, or

(b) if the Minister for Communications, Energy and Natural Resources is of the opinion that full details referred to in subsection (1), full information or changes to the information referred to in subsection (3), or the specified information referred to in sections 28D(3) or 28E(7), were not provided.

(8) Where there is a contravention of subsection (1) or (3), the person in control of an undertaking that has failed to notify the Minister for Communications, Energy and Natural Resources or that has failed to supply the information required, as the case may be, shall be guilty of an offence and shall be liable—

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

(b) on conviction on indictment, to a fine not exceeding €250,000.

(9) Subsection (8) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in that subsection is guilty of a separate offence under that subsection for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (8) shall have effect as if—

(a) in paragraph (a), ‘a class E fine’ were substituted for ‘a class A fine’, and

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

(10) For the purposes of subsection (8) the person in control of an undertaking is—

(a) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,

(b) in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention,

(c) in the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the contravention.

(11) Summary proceedings in relation to an offence under this section may be brought by the Minister for Communications, Energy and Natural Resources.

Limitation on media merger being put into effect

28C. (1) Notwithstanding any other provision of this Act or of any other enactment, a media merger shall not be put into effect before the Minister for Communications, Energy and Natural Resources makes a determination under paragraph (a) or (b) of section 28D(1) or paragraph (a) or (c) of section 28G(1).

(2) Notwithstanding subsection (1), a determination referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 12 months from the date on which the determination is made.

(3) Any media merger that purports to be put into effect, where that putting into effect contravenes this section, is void.

Initial examination by Minister for Communications, Energy and Natural Resources of media merger notification

28D. (1) Not later than 30 working days (or 45 working days, where proposed commitments referred to in subsection (5) have been made) from the relevant date or from the appropriate date, whichever is the later, the Minister for Communications, Energy and Natural Resources shall inform the undertakings that have made the media merger notification under section 28B of whichever of the following determinations he or she has made, namely—

(a) that in his or her opinion the result of the media merger will not be contrary to the public interest in protecting plurality of the media in the State, and accordingly that the media merger may be put into effect,

(b) that, in light of proposed commitments offered by the undertakings, in his or her opinion the result of the media merger will not be contrary to the public interest in protecting plurality of the media in the State, and accordingly the media merger may be put into effect subject to the incorporation of those proposed commitments as specified conditions to be complied with, or

(c) that he or she is concerned that the media merger may be contrary to the public interest in protecting plurality of the media in the State, and accordingly that he or she intends to request the Broadcasting Authority of Ireland to carry out an examination under section 28E.

(2) In making a determination under subsection (1) as to whether the result of the media merger is likely to be contrary to the public interest in protecting plurality of the media in the State, the Minister for Communications, Energy and Natural Resources shall have regard to—

(a) the relevant criteria,

(b) any guidelines issued under section 28L,

(c) all submissions made and information provided to the Minister for Communications, Energy and Natural Resources by the undertakings involved in the media merger,

(d) and take full account of, where applicable, the determination of the Commission under paragraph (a) of section 21(2) or under paragraph (a) or (c) of section 22(3),

(e) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(f) relevant reports published by the Minister for Communications, Energy and Natural Resources under section 28M, and

(g) relevant research published by the Broadcasting Authority of Ireland under section 28M.

(3) Where the Minister for Communications, Energy and Natural Resources requires further information for the purposes of this section, he or she may by notice in writing require any one or more of the undertakings involved to supply to him or her specified information within a specified period, and an undertaking of whom such a requirement is made shall comply with it.

(4) For the purposes of subsection (2), the Minister for Communications, Energy and Natural Resources may enter into discussions with the undertakings involved in the media merger or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the media merger on plurality of the media in the State.

(5) In the course of the discussions under subsection (4), any of the undertakings involved in the media merger concerned may submit to the Minister for Communications, Energy and Natural Resources proposed commitments of the kind mentioned in subsection (6) with a view to the proposed commitments becoming binding on it or them if the Minister for Communications, Energy and Natural Resources incorporates the proposed commitments as specified conditions to be complied with in his or her determination under subsection (1)(b) in relation to the media merger.

(6) The proposed commitments referred to in subsection (5) are proposed commitments with regard to the manner in which the media merger may be put into effect or to the taking, in relation to the media merger, of any other measures referred to in subsection (4).

(7) As soon as may be after the Minister for Communications, Energy and Natural Resources makes a determination under subsection (1), he or she—

(a) shall furnish to the undertakings involved a copy of the determination, and

(b) may publish, with due regard for commercial confidentiality—

(i) the fact of the making of the determination,

(ii) whether the determination was made under paragraph (a), (b) or (c) of subsection (1), and

(iii) where his or her determination was made under subsection (1)(b), a summary of the conditions specified in the determination.

(8) After the Minister for Communications, Energy and Natural Resources has furnished the determination to the undertakings involved in accordance with subsection (7)(a) —

(a) he or she may correct the determination at any time before the determination is published under paragraph (c) so as to remove any clerical or typographical errors or any errors of a similar nature and shall inform the undertakings involved of any such changes made, but may not reconsider or re-open any aspect of the determination,

(b) not later than 10 working days from the date of receipt of the determination under subsection (7)(a), the undertakings involved may request the Minister for Communications, Energy and Natural Resources in writing to omit from the version of the determination to be published under paragraph (c) any information that they consider to be commercially sensitive, and

(c) he or she shall publish the determination not later than 15 working days from the date of the determination, with due regard for commercial confidentiality.

(9) In this section, reference to ‘appropriate date’ means—

(a) unless paragraph (b) applies, the date of receipt by the Minister for Communications, Energy and Natural Resources of the notification of the media merger concerned under section 28B,

(b) if the Minister for Communications, Energy and Natural Resources has made, under subsection (3), not later than 30 working days from the date of receipt by him or her of the notification of the media merger concerned under section 28B, a requirement or requirements of one or more of the undertakings involved—

(i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest,

(ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying—

(I) subparagraph (i) to the requirement or requirements complied with, and

(II) subparagraph (ii) to the requirement or requirements not complied with.

(10) The reference in the definition of ‘appropriate date’ in subsection (9) to the period specified in a requirement is a reference to the period specified in the requirement as being the period within which the information concerned shall be supplied.

(11) For the purpose of the reference in subsection (9), and in any other provision of this Act, to the date on which the Minister for Communications, Energy and Natural Resources receives a notification under section 28B, if a single notification is not made by all the undertakings involved, the said reference shall be construed as a reference to the later or latest of the dates on which a notification of the merger or acquisition involved under section 28B is received by the Minister for Communications, Energy and Natural Resources.

Full media merger examination

28E. (1) Where the Minister for Communications, Energy and Natural Resources makes a determination under section 28D(1)(c), he or she shall request the Broadcasting Authority of Ireland to carry out an examination (in this Part referred to as a ‘full media merger examination’) in relation to the media merger concerned.

(2) On receipt of a request under subsection (1), the Broadcasting Authority of Ireland shall, as soon as may be—

(a) cause a copy of the request to be published on the website of the Broadcasting Authority of Ireland,

(b) invite submissions to be made not later than 20 working days from the date of publication of the request pursuant to paragraph (a), and

(c) cause a copy of the request to be sent to the Joint Oireachtas Committee and invite a submission from that Joint Oireachtas Committee within the period specified in paragraph (b).

(3) The submissions referred to in paragraphs (b) and (c) of subsection (2) —

(a) shall be furnished, pursuant to subsection (9)(c), to the undertakings involved in the media merger,

(b) shall be furnished to the Minister for Communications, Energy and Natural Resources and where an advisory panel has been established under section 28F, to the advisory panel, to enable them to perform their functions under this Part,

(c) may be referred to or quoted from in, or annexed to, the documents referred to in subsections (9)(a) and (12)(b) and section 28G(4)(c), and

(d) shall not be published or otherwise disclosed to the public by the Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or the advisory panel before the Minister for Communications, Energy and Natural Resources publishes the documents referred to in section 28G(4)(c).

(4) The Broadcasting Authority of Ireland shall—

(a) not later than 80 working days from the date of the request under subsection (1) or the applicable date, whichever is the later, make a report in writing to the Minister for Communications, Energy and Natural Resources in relation to its examination, and

(b) as soon as may be after making the report under paragraph (a), send the report to the undertakings involved.

(5) A report under subsection (4) shall contain a recommendation as to whether the media merger should be put into effect with or without conditions or should not be put into effect.

(6) The Broadcasting Authority of Ireland, in order to make a report under subsection (4), shall form a view as to whether the result of the media merger is likely to be contrary to the public interest in protecting plurality of the media in the State, and for that purpose, shall have regard to—

(a) the relevant criteria,

(b) any guidelines issued by the Minister for Communications, Energy and Natural Resources under section 28L,

(c) all submissions made and information provided—

(i) to the Minister for Communications, Energy and Natural Resources, during his or her initial examination under section 28D, by the undertakings involved in the media merger, and

(ii) to the Broadcasting Authority of Ireland, during the full media merger examination, by the undertakings involved in the media merger, by any other person in response to an invitation for submissions under subsection (2)(b), or by the Joint Oireachtas Committee in response to an invitation for a submission under subsection (2)(c),

(d) and take full account of, where applicable, the determination of the Commission under paragraph (a) of section 21(2) or under paragraph (a) or (c) of section 22(3),

(e) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(f) where applicable, the opinion of the advisory panel established under section 28F and any clarifications of the opinion provided by the advisory panel in accordance with that section,

(g) if the undertakings involved have responded to the draft report and recommendation provided to them pursuant to subsection (9), the draft report and recommendation and the responses of the undertakings involved to the draft report and recommendation,

(h) relevant reports published by the Minister for Communications, Energy and Natural Resources under section 28M, and

(i) relevant research published by the Broadcasting Authority of Ireland under section 28M.

(7) Where the Broadcasting Authority of Ireland requires further information for the purposes of this section, it may, by notice in writing served on the undertakings, require any one or more of the undertakings involved to supply to it specified information within a specified period, and an undertaking of whom such a requirement is made shall comply with it.

(8) For the purposes of paragraph (6), the Broadcasting Authority of Ireland may enter into discussions with the undertakings involved in the media merger or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the media merger on plurality of the media in the State.

(9) The Broadcasting Authority of Ireland shall, not later than 30 working days before it is due to make its report under subsection (4), furnish the undertakings involved with—

(a) its draft report and draft recommendation to which the undertakings involved may respond not later than 10 working days from the date of receiving the draft report and draft recommendation,

(b) if applicable, the opinion and any clarifications issued by the advisory panel under section 28F, and

(c) if applicable, the submissions referred to in subsection (6)(c).

(10) In the course of any discussions under subsection (8), any of the undertakings involved in the media merger concerned may submit to it, not later than 20 working days before the Broadcasting Authority of Ireland is due to make its report to the Minister for Communications, Energy and Natural Resources under subsection (4), proposed commitments of the kind mentioned in subsection (11) with a view to the proposed commitments becoming binding on it or them if the Minister for Communications, Energy and Natural Resources incorporates the proposed commitments as specified conditions to be complied with in his or her determination under section 28G(1)(c) in relation to the media merger.

(11) The proposed commitments referred to in subsection (10) are proposed commitments with regard to the manner in which the media merger may be put into effect or to the taking, in relation to the media merger, of any other measures referred to in subsection (8).

(12) Not later than 7 working days from the date of the making of its report to the Minister for Communications, Energy and Natural Resources under subsection (4), the Broadcasting Authority of Ireland—

(a) may, without reconsidering or re-opening any aspect of its report, correct the report so as to remove any clerical or typographical errors or any errors of a similar nature, and

(b) where one or more such corrections have been made, shall—

(i) send the corrected report to the Minister for Communications, Energy and Natural Resources and the undertakings involved, and

(ii) inform the Minister for Communications, Energy and Natural Resources and the undertakings involved of the corrections made.

(13) In this section, reference to ‘applicable date’ means—

(a) unless paragraph (b) applies, the date the Minister for Communications, Energy and Natural Resources makes a determination under section 28D(1)(c),

(b) if the Broadcasting Authority of Ireland has made, under subsection (8), not later than 30 working days from the date the Minister for Communications, Energy and Natural Resources makes a determination under section 28D(1)(c), a requirement or requirements of one or more of the undertakings involved—

(i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest,

(ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or

(iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying—

(I) subparagraph (i) to the requirement or requirements complied with, and

(II) subparagraph (ii) to the requirement or requirements not complied with.

(14) The reference in the definition of ‘applicable date’ in subsection (13) to the period specified in a requirement is a reference to the period specified in the requirement as being the period within which the information concerned shall be supplied.

Advisory panel

28F. (1) As soon as may be after the Minister for Communications, Energy and Natural Resources requests the Broadcasting Authority of Ireland to conduct a full media merger examination under section 28E, he or she may, if he or she considers that the opinion of an advisory panel is required in order to assist the Broadcasting Authority of Ireland in carrying out the full media merger examination and in making its report under section 28E, establish an advisory panel (in this Part referred to as an ‘advisory panel’) to provide a reasoned opinion in writing to the Broadcasting Authority of Ireland on the application of the relevant criteria to the media merger in question and to provide clarifications of the opinion where requested by the Broadcasting Authority of Ireland in accordance with subsection (6)(b).

(2) An advisory panel shall consist of at least 3 and not more than 5 persons appointed by the Minister for Communications, Energy and Natural Resources, each of whom shall have knowledge of, and expertise in, law, journalism, media, business or economics.

(3) The Minister for Communications, Energy and Natural Resources shall appoint one member of the advisory panel as chairperson of the panel.

(4) A person is not eligible to be appointed as a member of an advisory panel if the person, for the time being—

(a) is entitled under the Standing Orders of either House of the Oireachtas to sit therein,

(b) is a member of the European Parliament,

(c) is entitled under the Standing Orders of a local authority to sit as a member thereof,

(d) is a member, officer or employee of the Broadcasting Authority of Ireland, or

(e) has a pecuniary interest or other beneficial interest in, or material to, any matter which is to be considered by the advisory panel.

(5) An advisory panel shall determine its own procedure.

(6) Notwithstanding subsection (5) —

(a) an advisory panel shall submit its opinion referred to in subsection (1) to the Broadcasting Authority of Ireland in relation to the application of the relevant criteria to the media merger in question not later than 20 working days from the date of a request under subsection (1), but no such opinion shall be requested or provided after the draft report and recommendation has been sent to the undertakings involved under section 28E(9), and

(b) an advisory panel shall provide clarification in writing of its opinion referred to in subsection (1) pursuant to a request in writing for such clarification within such period as the Broadcasting Authority of Ireland may specify in the request, but no such clarification shall be requested or provided after the draft report and recommendation has been sent to the undertakings involved under section 28E(9).

(7) Following the determination of the Minister for Communications, Energy and Natural Resources under section 28G in respect of the relevant media merger, an advisory panel shall stand dissolved.

(8) For the purposes of this section, a person shall be regarded as having a beneficial interest in, or material to, a matter which is to be considered by the advisory panel in each of the following cases:

(a) the person, any connected relative of the person or a nominee of either of them is a member of a company or any other body which has a beneficial interest in, or material to, any matter which is to be considered by the advisory panel;

(b) the person or any connected relative of the person is in partnership with or is in the employment of a person who has a beneficial interest in or material to any such matter;

(c) the person or any connected relative of the person is a party to any arrangement or agreement (whether or not enforceable) concerning land to which any such matter relates.

(9) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter by reason only that he or she or any company or other person or any other body mentioned in subsection (8) has an interest which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question in respect of the matter or in performing any function in relation to that matter.

(10) In this section—

‘civil partner’ means a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

‘connected relative’, in relation to a person, means a spouse, partner, civil partner, parent, brother, sister, child or a spouse, partner or civil partner of the child of the person.

Determination of Minister for Communications, Energy and Natural Resources after full media merger examination

28G. (1) The Minister for Communications, Energy and Natural Resources shall, not later than 20 working days from the date the report of the Broadcasting Authority of Ireland was made to him or her under section 28E(4), make whichever of the following determinations he or she considers appropriate, namely that the media merger—

(a) may be put into effect,

(b) may not be put into effect, or

(c) may be put into effect, subject to the conditions specified in the determination being complied with,

on the ground that he or she considers that the result of the media merger will or will not, as the case may be, be contrary to the public interest in protecting plurality of the media in the State or, as appropriate, will not be contrary to the public interest in protecting plurality of the media in the State if conditions so specified are complied with.

(2) When making a determination under subsection (1), the Minister for Communications, Energy and Natural Resources shall have regard to—

(a) the relevant criteria,

(b) the report of the Broadcasting Authority of Ireland under section 28E,

(c) any guidelines issued under section 28L,

(d) all submissions made and information provided—

(i) to the Minister for Communications, Energy and Natural Resources, during his or her initial examination under section 28D, by the undertakings involved in the media merger, and

(ii) to the Broadcasting Authority of Ireland, during the full media merger examination, by the undertakings involved in the media merger, by any other person in response to an invitation for submissions under section 28E(2)(b), or by the Joint Oireachtas Committee in response to an invitation for a submission under section 28E(2)(c),

(e) and take full account of, where applicable, the determination of the Commission under paragraph (a) of section 21(2) or under paragraph (a) or (c) of section 22(3),

(f) and take full account of, where applicable, the decision by the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation,

(g) where applicable, the opinion of the advisory panel established under section 28F and any later clarifications of the opinion provided by the advisory panel in accordance with that section,

(h) if the undertakings involved have responded to the draft report and recommendation provided to them pursuant to section 28E(9), the draft report and recommendation and the responses of the undertakings involved to the draft report and recommendation,

(i) relevant reports published by the Minister for Communications, Energy and Natural Resources under section 28M, and

(j) relevant research published by the Broadcasting Authority of Ireland under section 28M.

(3) As soon as may be after the Minister for Communications, Energy and Natural Resources makes a determination under subsection (1), he or she—

(a) shall furnish to the undertakings involved a copy of the determination, and

(b) may publish in Iris Oifigiúil, with due regard for commercial confidentiality—

(i) the fact of the making of the determination,

(ii) whether the determination was made under paragraph (a), (b) or (c) of subsection (1), and

(iii) where his or her determination was made under subsection (1)(c), a summary of the conditions specified in the determination.

(4) After the Minister for Communications, Energy and Natural Resources has furnished the determination to the undertakings involved in accordance with subsection (3)(a) —

(a) he or she may correct the determination at any time before the determination is published under paragraph (c)(i) so as to remove any clerical or typographical errors or any errors of a similar nature and shall inform the undertakings involved of any such changes made, but may not reconsider or re-open any aspect of the determination,

(b) not later than 15 working days from the date the determination is furnished to them under subsection (3)(a), the undertakings involved may request the Minister for Communications, Energy and Natural Resources in writing to omit from the version of the determination to be published under paragraph (c) any information that they consider to be commercially sensitive, and

(c) he or she shall publish on the internet, after 15 working days, but not later than 30 working days, from the date of the determination, with due regard for commercial confidentiality—

(i) the determination,

(ii) the report of the Broadcasting Authority of Ireland to the Minister for Communications, Energy and Natural Resources under section 28E, and

(iii) where applicable, the opinion of the advisory panel established under section 28F and any clarifications of the opinion provided by the advisory panel.

Review of conditions in determination under section 28G(1)(c)

28H. (1) Where all the undertakings involved in a media merger are of the opinion that the market conditions applicable to the merger have substantially changed since the date the Broadcasting Authority of Ireland made its report to the Minister for Communications, Energy and Natural Resources under section 28E(4), the undertakings involved may, not later than 40 working days from the date the determination under section 28G(1)(c) is notified to them, request the Minister for Communications, Energy and Natural Resources to review the conditions contained in the determination.

(2) On receipt of a request under subsection (1), the Minister for Communications, Energy and Natural Resources shall—

(a) consider whether the market conditions have substantially changed, and

(b) if he or she is satisfied that the market conditions have substantially changed, he or she shall carry out a review of the conditions contained in the determination to ascertain whether one or more of those conditions should be amended or revoked because they are no longer necessary, in light of the substantial change in the market conditions, to protect plurality of the media in the State.

(3) Following a review under subsection (2) and not later than 40 working days from the date of a request under subsection (1), the Minister for Communications, Energy and Natural Resources may, with the consent of the undertakings involved, amend or revoke in writing one or more of the conditions contained in the determination.

(4) If the Minister for Communications, Energy and Natural Resources amends or revokes one or more of the conditions contained in the determination pursuant to subsection (3), as soon as may be, he or she—

(a) shall furnish to the undertakings involved a copy of the amended conditions or if all the conditions have been revoked, a statement to that effect, and

(b) may publish, with due regard for commercial confidentiality—

(i) the fact of the amendment or revocation of one or more of the conditions under this section, and

(ii) a summary of the amended conditions or if all the conditions have been revoked, a statement to that effect.

Enforcement of certain determinations

28I. (1) It shall be lawful for the High Court to grant an injunction on the motion of the Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or any of the undertakings involved in the media merger to enforce compliance with the terms of a determination for the time being in force.

(2) Subsection (1) shall not affect any other right of the Minister for Communications, Energy and Natural Resources to bring proceedings (whether civil or criminal) for the enforcement of compliance with the terms of a determination.

(3) A person who contravenes (whether by act or omission) a provision of a determination for the time being in force commits an offence and shall be liable—

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

(b) on conviction on indictment, to a fine not exceeding €10,000 or to imprisonment for a term not exceeding 2 years or to both such fine and such imprisonment.

(4) Every person who aids, abets or assists another person, or conspires with another person, to do anything (whether by way of act or of omission) the doing of which is an offence by virtue of subsection (3) shall himself or herself commit an offence under this section and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(5) Where an offence under subsection (3) or (4) which is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who is a director, manager, secretary, member of the committee of management or other controlling authority of any such body, or who is any other similar officer of any such body, that person shall also commit an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(6) Subsections (3), (4) and (5) operate so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in the subsection concerned is guilty of a separate offence under that subsection for each day that the contravention occurs, but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (3) shall have effect as if—

(a) in paragraph (a), ‘a class E fine’ were substituted for ‘a class A fine’, and

(b) in paragraph (b), ‘€1,000’ were substituted for ‘€10,000’.

(7) Summary proceedings in relation to an offence under this section may be brought by the Minister for Communications, Energy and Natural Resources.

(8) In this section ‘determination’ means a determination of the Minister for Communications, Energy and Natural Resources made under section 28D or 28G.

Limitation of judicial review of determination

28J. (1) Leave shall not be granted for judicial review of a determination of the Minister for Communications, Energy and Natural Resources under section 28D or 28G unless—

(a) the application for leave to seek judicial review is brought by an undertaking involved in the media merger to which the determination relates,

(b) either—

(i) the application is made to the High Court not later than 40 working days from the date of the determination of the Minister for Communications, Energy and Natural Resources under section 28D or 28G, or

(ii) the High Court is satisfied that—

(I) there are substantial reasons why the application was not made within that period, and

(II) it is just in all the circumstances to grant leave, having regard to the interests of other affected persons and the public interest,

and

(c) the High Court is satisfied that the application raises a substantial issue for the High Court’s determination.

(2) The High Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the Minister for Communications, Energy and Natural Resources with such directions as the High Court thinks appropriate or necessary.

(3) The determination of the High Court of an application for leave to apply for judicial review, or an application for judicial review, is final and no appeal lies from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which shall only be granted if the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(4) Subsection (3) does not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

Fees

28K. (1) The Broadcasting Authority of Ireland may charge, receive and recover, for the costs incurred by it during a full media merger examination, such fees as it may, with the consent of the Minister for Communications, Energy and Natural Resources given with the approval of the Minister for Public Expenditure and Reform, from time to time determine.

(2) The fees determined under subsection (1) shall be paid by the undertakings that notified the media merger under section 28B in the time and manner specified by the Broadcasting Authority of Ireland, with the consent of the Minister for Communications, Energy and Natural Resources given with the approval of the Minister for Public Expenditure and Reform.

(3) The Broadcasting Authority of Ireland may provide for different fees in different circumstances or classes of circumstances or for different cases or classes of cases and for the manner in which fees are to be disposed of.

(4) The Broadcasting Authority of Ireland shall arrange for the publication on the internet of fees payable as soon as practicable after the fees have been determined under subsection (1).

(5) The Broadcasting Authority of Ireland may recover any amount due and owing to it under this section from the person by whom it is payable as a simple contract debt in any court of competent jurisdiction.

Guidelines

28L. (1) The Minister for Communications, Energy and Natural Resources may, from time to time, following consultation with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate, prepare and make guidelines on the general applicability of the relevant criteria to media mergers, including in particular:

(a) levels of media ownership including across different sectors of the media that would, subject to the particular circumstances of each media merger, be regarded as contrary to the public interest;

(b) indicators of diversity of content and of diversity of ownership and control of media businesses that would be used in determining whether a media merger would be regarded as contrary to the public interest;

(c) if appropriate, the manner in which he or she shall have regard to the adequacy of the following to protect the public interest in plurality of the media in the State:

(i) the scale and reach of RTÉ and TG4;

(ii) Part 6 of the Act of 2009;

(iii) the ownership and control policy of the Broadcasting Authority of Ireland for the time being in force;

(d) what will constitute significant interests within a sector or across different sectors of media businesses in the State for the purposes of paragraph (b) of the definition of ‘relevant criteria’ in section 28A(1);

(e) the nature of the proposed commitments that the undertakings involved in a merger may offer pursuant to section 28D(5) or section 28E(10) that could be incorporated as conditions in a determination by the Minister for Communications, Energy and Natural Resources under section 28D(1)(b) or section 28G(1)(c);

(f) the nature of the other conditions that may be imposed by the Minister for Communications, Energy and Natural Resources in a determination under section 28G(1)(c);

(g) such other matters regarding media mergers as the Minister for Communications, Energy and Natural Resources considers appropriate.

(2) The Minister for Communications, Energy and Natural Resources may, from time to time, following consultation with the Broadcasting Authority of Ireland and such other persons as he or she considers appropriate, prepare and make guidelines on the manner in which he or she shall carry out his or her functions under section 28H(2), including in particular, the factors he or she shall take into account in considering whether market conditions have substantially changed and, if they have so changed, the manner in which he or she shall review the conditions contained in a determination.

(3) Before making guidelines under subsection (1) or (2), the Minister for Communications, Energy and Natural Resources—

(a) shall publish on the internet a draft of the proposed guidelines and allow persons 30 working days from the date of publication to make written representations to him or her in relation to the draft guidelines, and

(b) may, having considered any representations received, make the guidelines, with or without modification.

(4) The guidelines shall be published by the Minister for Communications, Energy and Natural Resources on the internet in such form or manner as he or she thinks appropriate and the guidelines published shall specify the date from which they have effect.

Report and research

28M. (1) The Broadcasting Authority of Ireland shall, not later than one year from the date of the commencement of this section, and every 3 years thereafter, prepare a report which shall—

(a) describe the ownership and control arrangements for undertakings carrying on a media business in the State,

(b) describe the changes to the ownership and control arrangements of such undertakings over the previous 3 years, and

(c) analyse the effects of such changes on plurality of the media in the State,

and the Broadcasting Authority of Ireland shall furnish the report to the Minister for Communications, Energy and Natural Resources as soon as may be after it has been prepared.

(2) The Minister for Communications, Energy and Natural Resources shall, as soon as reasonably practicable after the report has been prepared, cause a copy of the report to be laid before each House of the Oireachtas.

(3) As soon as practicable after the report has been laid before each House of the Oireachtas, the Minister for Communications, Energy and Natural Resources shall publish it on the internet.

(4) The Broadcasting Authority of Ireland shall conduct periodic methodological research on matters relating to plurality of the media, which may include the development of appropriate measurement indices, and shall record in writing and publish the results of such research.

(5) The Broadcasting Authority of Ireland—

(a) may conduct such other research relating to plurality of the media that it considers necessary, and

(b) shall conduct such other research relating to plurality of the media as the Minister for Communications, Energy and Natural Resources may request,

and shall record in writing and publish the results of such research.

Sharing of information and documents and disclosure of confidential information

28N. (1) A person shall not disclose confidential information obtained by him or her while performing functions as—

(a) a member, an officer, or a member of the staff of, or an adviser or consultant to, the Broadcasting Authority of Ireland, or a member of the staff of such adviser or consultant, or

(b) a member of an advisory panel established under section 28F,

unless he or she is duly authorised by the Broadcasting Authority of Ireland to so do.

(2) Subsection (1) shall not operate to prohibit the disclosure of confidential information by a person referred to in that subsection to the Broadcasting Authority of Ireland, the advisory panel or to the Minister for Communications, Energy and Natural Resources in the circumstances referred to in subsection (3).

(3) The Minister for Communications, Energy and Natural Resources, the Broadcasting Authority of Ireland or an advisory panel established under section 28F may share information or documents with each other if satisfied that the information or documents are required by each other for the performance of functions under this Part.

(4) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.

(5) In this section—

‘confidential information’ includes—

(a) information that is expressed by the undertakings involved in the merger or acquisition to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) submissions of a commercially sensitive nature made by any other person;

‘public body’ means—

(a) a Department of State,

(b) the Garda Síochána,

(c) the Permanent Defence Force within the meaning of the Defence Act 1954,

(d) a local authority within the meaning of the Local Government Act 2001, or

(e) a body established by or under any enactment or charter other than the Companies Acts ;

‘submissions of a commercially sensitive nature’ means submissions the disclosure of which could reasonably be expected to—

(a) substantially and materially prejudice the commercial or industrial interests of—

(i) the person who made the submission,

(ii) the person to whom the submission relates, or

(iii) a class of persons in which a person referred to in subparagraph (i) or (ii) falls,

(b) substantially prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation, or

(c) substantially prejudice the financial position of the State or a public body.

Expenses in administration of Part

28O. The expenses incurred by the Minister for Communications, Energy and Natural Resources in the administration of this Part shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.”

75. Section 2 of the Act of 2007 is amended—

(a) by substituting the following definition for the definition of “authorised officer”:

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

(b) by substituting the following definition for the definition of “consumer”:

“ ‘consumer’ means a natural person (whether in the State or not) who is acting wholly or mainly for purposes unrelated to the person’s trade, business or profession;”,

(c) in the definition of “goods” by substituting the following paragraph for paragraph (e):

“(e) computer software, including content stored in a digital format or content stored electronically in a format which is not digital;”,

(d) by inserting the following definition:

“ ‘relevant statutory instruments’ means the statutory instruments for the time being in force specified in Schedule 9;”,

(e) in the definition of “relevant statutory provisions”—

(i) by inserting the following paragraph after paragraph (a):

“(aa) relevant statutory instruments;”,

(ii) by substituting “(j) the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013);” for “(i) the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013);”, and

(iii) by inserting the following paragraph after paragraph (j):

“(k) the European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014 (S.I. No. 250 of 2014).”,

(f) by substituting the following definition for the definition of “transactional decision”:

“ ‘transactional decision’ means, in relation to a consumer transaction, whether or not that transaction is completed, any decision by the consumer concerning whether, how or on what terms to do, or refrain from doing, any of the following:

(a) purchase the product;

(b) make payment in whole or in part for the product;

(c) retain or return the product after its purchase;

(d) dispose of the product;

(e) exercise a contractual right in relation to the product;”.

76. Chapter 1 of Part 2 of the Act of 2007 is amended by inserting the following sections after section 24E:

“Arrangements in relation to the collection of information relevant to levy collection

24F. (1) The Commission may, for the purpose of obtaining any information which may be required in relation to the calculation of levies to be imposed under section 24B require persons who are subject to such levies to provide the Commission within such reasonable period as the Commission may determine, with such information as the Commission may reasonably require in relation to the calculation of the amounts of the said levies.

(2) A person who—

(a) without reasonable excuse, fails to comply with a requirement under this section, or

(b) in purported compliance with such a requirement provides information that he or she knows to be false or misleading in a material respect,

commits an offence and is liable on summary conviction to the fines and penalties provided in section 79.

Arrangements for the secondment of certain employees

24G. (1) In this section—

‘Bank’ means the Central Bank of Ireland;

‘secondee’ means an employee seconded from the Bank to the Commission under the arrangements referred to in subsection (2).

(2) The Bank and the Commission may make arrangements for the secondment of employees from the Bank to the Commission for the purpose of carrying out the functions specified in section 10(3)(j) of the Competition and Consumer Protection Act 2014.

(3) The length of any secondment period or extension to an existing secondment period shall be agreed by the chairperson of the Commission, the Governor of the Bank and the employee of the Bank.

(4) Subject to subsection (6), a secondee may not later than 2 years after the establishment day elect to become a member of the staff of the Commission.

(5) A secondee may continue on secondment to the Commission for as long as the chairperson of the Commission and the Governor of the Bank consent. A secondee who continues on secondment without electing to become a member of staff of the Commission continues to be an employee of the Bank and his or her terms of employment (including any term conferring a right to an increase in remuneration) continue to be those applicable to his or her employment by the Bank.

(6) An election under subsection (4) to become a member of staff of the Commission is subject to the consent of—

(i) the chairperson of the Commission,

(ii) the Governor of the Bank,

(iii) the Minister for Public Expenditure and Reform, and

(iv) the Minister for Jobs, Enterprise and Innovation,

and shall take effect immediately after the latest of those consents is given.

(7) If a secondee elects to become a member of staff of the Commission, the terms and conditions relating to remuneration by the Commission at the time the election takes effect shall not be less favourable than the terms and conditions relating to remuneration at the time of his or her employment by the Bank (subject to any provision in any enactment).

(8) If a person’s employment is transferred under this section, the person’s previous service with the Bank is to be counted as service for the purposes of, but subject to any exceptions or exclusions in, the following Acts:

(a) the Redundancy Payments Acts 1967 to 2012;

(b) the Protection of Employees (Part-Time Work) Act 2001;

(c) the Protection of Employees (Fixed-Term Work) Act 2003;

(d) the Organisation of Working Time Act 1997;

(e) the Terms of Employment (Information) Acts 1994 to 2012;

(f) the Minimum Notice and Terms of Employment Acts 1973 to 2005;

(g) the Unfair Dismissals Acts 1977 to 2007;

(h) the Maternity Protection Acts 1994 and 2004;

(i) the Parental Leave Acts 1998 and 2006;

(j) the Adoptive Leave Acts 1995 and 2005;

(k) the Carer’s Leave Act 2001.”

77. Section 55 of the Act of 2007 is amended—

(a) in subsection (1) by substituting the following paragraph for paragraph (o):

“(o) undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the relevant State in which the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction;”,

and

(b) by deleting subsection (2).

78. Section 83 of the Act of 2007 is amended—

(a) in subsection (1) by substituting “If a person is charged with an offence under section 65(2) of this Act” for “If a person is indicted for an offence under this Act,”, and

(b) by deleting subsection (4).

79. Section 87 of the Act of 2007 is amended—

(a) in subsection (1), by deleting “and in good faith”, and

(b) in subsection (3), by deleting “and in good faith”.

80. Section 90 of the Act of 2007 is amended in paragraph (c) of subsection (1) by substituting “section 10(3)(i) of the Competition and Consumer Protection Act 2014” for “section 8(2)(m)”.

81. The Act of 2007 is amended by inserting the following Schedule after Schedule 8:

“SCHEDULE 9

Section 2

Relevant Statutory Instrument

”.

82. The Act of 2007 is amended—

(a) in section 24A, by substituting “ section 10(3)(j) of the Competition and Consumer Protection Act 2014” for “section 8(3)(ha)”,

(b) in subsection (2) of section 24B, by substituting “section 10(3)(j) of the Competition and Consumer Protection Act 2014” for “section 8(3)(ha)”, and

(c) in subsections (1) and (2) of section 24C by substituting “section 10(3)(j) of the Competition and Consumer Protection Act 2014” for “section 8(3)(ha)” in each place where it occurs.

83. The Act of 2007 is amended in Part 3 by inserting the following Chapter after Chapter 4:

“Chapter 5

Grocery Goods Undertakings

Interpretation

63A. In this Chapter—

‘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;

‘contravention notice’ has the meaning assigned to it by section 63D;

‘grocery goods’ means—

(a) any food or drink that is intended to be sold for human consumption and includes—

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

(ii) 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 that is intended to be sold by a retailer as such an additive, ingredient or processing aid, and

(iii) intoxicating liquors,

but does not include food or drink served or supplied on the premises of a grocery goods undertaking in the course of providing catering, restaurant or take-away services or any similar hospitality services, or intoxicating liquor served or supplied for consumption on the premises of a grocery goods undertaking,

(b) household cleaning products,

(c) toiletries, and

(d) garden plants and garden plant bulbs;

‘grocery goods undertaking’ means an undertaking that is engaged for gain in the production, supply, distribution, wholesale or retail of grocery goods, whether or not the undertaking is engaged in the direct sale of those goods to the public;

‘marketing costs’ means costs relating to the marketing of grocery goods, including costs relating to—

(a) visits to a supplier by employees or representatives of a retailer or wholesaler directly involved in the purchase of grocery goods,

(b) artwork or packaging design,

(c) consumer or marketing research,

(d) marketing consequent upon or related to the opening or refurbishment of a retail or wholesale premises, and

(e) hospitality for the staff or representatives of a retailer or wholesaler,

in relation to the goods concerned;

‘payment’ means any compensation, consideration, allowance or inducement in any form (monetary or otherwise) and includes more favourable contractual terms;

‘promotion’ means an offer for sale at an introductory or a reduced retail price or with some other benefit to consumers that is intended to subsist for a specified period;

‘relevant grocery goods undertaking’ means a grocery goods undertaking engaged in the production, supply, distribution, wholesale or retail of grocery goods in the State, that has, or is a member of a group of related undertakings that has, an annual worldwide turnover of more than €50 million;

‘related undertaking’, in relation to a person (the first-mentioned person), means—

(a) if the first-mentioned person is a company, another company that is related within the meaning of section 140(5) of the Companies Act 1990,

(b) a partnership of which the first-mentioned person is a member,

(c) if the businesses of the first-mentioned person and another person have been so carried on that the separate business of each of them, or a substantial part thereof, is not readily identifiable, that other person,

(d) if the decision as to how and by whom the businesses of the first- mentioned person and another person shall be managed can be made either by the same person or by the same group of persons acting in concert, that other person,

(e) a person who performs a specific and limited purpose by or in connection with the business of the first-mentioned person, or

(f) if provision is required to be made for the first-mentioned person and another person in any consolidated accounts compiled in accordance with the Seventh Council Directive 83/349/EEC of 13 June 1983², that other person;

‘retailer’ means a grocery goods undertaking that offers for sale, sells or resells grocery goods directly, or indirectly through franchise arrangements, to the public in the State;

‘shrinkage’ means losses that occur as a result of theft, loss or accounting error, after goods are delivered by a grocery goods undertaking to a retailer’s premises;

‘supplier’ means a grocery goods undertaking carrying on (or actively seeking to carry on) a business in the direct supply to any wholesaler or retailer of grocery goods for resale in the State, and includes any such undertaking whether located in the State or not;

‘wastage’ means grocery goods that become unfit for sale after their delivery by a grocery goods undertaking to a retailer or a wholesaler;

‘wholesaler’ means a grocery goods undertaking that purchases goods from a supplier for resale to a retailer.

Regulations in respect of grocery goods undertakings

63B. (1) Where the Minister considers it to be appropriate having regard to—

(a) the desirability of the promotion of competitive trade between grocery goods undertakings,

(b) the interests of consumers of grocery goods, in particular in relation to quality, value for money and access to choice,

(c) the importance of grocery goods undertakings conducting their trading relationships in good faith and in a fair, open and transparent manner,

(d) the importance of maintaining freedom of contract between grocery goods undertakings,

(e) the importance of providing grocery goods undertakings with reasonable certainty in respect of the risks and costs of trading,

(f) the economic importance to the State of the production, supply, distribution, wholesale and retail sectors in respect of grocery goods,

(g) the impact on the development and maintenance of strong, innovative, efficient and competitive production and supply bases in the grocery goods sector, and

(h) the impact on the development and maintenance of a competitive retail sector in respect of grocery goods,

he or she may, having consulted with the Commission and such other persons (including relevant grocery goods undertakings and other grocery goods undertakings) as he or she considers appropriate, make regulations in relation to particular aspects of the commercial relationships between relevant grocery goods undertakings and other grocery goods undertakings, in relation to the sale or supply of grocery goods.

(2) Notwithstanding the generality of subsection (1), regulations made under that subsection may—

(a) specify the form of contract to be entered into by a grocery goods undertaking for the sale or supply of grocery goods to, or the purchase or receipt of goods from, a relevant grocery goods undertaking,

(b) specify the ways in which a contract for the sale or supply of grocery goods referred to in paragraph (a) may be—

(i) varied,

(ii) terminated, or

(iii) renewed,

(c) specify the circumstances in which arrangements relating to the supply or delivery, including the frequency and timing in relation to the supply or delivery, of grocery goods may be varied,

(d) specify the manner in which certain terms and conditions are to be incorporated into contracts for the sale or supply of grocery goods referred to in paragraph (a), including terms and conditions in relation to—

(i) payment for grocery goods supplied to relevant grocery goods undertakings,

(ii) the ordering, supply, price, marketing and sale of goods on promotion and the duration of the promotion,

(iii) where a contract provides for payment arising from the negligence or fault of the supplier, the circumstances in which wastage that occurs at the premises of a relevant grocery goods undertaking is to be considered as due to the negligence or fault of the supplier, and

(iv) the circumstances and manner in which a relevant grocery goods undertaking may require a grocery goods undertaking to make any payment, either directly or indirectly, towards the resolution of a customer complaint,

(e) provide that a relevant grocery goods undertaking shall not enter into or renew any contract for the sale or supply of grocery goods referred to in paragraph (a) unless terms and conditions specified in regulations made under this section in relation to the following form part of the contract:

(i) the conditions under which a relevant grocery goods undertaking may, or may not, directly or indirectly require a supplier or retailer to obtain any goods or services from a third party from whom the relevant grocery goods undertaking receives payment for this arrangement;

(ii) the extent of the liability of a party to a contract for the sale or supply of grocery goods referred to in paragraph (a) for delays or failures in performance of the contract resulting from circumstances beyond the reasonable control of that party, and the actions that may or shall be taken by the parties to the contract in such circumstances,

(f) limit the circumstances in which a relevant grocery goods undertaking may seek payment from a grocery goods undertaking in respect of—

(i) shrinkage,

(ii) wastage, or

(iii) marketing costs,

(g) specify the circumstances in which a relevant grocery goods undertaking may, or may not, seek payment from a grocery goods undertaking for the purchase of grocery goods for resale by the relevant grocery goods undertaking from the grocery goods undertaking,

(h) provide for the manner in which forecasts for the supply of grocery goods are to be prepared and for the communication of the basis on which they are prepared,

(i) specify the circumstances in which a relevant grocery goods undertaking that is a retailer or wholesaler may, or may not, seek payment from a supplier to retain shelf space, or to secure better positioning on shelves, or an increase in the allocation of shelf space, for the grocery goods of that supplier,

(j) prohibit a relevant grocery goods undertaking from directly or indirectly compelling a grocery goods undertaking to make any payment or grant any allowance—

(i) in respect of a promotion of the grocery goods of a grocery goods undertaking in the premises of the relevant grocery goods undertaking,

(ii) for the advertising or display of the grocery goods of the grocery goods undertaking in the premises of the relevant grocery goods undertaking, or

(iii) to retain shelf space, or to secure better positioning on shelves, or an increase in the allocation of shelf space, for the grocery goods of that grocery goods undertaking,

(k) specify arrangements regarding promotions of grocery goods and related activities and the circumstances in which such arrangements shall be included in the contract for the sale or supply of grocery goods referred to in paragraph (a),

(l) provide for limitations on the obligation of grocery goods undertakings to participate in promotions by relevant grocery goods undertakings or similar activities in relation to grocery goods,

(m) prohibit a relevant grocery goods undertaking from requiring a grocery goods undertaking to obtain any goods or services from a third party from whom the relevant grocery goods undertaking receives payment for this arrangement,

(n) specify arrangements for the preparation by relevant grocery goods undertakings of an annual compliance report in respect of compliance with regulations made under this section, and for the submission of this report to the Commission,

(o) provide for the maintenance of records, and specify the records to be maintained, by relevant grocery goods undertakings in relation to the sale or supply of grocery goods to or from grocery goods undertakings,

(p) provide for the nature or type of information, documents or records that shall be maintained and kept by relevant grocery goods undertakings, and the length of time that such information, documents or records shall be kept,

(q) specify the manner and timeframe in which payments for grocery goods supplied to relevant grocery goods undertakings are to be made,

(r) provide for the designation and training of staff in relevant grocery goods undertakings to be responsible for compliance with any regulations made under this section and the dissemination of information in relation to the implementation of such regulations to other staff in the undertaking, and

(s) contain transitional provisions relating to the contracts for the sale or supply of grocery goods referred to in paragraph (a) to which the regulations, or different provisions of the regulations, will apply and any other relevant transitional provisions.

(3) Subject to this section, when making regulations under this section, the Minister may prescribe one or more classes (whether retailers, suppliers or wholesalers) of relevant grocery goods undertakings or grocery goods undertakings, or one or more classes of grocery goods, to which one or more of the regulations shall apply.

(4) Regulations under this section shall only apply to contracts entered into or renewed on or after the date on which the regulations come into operation.

(5) The Minister may, after he or she makes regulations under this section, and after consultation with the Commission and such other persons (including relevant grocery goods undertakings and other grocery goods undertakings) as he or she considers appropriate, prepare and make guidelines for the purpose of providing practical guidance as regards the operation of, and compliance with, this Chapter and any regulations made under this Chapter.

(6) Guidelines issued under subsection (5) shall—

(a) be published by the Minister in such manner as he or she considers appropriate,

(b) be published by the Commission in such manner as it considers appropriate, and

(c) be made available for inspection by any person free of charge during ordinary office hours at the principal office of the Commission.

Inspections and investigations by the Commission

63C. (1) The Commission may from time to time carry out such and so many inspections of relevant grocery goods undertakings as it considers necessary to monitor compliance with regulations under section 63B.

(2) In addition to carrying out inspections under subsection (1), the Commission may, where it has reasonable grounds to believe that a relevant grocery goods undertaking may be failing or may have failed to comply with regulations under section 63B, investigate any complaints it receives in relation to such an alleged failure.

(3) The Commission may decide not to investigate a complaint referred to in subsection (2), or to discontinue an investigation of a complaint, on the grounds that—

(a) the complaint is frivolous or vexatious or was not made in good faith,

(b) the subject-matter of the complaint is trivial,

(c) the conduct complained of occurred at too remote a time to justify investigation, or

(d) there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of.

(4) The Commission may make preliminary inquiries for the purpose of deciding whether a complaint should be investigated and may in writing request the complainant to provide further written particulars of the complaint within a period specified by the Commission in the request.

(5) The Commission may decide not to continue to investigate a complaint if the complainant fails to comply with a request for further written particulars within the time specified in the request under subsection (4).

(6) As soon as practicable after deciding not to investigate a complaint, or to discontinue an investigation of a complaint, the Commission shall inform the complainant in writing of the decision and the reasons for the decision.

Contravention notices

63D. (1) Where, on foot of an investigation carried out by the Commission under section 63C, the Commission is of the opinion that a relevant grocery goods undertaking is contravening or has contravened any provision of regulations made under section 63B that is stated in those regulations to be a penal provision, the Commission may instruct an authorised officer to serve, personally or by post, a notice (in this Chapter referred to as a ‘contravention notice’) on the relevant grocery goods undertaking.

(2) A contravention notice shall—

(a) state that the Commission is of the opinion that the relevant grocery goods undertaking is contravening or has contravened regulations under section 63B,

(b) state the reason for that opinion,

(c) identify the relevant penal provision of the regulations in respect of which that opinion is held,

(d) direct the relevant grocery goods undertaking to remedy the contravention by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made under subsection (6),

(e) include information regarding the making of an appeal under subsection (6),

(f) include any other requirement that the Commission considers appropriate, in order to remedy the contravention, and

(g) be signed and dated by a person duly authorised by the Commission to do so.

(3) A contravention notice may include directions—

(a) as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and

(b) to bring the notice to the attention of any person who may be affected by it.

(4) A relevant grocery goods undertaking on whom a contravention notice has been served who is of the opinion that the contravention notice has been complied with shall confirm in writing to the Commission that the matters referred to in the notice have been so remedied.

(5) Where a relevant grocery goods undertaking on whom a contravention notice has been served confirms in writing to the Commission in accordance with subsection (4) that the matters referred to in the contravention notice have been remedied, the Commission shall, on being satisfied that the matters have been so remedied, not later than one month from receipt of such confirmation, give notice to the relevant grocery goods undertaking concerned of compliance with the contravention notice.

(6) A relevant grocery goods undertaking on which a contravention notice has been served may, within 21 days beginning on the day on which the notice is served, appeal against the notice to a judge of the Circuit Court in the circuit court area in which the notice was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

(7) A relevant grocery goods undertaking who appeals under subsection (6) shall at the same time notify the Commission of the appeal and the grounds for the appeal and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(8) Where an appeal under subsection (6) is made, and the contravention notice is not cancelled, the notice as confirmed or varied shall take effect on the later of—

(a) the day next following the day on which the notice is confirmed or varied on appeal or the appeal is withdrawn, or

(b) the day specified in the notice.

(9) Where there is no appeal under subsection (6), the contravention notice shall take effect on the later of—

(a) the end of the period for making an appeal, or

(b) the day specified in the notice.

(10) The Commission may—

(a) withdraw a contravention notice at any time, or

(b) where no appeal is made or pending under subsection (6), extend the period specified under subsection (2)(d).

Enforcement

63E. (1) A relevant grocery goods undertaking that contravenes a requirement in a contravention notice commits an offence and is liable—

(a) on summary conviction, to the fines and penalties provided for in section 79, or

(b) on conviction on indictment, to the fines and penalties provided for in section 79.

(2) A relevant grocery goods undertaking that, without reasonable excuse, contravenes a provision of regulations under section 63B that is declared in the regulations to be a penal provision commits an offence and is liable—

(a) on summary conviction, to the fines and penalties provided for in section 79, or

(b) on conviction on indictment, to the fines and penalties provided for in section 79.

(3) Any person who is aggrieved in consequence of a relevant grocery goods undertaking’s failure to comply with any provision of regulations under section 63B or a contravention notice shall have a right of action under this subsection for relief against that relevant grocery goods undertaking.

(4) An action under subsection (3) may be brought in the Circuit Court.

(5) Any relief by way of damages, including exemplary damages, for an action under subsection (3) 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.”

84. Section 86 of the Act of 2007 is amended by substituting “Subject to section 86A(4), the Commission”, for “The Agency”.

85. The Act of 2007 is amended in Part 5 by inserting the following Chapter after Chapter 6:

“Chapter 6A

Publication of Names (Grocery Goods Undertakings List)

Commission may publish certain information in respect of grocery goods undertakings

86A. (1) The Commission shall keep and maintain a list (the ‘grocery goods undertakings list’) of names and addresses of the following persons, together with a description of their trade, business or profession and the particulars described in subsection (2):

(a) any person on whom a fine or other penalty was imposed by a court by or under Chapter 5 of Part 3;

(b) any person against whom a contravention notice takes effect under section 63D(8) or (9).

(2) The grocery goods undertakings list shall specify, in relation to each person named in the list, any particulars the Commission considers appropriate in respect of the following:

(a) the matter occasioning any fine or penalty imposed on the person by the court and the amount or nature of that fine or penalty;

(b) the matter occasioning any order made by the court against the person and the nature of that order;

(c) the matter occasioning any contravention notice served on the person under this Act.

(3) The Commission may, at any time and in any form or manner the Commission considers appropriate, publish or cause to be published all or any part of the grocery goods undertakings list.

(4) An entry in the grocery goods undertakings list in relation to a person referred to in paragraph (a) or (b) of subsection (1) shall not be included in the consumer protection list under section 86.”

86. (1) Where, in proceedings under Chapter 5 (inserted by section 83) of Part 3 of the Act of 2007, a court finds, as part of a final decision in relation to the matters to which those proceedings relate, that a relevant grocery goods undertaking contravened—

(a) a provision of regulations made under section 63B of that Act, or

(b) a requirement in a contravention notice,

then, for the purposes of any subsequent proceedings (other than proceedings for an offence) under that Chapter, the finding shall be res judicata (whether or not the parties to the said subsequent proceedings are the same as the parties to the first- mentioned proceedings).

(2) In this section—

“contravention notice” has the same meaning as it has in Chapter 5 of Part 3 of the Act of 2007;

“finding” includes a conviction for an offence, whether or not that conviction is consequent upon a plea of guilty by an accused person;

“relevant grocery goods undertaking” has the same meaning as it has in Chapter 5 of Part 3 of the Act of 2007.

87. The Central Bank Act 1942 is amended—

(a) in section 2, by deleting the definition of “Agency”,

(b) in section 5A, (amended by section 14 of the Central Bank Reform Act 2010)—

(i) by substituting “the Competition and Consumer Protection Commission” for “the Agency” in each place where it occurs,

(ii) by substituting the following subsection for subsection (5):

“(5) The functions of the Competition and Consumer Protection Commission referred to in subsection (4) are the following functions, namely, functions under—

(a) subsections (1), (5), (6) and (8) of section 10 of the Competition and Consumer Protection Act 2014 in relation to—

(i) sections 41 to 56 (other than section 50) of the Consumer Protection Act 2007, and

(ii) the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and 2000,

(b) sections 34, 35 and 36 of the Competition and Consumer Protection Act 2014, and

(c) sections 71, 72, 73, 75, 81, 82, 84, 86, 88 and 90 of the Consumer Protection Act 2007.”,

(iii) in subsection (6), by inserting “and the Competition and Consumer Protection Act 2014” after “Consumer Protection Act 2007”,

(iv) in subsection (7)(a), by substituting “under section 19 of the Competition and Consumer Protection Act 2014” for “under section 21 of the Consumer Protection Act 2007”,

(v) in subsection (9), by inserting “or the Competition and Consumer Protection Act 2014” after “Consumer Protection Act 2007” and by substituting “under section 19 of the Competition and Consumer Protection Act 2014” for “under section 21 of that Act”,

(c) in section 5C (inserted by section 14 of the Central Bank Reform Act 2010), by substituting the following subsection for subsection (3):

“(3) Subject to section 33AK, if the Competition and Consumer Protection Commission is of the opinion that information obtained by the Bank pursuant to subsections (1) and (2) is relevant to the exercise of that Commission’s functions under section 10(3)(j) of the Competition and Consumer Protection Act 2014, the Bank shall provide the requested information to the Commission at the Commission’s request.”,

(d) in section 33AK—

(i) in subsection (3)(a), by deleting paragraph (iva), and

(ii) in subsection (5), by substituting the following paragraph for paragraph (al):

“(al) to the Competition and Consumer Protection Commission, if the confidential information is required for the performance of the Commission’s functions, or”,

(e) in section 61E, by deleting paragraph (d) of subsection (1),

(f) in section 61H, by substituting the following paragraph for paragraph (c) of subsection (4):

“(c) the Competition and Consumer Protection Commission;”,

and

(g) in Part 1 of Schedule 2, by inserting the following item after item 42:

“

”.

88. Section 56 of the Personal Injuries Assessment Board Act 2003 is amended by substituting the following subsection for subsection (6):

“(6) The chief executive, and a person nominated for such appointment by the chairperson of the Competition and Consumer Protection Commission, shall each be a member of the Board.”

89. The Communications (Retention of Data) Act 2011 is amended—

(a) in section 1, by inserting the following definition:

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

(b) in section 6—

(i) by inserting the following subsection after subsection (3):

“(3A) A member of the Competition and Consumer Protection Commission may request a service provider to disclose to that member data retained by the service provider in accordance with section 3 where that member is satisfied that the data are required for the prevention, detection, investigation or prosecution of a competition offence.”,

and

(ii) in subsection (4), by substituting “subsection (1), (2), (3) or (3A)” for “subsection (1), (2) or (3) ”,

(c) in section 9—

(i) by inserting the following subsection after subsection (3):

“(3A) The Competition and Consumer Protection Commission shall prepare and submit a report to the Minister for Jobs, Enterprise and Innovation in respect of data specified in Schedule 2 that were the subject of all disclosure requests made under section 6(3A) during the relevant period.”,

(ii) in subsection (4), by substituting “subsection (1), (2), (3) or (3A)” for “subsection (1), (2) or (3) ”,

(iii) by inserting the following subsection after subsection (7):

“(7A) The Minister for Jobs, Enterprise and Innovation shall review the report submitted under subsection (3A) and shall forward it to the Minister, along with any comments that he or she may have with respect to it.”,

and

(iv) in subsection (8), by substituting “subsections (6), (7) and (7A)” for “subsection (6) and (7) ”,

(d) in section 10, by substituting the following paragraph for paragraph (a) of subsection (5):

“(a) direct An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners or the Competition and Consumer Protection Commission to destroy the relevant data and any copies of the data,”,

and

(e) in section 12, by substituting the following paragraph for paragraph (b) of subsection (1):

“(b) ascertain whether An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners and the Competition and Consumer Protection Commission are complying with its provisions, and”.

90. Schedule 1 to the Criminal Justice Act 2011 is amended by inserting the following paragraph after paragraph 30:

“Competition offence

31. An offence under section 6 of the Competition Act 2002, that is an offence involving an agreement, decision or concerted practice to which subsection (2) of that section applies.”

91. The European Communities (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008) are amended—

(a) in Regulation 10(2)(c), by inserting the following clause after clause (i):

“(ia) a determination by the Minister for Communications, Energy and Natural Resources under section 28D(1)(a) or (b) or section 28G(1)(a) or (c) (inserted by section 74 of the Competition and Consumer Protection Act 2014) of the Competition Act 2002”,

and

(b) in Regulation 16(1), by substituting the following paragraph for paragraph (d):

“(d) the relevant period referred to in section 19(1)(d) of that Act has elapsed without the Competition and Consumer Protection Commission having made a determination under section 22 of that Act in relation to the merger or acquisition.”