37. F15[(1) For the purpose of—

(a) obtaining any information which may be required in relation to a matter under investigation under the Act of 2002 or Article 101 or 102 of the Treaty on the Functioning of the European Union,

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

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

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

an authorised officer may, on production of a warrant issued under subsection (3) or (3A) authorising him or her to exercise one or more specified powers under subsection (2), exercise that power or those powers,]

(2) The powers mentioned in subsection (1) are the following:

F15[(a) to enter, if necessary by reasonable force, and search—

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

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

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

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

F15[(c) to seize and retain any books, documents, records, computers or any other storage medium in which any record is kept relating to an activity found at anyplace referred to in paragraph (a) or (b) and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents, records, computers or media including—

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

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

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

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

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

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

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

(g) to require a person mentioned in paragraph (d) to give to the authorised officer any other information which the officer may reasonably require in regard to the activity referred to in F15[paragraph (a);]

F16[(h) to require any person who appears to the authorised officer to be in a position to facilitate access to documents or records stored in any data equipment or computer, or which can be accessed by the use of that data equipment or computer, to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by—

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

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

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

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

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

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

(3) F15[Subject to subsection (3A), if a judge] of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of F15[an offence under the Act of 2002, or an infringement, whether or not the infringement is criminal in nature, of relevant competition law, within the meaning of the Act of 2002,] is to be found in any place, the judge may issue a warrant authorising an authorised officer (accompanied by such other authorised officers or members of An Garda Síochána or both as provided for in subsection (5) of section 35) at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under this section.

F16[(3A) Where an authorised officer provides information on oath to a judge of the District Court for the purpose of a warrant being issued in relation to an inspection referred to in subsection (1)(d)—

(a) the information on oath so provided shall include—

(i) a statement to the effect that the information on oath is being provided in relation to an inspection referred to in subsection (1)(d), and

(ii) sufficient information to allow the judge of the District Court to discharge his or her functions under the Regulation of 2003,

(b) before issuing the warrant, the judge of the District Court shall—

(i) where the warrant would, if issued, authorise the authorised officer to exercise powers under subsection (2) in relation to any place or land other than that referred to in subparagraph (ii), including the home or private vehicle of a director, manager or any member of staff of an undertaking, have regard to the matters referred to in Article 21(3) of the Regulation of2003, and

(ii) where the warrant would, if issued, authorise the authorised officer to exercise powers under subsection (2) in relation to any place or land of an undertaking or association of undertakings, have regard to the matters referred to in Article 20(8) of the Regulation of 2003,

and

(c) the judge of the District Court, shall, where he or she is satisfied as regards the matters referred to in Article 20(8) or 21(3) of the Regulation of 2003, as the case may be, issue a warrant authorising an authorised officer (accompanied by such other authorised officers or members of the Garda Síochána or both as provided for in subsection (5) of section 35) at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place or land using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer under this section.]

(4) The reference in subsection (3) to an offence under the Act of 2002 shall, for the purposes of this section, be deemed to include a reference to the taking by the Commission of proceedings (whether civil or criminal), and the taking of proceedings by the Director of Public Prosecutions, in relation to any contravention of an enactment repealed by section 48 of the Act of 2002 that the Commission suspects has occurred.

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

(6) An authorised officer who attends at, and participates in, the questioning of a person in accordance with subsection (5) may not commit any act or make any omission which, if committed or made by a member of An Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984.

(7) An act committed or omission made by an authorised officer who attends at, and participates in, the questioning of a person in accordance with subsection (6) which, if committed or made by a member of An Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984 shall not of itself render the authorised officer liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her.

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

(9) A recording referred to in subsection (8) of the questioning of a person shall not be given to the person by An Garda Síochána except in accordance with a direction or order of a court made under that subsection or otherwise.

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

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

(b) a transcript of such a recording,

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

(11) Any statement made by the person concerned that is recorded in a recording which is admitted in evidence under subsection (10) may be admissible in evidence at the trial concerned notwithstanding the fact that—

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

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

or both.

(12) Subsections (10) and (11) shall not affect the admissibility in evidence at the trial of a person in respect of an offence of any statement that is recorded in writing made by the person during questioning by a member of An Garda Síochána or authorised officer at a Garda Síochána station or elsewhere in connection with the investigation of the offence (whether or not that statement is signed by the person) and irrespective of whether the making of that statement is recorded by electronic or similar means.

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

(14) In this section “recording” means a recording on tape of—

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

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

or both.