Competition and Consumer Protection Act 2014

Media Mergers

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);

(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,

(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

(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—

(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,

(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

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,

(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

(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

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,

(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

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.”

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