(5)(a) Where an adjudication officer has decided to impose a periodic penalty payment under section 15X on or before the date, or within the period, specified in a notice issued under paragraph (a) or (b) of subsection (2), an adjudication officer shall determine the periodic penalty payment to be imposed on the undertaking or association of undertakings concerned and shall impose such periodic penalty payment on such undertaking or association of undertakings under section 15X(2)(b)(iii). (b) The definitive amount of the periodic penalty payment shall be calculated from the date on which the period specified in the notice issued under paragraph (a) or (b) of subsection (2) expired until the date on which the adjudication officer is satisfied that the relevant obligation was complied with by the undertaking. (c) An adjudication officer may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the notice issued under subsection (2).
\n
(6)The imposition of a periodic penalty payment under this section is without prejudice to— (a) the imposition of administrative financial sanctions for— (i) a breach of a procedural requirement, (ii) a failure to comply with commitments entered into under section 15AE, (iii) a failure to comply with a structural or behavioural remedy, or (iv) a failure to comply with a prohibition notice, (b) the imposition of a structural or behavioural remedy under section 15X in accordance with section 15Z, or (c) issuing a prohibition notice issued under section 15H.
\n
(7)A decision to impose an Article 16(2) periodic penalty payment or a hearing requirement periodic penalty payment shall not take effect unless the decision is confirmed by the High Court under section 15AY or section 15AZ.
\n
(8)In this section— ‘Article 16(1) periodic penalty payment’ means a periodic penalty payment imposed, in whole or in part, for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to in subsection (1)(a)(ii) and (iii); ‘Article 16(2) periodic penalty payment’ means a periodic penalty payment imposed for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to in subsection (1)(a)(i) and (iv) to (vi); ‘hearing requirement periodic penalty payment’ means a periodic penalty payment imposed under subsection (1)(b)(i).
\n
Commitments 15AE. (1) At any time during an investigation carried out by the competent authority into suspected or alleged infringements of relevant competition law, including at any time prior to a decision being made in criminal or civil proceedings (including proceedings under Parts 2C to 2H) under this Act, the undertaking or association of undertakings to which the investigation relates may, in writing, propose to the competent authority measures appropriately addressing the suspected or alleged infringement.
\n
(2)Where the competent authority receives a proposal under subsection (1), it may— (a) consult to the extent that it sees fit in relation to the proposal, including consulting publicly or consulting undertakings, or other persons participating in the market or markets concerned, (b) where it is of the opinion that it requires further information in order to consider the proposal, by notice in writing served on the undertaking or association of undertakings that made the proposal, require the undertaking or association of undertakings to give to it within a specified period specified information, and (c) where it considers it necessary to do so, at any time before the proposal is made subject to a commitment agreement under this section, propose to the undertaking or association of undertakings modifications, alterations, additions or other changes to the proposal.
\n
(3)Where the competent authority— (a) has complied with the requirements of subsection (4), and (b) is satisfied that the terms of the proposal (subject to any modifications, alterations, additions or other changes made to the proposal under subsection (2))— (i) appropriately address the matters to which the investigation relates or any findings resulting from the investigation, and (ii) are clear and unambiguous and capable of being complied with, it may notify the undertaking or association of undertakings in writing that the proposal is agreed by the competent authority.
\n
(4)Before notifying an undertaking or association of undertakings under subsection (3), the competent authority shall inform the undertaking or association of undertakings— (a) that the undertaking or association of undertakings is entitled to obtain legal advice on the terms of the proposal, and (b) that failure to comply with the commitments may result in legal consequences for the undertaking or association of undertakings, including the imposition of administrative financial sanctions under section 15AA.
\n
(5)Where the undertaking or association of undertakings in receipt of a notification under subsection (3) consents to the terms of the proposal as agreed by the competent authority, it shall notify the competent authority of that fact.
\n
(6)Where a proposal has been consented to by an undertaking or association of undertakings under subsection (5) and an agreement (in this section referred to as a ‘commitment agreement’) in respect of such proposal has been entered into by that undertaking or association of undertakings and the competent authority, the commitment agreement shall (save where such publication would, in the opinion of the competent authority, prejudice the achievement of the objectives of this Act) be published on a website maintained by or on behalf of the relevant Minister or by the competent authority, with due regard for the protection of commercially sensitive information, as soon as practicable after the commitment agreement has been signed by the undertaking or association of undertakings and the competent authority.
\n
(7)A commitment agreement shall be binding on an undertaking or association of undertakings entering into it for the period beginning on the date specified in the commitment agreement and ending on the date specified in the commitment agreement.
\n
(8)Subject to subsection (9), the competent authority shall not, during the period for which a commitment agreement is binding on an undertaking or association of undertakings and in respect of the matters addressed in the commitment agreement— (a) issue a prohibition notice to the undertaking or association of undertakings, (b) refer the matter for decision by an adjudication officer under section 15M, or (c) continue any proceedings under this Act (whether criminal or civil proceedings, including proceedings under Parts 2C to 2H) that are already in progress against the undertaking or association of undertakings, other than where the competent authority has formed a preliminary view, or an adjudication officer has decided, that the undertaking or association of undertakings has failed to comply with the commitment agreement.
\n
(9)The competent authority may, notwithstanding subsection (7)— (a) amend or terminate a commitment agreement where the undertaking or association of undertakings that has entered into the commitment agreement has consented to such amendment or termination and the competent authority is satisfied that there has been a material change to the facts on which the commitment agreement was based, (b) terminate a commitment agreement where the circumstances of the undertaking or association of undertakings, or of the market in which the undertaking or association of undertakings operates, mean that the commitment agreement is no longer necessary, (c) terminate a commitment agreement where the undertaking or association of undertakings concerned has acted contrary to the terms of the commitment agreement, or (d) terminate a commitment agreement where an undertaking or association of undertakings which has entered into a commitment agreement has submitted information to the competent authority in connection with a proposal or commitment agreement under this section that is false, incomplete, incorrect or misleading in a material respect.
\n
(10)The competent authority may monitor and review commitments, conditions or other terms contained in a commitment agreement.
\n
Guidelines 15AF. (1) The competent authority may, subject to this Act and any regulations made thereunder, and having regard to the fairness and efficiency of the procedures under this Part, Part 2C, Part 2E and Part 2G, prepare and make guidelines with respect to any matter provided for in or under this Part or Part 2C, 2E or 2G, including in relation to— (a) the conduct of oral hearings, (b) the imposition of administrative sanctions (including the factors applicable to any order or administrative financial sanction to be imposed under section 15X and the method of calculation of administrative financial sanctions and periodic penalty payments), (c) the conduct of investigations, (d) the general policies of the competent authority, and (e) any matter prescribed by the relevant Minister under this Part, Part 2C, Part 2E or Part 2G.
\n
(2)In making a decision under section 15X, an adjudication officer shall— (a) have regard to guidelines, if any, made and published by the competent authority under subsection (1), and (b) apply guidelines made and published by the competent authority under paragraph (a) and (b) of subsection (1) unless the adjudication officer considers that, having regard to all the circumstances of the case, there is a reason not to do so.
\n
(3)The competent authority may amend or revoke guidelines made under subsection (1).
\n
(4)The competent authority shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on a website maintained by it or on its behalf.
\n
(5)The competent authorities may make guidelines under this section jointly or separately.
\n
Conduct of investigations 15AG. Subject to this Part and Part 2C, any rules made under section 15V(14) and any guidelines made under section 15AF, competent authorities and authorised officers may follow such procedures for the conduct of an investigation as they consider appropriate.
\n
PART 2E Leniency programme Definitions (Part 2E) 15AH. In this Part— ‘applicant’ means an undertaking that submits a leniency statement under this Part; ‘competent prosecuting authority’ means— (a) in respect of civil proceedings under this Act, including proceedings under Parts 2C to 2H, the competent authority, (b) in respect of criminal proceedings in respect of an infringement of relevant competition law tried on indictment in accordance with section 8, the Director of Public Prosecutions, or (c) in respect of criminal proceedings in respect of an infringement of relevant competition law tried summarily in accordance with section 8, the competent authority or the Director of Public Prosecutions, as the case may be; ‘immunity from administrative financial sanctions’ means an exemption granted by a competent authority, in accordance with a leniency programme, from an administrative financial sanction that would otherwise be imposed on an undertaking for its participation in a cartel; ‘leniency’ includes immunity from administrative financial sanctions and a reduction in administrative financial sanctions; ‘marker’ has the meaning it has in section 15AM.
\n
Immunity from administrative financial sanctions 15AI. (1) Each competent authority shall put in place a programme (in this Part referred to as a ‘leniency programme’) enabling it to grant leniency to undertakings in exchange for— (a) disclosing their participation in a cartel, and (b) voluntarily cooperating, independently of the other undertakings involved in the cartel, with an investigation of the competent authority concerning the application of relevant competition law.
\n
(2)Each competent authority shall prepare a policy as to how it will operate its leniency programme, which policy may include different policies or approaches in respect of different sectors or economic activities.
\n
(3)The leniency programme may also address the approach of the competent authority when exercising its power to grant leniency in respect of other infringements of relevant competition law.
\n
(4)Each competent authority shall publish its leniency programme by placing a notice in relation to it, together with the entire text of the programme, on a website maintained by or on behalf of the competent authority.
\n
(5)A competent authority may grant an undertaking immunity from any administrative financial sanction which would otherwise have been imposed provided that— (a) the undertaking discloses to the competent authority the fact of its participation in the cartel concerned, together with all the details thereof, in accordance with section 15AK(1)(b), (b) the undertaking is the first undertaking in an alleged cartel to submit evidence to the competent authority which— (i) in the view of the competent authority at the time it evaluates the application for immunity from administrative financial sanctions, will enable the competent authority to carry out searches in connection with an alleged cartel, provided that the competent authority did not at the time of the application, already have sufficient evidence to carry out such a search or sufficient evidence to seek a warrant for such a search or had not already carried out a search in connection with the alleged cartel, or (ii) in the view of the competent authority, is sufficient to ground a finding of an infringement of relevant competition law covered by the leniency programme, provided that the competent authority did not have in its possession sufficient evidence to find such an infringement and that no other undertaking previously qualified for immunity from administrative financial sanctions in relation to the same cartel, (c) the conditions for leniency set out in section 15AK are satisfied, (d) the undertaking has not taken steps to coerce other undertakings to join a cartel or to remain in it, (e) the undertaking provides the competent authority with any information reasonably required by the competent authority, and (f) the other competent authority has not already granted the undertaking immunity in respect of the same matter or conduct.
\n
(6)(a) A competent authority may decide to grant an undertaking immunity from administrative financial sanctions conditional on it fulfilling the conditions in this Part. (b) The competent authority shall notify the undertaking of a decision made under paragraph (a). (c) Where the competent authority notifies an undertaking that it has been granted conditional immunity from administrative financial sanctions under paragraph (a), the undertaking shall be informed of the period it has to fulfil the conditions concerned.
\n
(7)The competent authority shall, where it is requested to do so by the applicant, notify a decision under subsection (5) to the applicant in writing.
\n
(8)An applicant, after it is notified that a decision was made under subsection (6)(a) not to grant it immunity from administrative financial sanctions, may request the competent authority concerned to consider its application as an application for reduction of administrative financial sanctions under section 15AJ.
\n
(9)(a) The Commission and the Commission for Communications Regulation may, to the extent required for the purposes of this Part— (i) cooperate, including by sharing information and evidence between them, in relation to a leniency statement submitted to either one of them, (ii) co-ordinate their leniency programmes, in whole or in part, (iii) take steps to agree procedures, or align their respective policies, as to how such programmes shall operate, (iv) agree that either the Commission or the Commission for Communications Regulation, but not both, shall— (I) assess a particular leniency statement, or a class of leniency statements, and (II) decide whether to grant leniency to a particular applicant or to any other members of the alleged cartel of which the applicant is allegedly part, (v) transfer a leniency statement, and all supporting documents or material relating to the statement, received by one competent authority under this Part to the other competent authority in order to allow the second-mentioned competent authority to assess the leniency statement, and (vi) conclude cooperation agreements that will— (I) facilitate the performance of their respective functions under this Part and in particular the assessment of leniency applications, and (II) if necessary, provide for procedures for the transfer of leniency statements received by one competent authority under this Part to the other competent authority. (b) An agreement made under paragraph (a)(iv) shall be published, on a website maintained by them or on their behalf, by the Commission or the Commission for Communications Regulation or both.
\n
Reduction of administrative financial sanctions 15AJ. (1) Undertakings that do not qualify for immunity from administrative financial sanctions under section 15AI may be granted a reduction, in accordance with this section, of any administrative financial sanction that would otherwise have been imposed conditional on the undertaking fulfilling the conditions in this Part.
\n
(2)A competent authority shall include in the leniency programme provision for reducing the amount of an administrative financial sanction that would otherwise be imposed on an undertaking that does not qualify for immunity from administrative financial sanctions for its participation in a cartel, in exchange for, or in order to acknowledge, its cooperation with a competent authority under the leniency programme.
\n
(3)Where a competent authority determines that an undertaking is entitled to a reduction of an administrative financial sanction, the adjudication officer and the High Court shall apply the reduction determined by the competent authority to the administrative financial sanction imposed by a decision under section 15X and confirmed by the Court, and the decision of the competent authority as to whether the conditions for the reduction of an administrative financial sanction under subsection (5) are satisfied may not be impugned by the adjudication officer or Court.
\n
(4)The competent authority shall publish, on a website maintained by it or on its behalf, its leniency programme allowing for a reduction of administrative financial sanctions.
\n
(5)In order to qualify for a reduction of administrative financial sanctions, an undertaking shall— (a) disclose its participation in the cartel, (b) provide the competent authority with evidence of the alleged cartel which, in the view of the competent authority, represents significant added value relative to the evidence already in the possession of the competent authority at the time of the application, and (c) otherwise satisfy the requirements set out in section 15AK.
\n
(6)If an undertaking that has applied for a reduction of an administrative financial sanction submits compelling evidence which the competent authority uses to establish additional facts which lead to an increase of the amount of the administrative financial sanction imposed on other undertakings or associations of undertakings, such additional facts shall not be taken into account by an adjudication officer when setting the amount of any administrative financial sanction to be imposed on the undertaking that provided this evidence.
\n
(7)In order to determine the appropriate level of reduction of the administrative financial sanction, the competent authority shall take into account— (a) the time at which the evidence was submitted (including the placing of the applicant in the chronological order of undertakings to apply for leniency), and (b) the assessment of the competent authority as to the overall value added to its investigation by that evidence.
\n
(8)Reductions granted to an applicant under this section shall not exceed 50 per cent of the administrative financial sanction which would otherwise have been imposed.
\n
(9)If the competent authority finds that one or more of the conditions specified in subsection (5) has not been fulfilled, the undertaking shall not benefit from any favourable treatment under this programme in respect of the same cartel.
\n
(10)(a) In this Part, the ‘significant added value’ of evidence shall be assessed by the competent authority in terms of the extent to which the evidence provided to the competent authority strengthens, by its nature or in its level of detail, the ability of the competent authority to prove the existence of the alleged cartel. (b) The competent authority may publish, on a website maintained by it or on its behalf, guidelines on the assessment of the ‘significant added value’ of evidence and on the concept of ‘compelling evidence’ under subsection (6).
\n
General conditions for leniency 15AK. (1) In order to qualify for leniency for participation in a cartel an undertaking that has applied to the competent authority for leniency shall— (a) end its involvement in the alleged cartel at the latest immediately following the submission of its leniency statement, except in cases where a delay would, in the view of the competent authority, be reasonably necessary to preserve the integrity of its investigation, (b) cooperate genuinely, fully, and on a continuous basis and expeditiously with the competent authority from the time of its application until the competent authority has closed its enforcement proceedings against all parties under investigation by reason of a decision under section 15X or has otherwise terminated its enforcement proceedings (including continuing to so cooperate where required until the determination of any subsequent proceedings under Part 2H), and such cooperation includes the following: (i) providing the competent authority promptly with all relevant information and evidence relating to the alleged cartel that comes into the applicant’s possession or is accessible to it, in particular— (I) the name and address of the applicant, (II) the names of all other undertakings that participate or participated in the alleged cartel, (III) a detailed description of the alleged cartel, including the affected goods or services, the affected territories, the duration, and the nature of the alleged cartel conduct, (IV) evidence of the alleged cartel in its possession or under its control (in particular any contemporaneous evidence), and (V) information on any past or possible future leniency statements made to any other competent authorities, competition authorities of member states, the European Commission, or competition authorities of third countries in relation to the alleged cartel; (ii) remaining at the disposal of the competent authority to promptly reply to any requests that may contribute to the establishment of the relevant facts; (iii) making current directors, managers and other members of staff available for interviews with the competent authority and making reasonable efforts to make former directors, managers and other members of staff available for interviews with the competent authority; (iv) not destroying, falsifying or concealing relevant information or evidence; (v) unless and to the extent otherwise explicitly authorised by the competent authority, not disclosing the fact of, or any of the content of, its leniency statement before the competent authority has issued a statement of objections in the enforcement proceedings before it,
\n
and (c) not have— (i) destroyed, falsified or concealed evidence which falls within the scope of the application, or (ii) disclosed, directly or indirectly, the fact of, or any of the content of the application it is contemplating except to other competent authorities or any competition authorities of member states or the European Commission or competition authorities of third countries.
\n
(2)The competent authority shall, where it is requested to do so by the applicant, communicate a decision in relation to a leniency statement under section 15AI or 15AJ to the applicant in writing.
\n
(3)An undertaking that fails to satisfy all of the requirements specified in subsection (1) shall not be eligible for leniency under section 15AI or 15AJ.
\n
(4)Where a competent authority accedes to an application for leniency under section 15AI or 15AJ, such grant of leniency may be withdrawn where evidence is subsequently obtained by the competent authority which establishes that the undertaking concerned did not satisfy each of the conditions for leniency specified in subsection (1).
\n
(5)Where a competent authority deems that an applicant for leniency does not satisfy each of the conditions for leniency laid down in subsection (1), or withdraws a grant of leniency pursuant to subsection (4), a competent authority may initiate whatever proceedings against the undertaking concerned as the competent authority deems fit.
\n
(6)An undertaking, and the servants or agents of an undertaking, shall be guilty of an offence where, in the context of an application for immunity from administrative financial sanctions under section 15AI, or reduction of administrative financial sanctions under section 15AJ, or a summary application for leniency under section 15AN, it intentionally or negligently— (a) provides the competent authority with information that is false or misleading in a material respect, or (b) fails to comply with the obligation in subsection (1)(b)(iv).
\n
(7)An undertaking or other person guilty of an offence under this section is liable— (a) on summary conviction— (i) in the case of an undertaking that is not an individual, to a class A fine, or (ii) in the case of an individual, to a class A fine and to imprisonment for a term not exceeding 6 months, or to both, or (b) on conviction on indictment— (i) in the case of an undertaking that is not an individual, to a fine not exceeding whichever of the following amounts is the greater, €250,000 or 10 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or (ii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely €250,000 or 10 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 5 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.
\n
(8)The competent authority may publish, on a website maintained by it or on its behalf, guidance as to applications for leniency including the procedures applicable to and appropriate scales for decisions by a competent authority to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings that cooperate with the investigation of a competent authority in respect of any infringement of relevant competition law.
\n
(9)The relevant Minister may make regulations setting out further details or conditions for the grant of leniency from administrative financial sanction.
\n
Form of leniency statements 15AL. (1) An undertaking may apply for leniency by submitting to the competent authority, whether orally or in writing, a statement (in this Part referred to as a ‘leniency statement’) describing the role the applicant had in, and knowledge the applicant had regarding, a cartel.
\n
(2)The precise form of applications for leniency shall be set out in guidelines published by the competent authorities, on a website maintained by them or on their behalf.
\n
(3)A leniency statement, whether or not it has been withdrawn, shall not be admissible in evidence in proceedings under this Act or otherwise, save in accordance with section 15AM(4).
\n
Markers for applications for leniency from administrative financial sanctions 15AM. (1) Protection (in this section referred to as a ‘marker’) may be afforded to an applicant for leniency under section 15AI or 15AJ by, and at the discretion of, the competent authority for a specified period whereby the applicant is given time to gather necessary information and evidence in order to meet the relevant evidential threshold for leniency, in consequence of which the applicant retains his or her place in the queue of applicants for leniency determined by valid chronological application.
\n
(2)(a) An undertaking that intends to make an application for immunity may apply to a competent authority for a marker. (b) To be eligible to secure a marker, either when the application for a marker is made or within a period granted by the competent authority upon request of the applicant (which period may be extended by the competent authority), the applicant shall provide the competent authority with its name and address, the information referred to in section 15AK(1)(b)(i), an outline of the facts which led to the application for a marker, and any other information reasonably required by the competent authority. (c) Any information and evidence provided by the applicant within the period specified in accordance with paragraph (b) is deemed to have been submitted at the time of the initial request.
\n
(3)The competent authorities shall, jointly or separately, publish, on a website maintained by them or on their behalf, guidance on the procedures which shall apply to applications for markers.
\n
(4)Where the competent authority refuses to grant a marker, and where immunity from administrative financial sanctions is refused and an administrative financial sanction is imposed, the applicant may later rely on the contents of its application for leniency in proceedings under this Act (whether criminal or civil, including proceedings under Parts 2C to 2H) or in an appeal under section 15AY and the contents of any such application shall be provided to the High Court on any application under section 15AZ.
\n
(5)For the avoidance of doubt, an undertaking wishing to make an application for the reduction of administrative financial sanctions under section 15AJ may also apply to the competent authority for a marker.
\n
Summary applications for leniency 15AN. (1) A competent authority shall accept summary applications for leniency (in this section referred to as a ‘summary application’) from applicants that have applied to the European Commission for leniency, either by applying for a marker or by submitting a full application in relation to the same alleged cartel.
\n
(2)A summary application shall only be accepted by a competent authority provided that the application to the European Commission covers more than 3 member states as affected territories.
\n
(3)With a view to enabling the competent authority to determine an application for leniency, a summary application shall consist of a short description of each of the following: (a) the name and address of the applicant; (b) the names of other parties to the alleged cartel; (c) the affected products and territories; (d) the duration and the nature of the alleged cartel conduct; (e) the Member States in which the evidence of the alleged cartel is likely to be located; (f) information on any past or possible future leniency statements made to any other competition authorities or competition authorities of third countries in relation to the alleged cartel.
\n
(4)A summary application shall be accompanied by a copy of the application made to the European Commission and any written confirmation of same received.
\n
(5)The relevant Minister may prescribe rules and procedures governing summary applications for leniency, including procedures and decisions concerning upgrading summary applications to full applications, and guidelines for the exercise of the discretion of the competent authority under this section, and any such regulations shall address the following matters: (a) the precise form of summary applications for leniency; (b) the grant of summary application markers; (c) the process for verifying whether another application or other applications has or have been received in relation to the same cartel and for informing an applicant that it is the first applicant for a marker; (d) consultation between the competent authority and the European Commission in connection with summary applications for leniency; (e) the power of the competent authority to request further information in the context of summary applications for leniency; (f) the power of the competent authority to give directions to undertakings concerning submissions, the provision of information and related matters in the context of summary applications for leniency; (g) the circumstances in which the competent authority may direct that a summary applicant for leniency may be required to submit a full application and the power of the competent authority to give directions in that regard.
\n
Relationship between applications for immunity from administrative financial sanctions and sanctions on natural persons 15AO. (1) Where the conditions in subsection (2) are met, the following individuals are fully protected from any sanctions that may be imposed in administrative and non-criminal judicial proceedings, in relation to their involvement in the cartel covered by an application for immunity from administrative financial sanctions for infringements of relevant competition law: (a) current and former directors of the undertaking concerned; (b) managers of the undertaking concerned; (c) other members of staff of the undertaking concerned.
\n
(2)The conditions referred to in subsection (1) are as follows: (a) that the application for immunity from administrative financial sanctions of the undertaking to the relevant competent authority fulfils the requirements in accordance with paragraphs (a) and (b) of section 15AI(5); (b) that the individuals referred to in paragraphs (a), (b) and (c) of subsection (1) actively cooperate in this respect with the competent authority concerned; (c) that the application for immunity from administrative financial sanctions of the undertaking predates the time when the individuals referred to in paragraphs (a), (b) and (c) of subsection (1) were made aware by the competent authority of the proceedings leading to the imposition of sanctions referred to in subsection (1).
\n
(3)The individuals referred to in paragraphs (a), (b) and (c) of subsection (1) shall not be subject to criminal prosecution in relation to their involvement in the cartel covered by the application for immunity from administrative financial sanctions, for infringements of sections 4 or 5, if they meet the conditions set out in guidelines made under subsection (4) and actively cooperate with the competent prosecuting authority.
\n
(4)The competent prosecuting authority or the competent authority, as the case may be, may publish guidelines on the cooperation of individuals with the relevant authorities required under this section.
\n
(5)Where the condition of cooperation with the competent authority, in accordance with subsection (3), is not fulfilled, the competent prosecuting authority may proceed with the investigation, including prosecution of the individual or individuals concerned.
\n
(6)Where the competent authority has opened an investigation into a cartel following a leniency statement received under this Part, and a competition authority or prosecuting authority of another member state is also seised in its jurisdiction of any aspect of the same cartel, the competent authority shall ensure contacts between its authorised officers and the competition authority or prosecuting authority of the other Member State.
\n
(7)The competent authorities may publish, on a website maintained by them or on their behalf, guidance as to the procedures applicable to and appropriate scales for decisions by a competent authority in respect of the operation of immunity from administrative financial sanctions in circumstances where another Member State is investigating in its jurisdiction any aspect of the same cartel.
\n
Leniency programme for other infringements 15AP. (1) The competent authority may put in place a leniency programme, whether as part of a leniency programme under section 15AI or as a separate programme, for infringements of relevant competition law other than cartels to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings in exchange for— (a) disclosing that they have infringed relevant competition law other than by participating in a cartel, and (b) voluntarily cooperating with an investigation by the competent authority concerning the application of relevant competition law.
\n
(2)(a) The relevant Minister may prescribe the applicable procedures, conditions, appropriate scales, and factors relevant to decisions by a competent authority under subsection (1) to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings. (b) The competent authority may publish, on a website maintained by it or on its behalf, guidance as to the matters set out at paragraph (a).
\n
PART 2F Mutual assistance Cooperation with other competition authorities 15AQ. (1) A competent authority may request a competition authority of another Member State to carry out an inspection, interview or other fact-finding measure on its behalf.
\n
(2)A competent authority may, on the request of a competition authority of another Member State, or the European Commission (each of which is in this Part referred to as a ‘requesting competition authority’), carry out an inspection, interview or other fact-finding measure on behalf of the requesting competition authority pursuant to— (a) this Act, (b) Article 22 of Regulation (EC) No 1/2003 of 16 December 20025 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, (c) section 11, 18, 37 or 37A of the Act of 2014, (d) section 38A, 39 or 39A of the Act of 2002, or (e) any other relevant power conferred by law on the competent authority.
\n
(3)The competent authority and the competition authority of another Member State may exchange and use in evidence any material, including confidential information, for the purpose of this section, subject to the following limitations: (a) information provided to the competent authority by the competition authority concerned pursuant to this section shall only be used in evidence for the purpose of applying Article 101 or Article 102 of the Treaty on the Functioning of the European Union and in connection with the subject-matter for which it was collected by the competition authority concerned, save that the information may also be used for the purpose of applying section 4 or 5 in the same proceedings; (b) information provided to the competent authority by the competition authority concerned pursuant to this section may be used in evidence to impose sanctions on a natural person where— (i) the law of the Member State providing the information provides for sanctions of a similar kind in relation to an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union, or (ii) the information has been collected in a way that affords the same level of protection of the rights of defence of natural persons as is provided for under the law of the State but, in these circumstances, the information provided to the competent authority may not be used in subsequent proceedings before the courts to impose custodial sanctions on a natural person.
\n
(4)(a) A competent authority may appoint as an authorised officer under section 35 of the Act of 2014 or section 39 of the Act of 2002 any person authorised to be so appointed by a competition authority of another Member State. (b) To the extent to which a competent authority may confer any of its powers and functions under this Act, the Act of 2014 or the Act of 2002 on an authorised officer, it may so confer same upon an authorised officer appointed in accordance with this subsection. (c) An authorised officer appointed under section 35 of the Act of 2014 or section 39 of the Act of 2002 in accordance with this subsection shall be accountable to the competent authority for the conduct of their duties in the same manner as an authorised officer not authorised or appointed by the competition authority of another Member State. (d) The relevant Minister may provide by regulations, and (subject to any such regulations) the competent authorities may provide by rules and guidelines, for the appointment of authorised officers in accordance with this subsection.
\n
(5)Where the European Commission conducts an inspection in the State under Article 20 or 21 of Regulation (EC) No. 1/2003 of 16 December 20026 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, the competent authority shall, where requested to do so by the European Commission, assist the European Commission in carrying out such an inspection.
\n
Requests for the notification of preliminary objections and other documents 15AR. (1) A competent authority may request a competition authority of another Member State to notify an undertaking or association of undertakings, on behalf of the competent authority, of— (a) any preliminary objections that the undertaking or association of undertakings has infringed relevant competition law, or any decisions made by an adjudication officer under section 15X that an infringement of relevant competition law has occurred or is occurring, (b) any procedural act adopted in the context of enforcement proceedings which the undertaking or association of undertakings concerned is entitled to be notified of under the law of the State, and (c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments, related to the application of relevant competition law insofar as the documents concern an infringement by the undertaking or association of undertakings referred by the competent authority.
\n
(2)A competent authority shall, without undue delay following receipt of a request from a competition authority of another Member State and subject to section 15AT(16), notify an undertaking or association of undertakings, on behalf of the requesting competition authority, of— (a) any complaint that the undertaking or association of undertakings has infringed Article 101 or Article 102 of the Treaty on the Functioning of the European Union or any decisions made by the referring competition authority that an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union has taken place, (b) any procedural act adopted in the context of enforcement proceedings of which the undertaking or association of undertakings concerned would be entitled to be notified under the law of the State, (c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative fines or periodic penalty payments, related to the application of Article 101 or Article 102 of the Treaty on the Functioning of the European Union insofar as the documents concern an infringement by the undertaking or association of undertakings which has been referred by the referring competition authority.
\n
(3)This section is without prejudice to any other form of notification made by a requesting competition authority in accordance with the law applicable in the Member State concerned.
\n
Requests for the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments 15AS. (1) A competent authority may request a competition authority of another Member State to enforce a decision of an adjudication officer under section 15X which has become final.
\n
(2)A competent authority shall, without undue delay following receipt of a request of a competition authority in another Member State, take steps to enforce a final decision of that authority imposing administrative fines or periodic penalty payments adopted in accordance with Article 13 or 16 of the Directive.
\n
(3)Subsection (2) shall apply only to the extent that the requesting competition authority has made reasonable efforts to ascertain that the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable does not have sufficient assets in the Member State of the requesting competition authority to enable recovery of such administrative fine or periodic penalty.
\n
(4)In circumstances other than those set out in subsections (2) and (3) a competent authority may, subject to a request from a requesting competition authority, take steps to enforce a decision of that requesting competition authority to impose administrative fines or periodic penalty payments adopted in accordance with Articles 13 or 16 of the Directive including in circumstances where the undertaking or association of undertakings subject to such decision is not established in the Member State of the requesting competition authority.
\n
(5)Section 15AT(3)(e) shall not apply to a request under subsection (4).
\n
(6)Subsections (2) and (4) shall apply only to decisions of the requesting competition authority that are not, or are no longer, capable of being appealed.
\n
(7)(a) A competent authority to which a request has been made under subsection (2) or (4) shall, subject to section 15AT(16), on notice to the undertaking or undertakings concerned, apply to the High Court for confirmation that the competent authority may execute that request. (b) Section 15AZ shall apply, mutatis mutandis, to an application for confirmation under this subsection, save that— (i) subsections (3), (4) and (8) of that section shall not apply, and subsection (8) of this section shall apply, and (ii) subsection (7) of that section shall not apply, and the Court shall make no order as to costs. (c) Rules of court may make provision for applications for confirmation under this section, and for the expeditious hearing thereof and any such rules shall be in accordance with the procedure set out in section 15AZ.
\n
(8)In an application under subsection (7) for confirmation that a competent authority may execute a request to enforce the decision of a competition authority of another Member State, the High Court shall confirm that the competent authority may execute the decision unless— (a) it considers that the request does not comply with the requirements of section 15AT, or (b) the execution of the request would be manifestly contrary to the public policy of the State.
\n
(9)Applications for the enforcement of a decision of a competition authority of another Member State under subsections (2) and (4) shall be made within a period of 6 years from the date of the decision sought to be enforced.
\n
General principles of cooperation 15AT. (1) The requests referred to in sections 15AR and 15AS shall be executed by means of a notice which shall be accompanied by a copy of the preliminary objections, procedural act or other act, or a copy of the decision imposing administrative financial sanctions or periodic penalty payments to be notified or enforced, as the case may be.
\n
(2)The notice referred to in subsection (1) shall indicate: (a) the name and known address of the undertaking or association of undertakings concerned, and any other relevant information for the identification of the undertaking or association of undertakings concerned; (b) a summary of the relevant facts and circumstances; (c) a summary of the attached copy of the preliminary objections, procedural act or other act, or the attached copy of the decision imposing administrative fines or periodic penalty payments to be notified or enforced; (d) the name, address and other contact details of the competent authority or of the requesting competition authority; (e) the period within which notification or enforcement should be effected, such as statutory deadlines or limitation periods.
\n
(3)A request under section 15AS shall, in addition to the requirements set out in subsection (2), provide the following: (a) information about the decision permitting enforcement in the Member State of the requesting competition authority; (b) the date when the decision became final; (c) in the case of an administrative financial sanction imposed by a competent authority, the amount of the administrative financial sanction; (d) in the case of an administrative fine imposed by the requesting competition authority, the amount of the administrative fine; (e) the amount of the periodic penalty payment; (f) information showing the reasonable efforts made by the requesting competition authority to enforce the decision in its own territory.
\n
(4)The competent authority shall take all necessary measures for the execution of the request under this section, subject to subsection (16) and section 15AS(8).
\n
(5)The notice referred to in subsection (1) shall be in one of the official languages of the State, unless the competent authority and the requesting competition authority agree on a case-by-case basis that it may be in another official language of the European Union.
\n
(6)When required by the competent authority, the requesting competition authority shall provide a translation of the matter to be notified or the decision permitting enforcement of the administrative fine or periodic penalty payment into one of the official languages of the State.
\n
(7)Subsection (6) is without prejudice to the right of the competent authority and the requesting competition authority to agree on a case-by-case basis that such translation may be provided in another official language of the European Union.
\n
(8)Where the High Court, on an application for confirmation under section 15AS(7), declines to confirm a decision of a requesting competition authority in accordance with section 15AS(8), the competent authority shall notify the requesting competition authority of that decision.
\n
(9)The Court may, on an application for confirmation under section 15AS(7), direct the competent authority to request additional information from the requesting competition authority.
\n
(10)(a) The competent authority may request the reimbursement by the requesting competition authority of all reasonable additional costs in full, including translation, labour and administrative costs, that the competent authority has incurred in responding to requests made to the competent authority under section 15AQ(2) or 15AR(2). (b) The competent authority shall, where requested to do so by the competition authority to whom the competent authority has made a request under section 15AQ(1) or 15AR(1), reimburse all reasonable additional costs in full, including translation, labour and administrative costs, incurred by that competition authority in relation to that request.
\n
(11)The competent authority may recover the full costs that it has incurred in relation to actions taken to enforce a decision of a requesting competition authority under section 15AS from the administrative fines or periodic penalty payments it has collected on behalf of such requesting competition authority, including translation, labour and administrative costs.
\n
(12)Where, having taken steps to enforce a decision of a requesting competition authority in accordance with section 15AS, the competent authority is unsuccessful in collecting the administrative fines or periodic penalty payments on behalf of such requesting competition authority, the competent authority may request the requesting competition authority to bear the costs that the competent authority has incurred in doing so.
\n
(13)(a) The competent authority may recover the costs incurred in relation to the enforcement of a decision under section 15AS from the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable. (b) (i) Where the competent authority fails, within a reasonable period, to recover the costs incurred in relation to the enforcement of a decision under section 15AS from the undertaking or association of undertakings against which the administrative fine or periodic payment is enforceable, the competent authority may initiate proceedings for recovery of same. (ii) The High Court shall determine the costs of any such proceeding.
\n
(14)The competent authority shall recover the amounts referred to in this section in euro.
\n
(15)The competent authority shall, if necessary, convert the administrative fines or periodic penalty payments referred to in this section into euro at the rate of exchange applying on the date on which the administrative fines or periodic penalty payments were imposed.
\n
(16)The competent authority may not give effect to a request under section 15AR where— (a) it considers that the request does not comply with the requirements of this section, or (b) the execution of the request would be manifestly contrary to the public policy of the State.
\n
Disputes concerning requests for notification or enforcement of decisions imposing administrative fines or periodic penalty payments 15AU. (1) Disputes set out in subsection (2)— (a) shall not be subject to the jurisdiction of the courts of the State, and (b) where they are the subject of proceedings in the State, shall be resolved by application of the law of the Member State of the requesting competition authority.
\n
(2)The disputes referred to in subsection (1) are those exclusively concerning one or more of the following: (a) the lawfulness of an act to be notified in accordance with section 15AR; (b) the lawfulness of a decision to be enforced in accordance with section 15AS; (c) the lawfulness of the notice requesting enforcement in the State; (d) limitation periods for the enforcement of administrative fines or periodic payments referred to in subsection (9) of section 15AS.
\n
(3)A dispute concerning the enforcement measures taken in the State or concerning the validity of a notification made by the competent authority shall fall within the jurisdiction of the High Court and shall be governed by the law of the State.
\n
PART 2G Procedural provisions Access to file by parties and limitations on the use of information 15AV. (1) Where a competent authority or authorised officer requires a natural person to provide a statement or admission on the basis of measures referred to in applicable provisions, any such statement or admission may not be admissible in evidence against that person in criminal proceedings other than criminal proceedings for an offence under section 11(3)(d), 18(4)(c), 35(8)(c) or 36(6) of the Act of 2014, or an offence under section 50(5) of this Act, or for perjury where such statement or admission was provided under oath.
\n
(2)Subject to subsection (3), and save in accordance with law, an adjudication officer, an authorised officer, a competent authority and its respective servants or agents shall not disclose to any person— (a) any confidential information obtained by virtue of the exercise of powers conferred by or under this Act, or (b) any information obtained by virtue of the exercise of powers conferred by or under Part 2D or section 18 of the Act of 2014 in relation to an investigation under section 10(1)(c) of that Act where that information was given under power of compulsion.
\n
(3)Notwithstanding subsection (2) an adjudication officer, a competent authority and its servants or agents may disclose information obtained by virtue of the exercise of powers conferred by or under this Act where such disclosure is— (a) permitted by section 15AX, (b) otherwise permitted by law, or (c) duly authorised by the competent authority or an adjudication officer in the performance of his or her functions.
\n
(4)Information provided to any person pursuant to subsection (3) may contain such redactions as an adjudication officer or a competent authority may consider necessary and appropriate— (a) to protect commercially sensitive information, (b) to protect the rights of the parties or any other person, or (c) for any other good and sufficient reason.
\n
(5)A person who contravenes subsection (2) commits 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.
\n
(6)Subject to this section, the competent authority shall not disclose, or otherwise grant access to, a leniency statement or a settlement submission to any person other than the undertaking or association of undertakings to which the statement or submission relates, other than where such disclosure or access is required to be provided to an undertaking or association of undertakings— (a) that is a party to proceedings under Part 2D or 2E, or (b) that is a party to proceedings under Part 2H, other than an undertaking or association of undertakings referred to in section 15AY(1)(b).
\n
(7)Access to a leniency statement or a settlement submission shall only be granted to the undertaking or association of undertakings referred to in subsection (6) for the purpose of defending proceedings before the competent authority under Part 2D or 2E or in any subsequent proceeding under Part 2H.
\n
(8)Where an undertaking or association of undertakings referred to in subsection (6) has been given access to a leniency statement or a settlement submission for the purposes of exercising its right of defence under subsection (7), the undertaking or association of undertakings concerned shall be deemed to have given an undertaking that any such information to which it has been given access shall only be used in proceedings that are directly related to those in which access has been granted, and shall not be retained, stored or otherwise kept following the end of those proceedings or any subsequent proceeding under Part 2H.
\n
(9)Subsection (6) shall only apply where the proceedings concern— (a) the allocation between cartel participants of an administrative financial sanction imposed jointly and severally on them in proceedings under this Act, or (b) the review, under Part 2H, of a decision by which an infringement of relevant competition law was found by the competent authority.
\n
(10)The following categories of information obtained by a party during investigations by a competent authority under this Act, or administrative sanctions proceedings before an adjudication officer under this Act, shall not be used by that party in proceedings before a court prior to the competent authority or an adjudication officer, as the case may be, having closed such proceedings with respect to all parties under investigation, whether by making a decision under section 15X or 15AE: (a) information that was prepared by persons specifically for investigations by the competent authority or administrative sanctions proceedings before an adjudication officer; (b) information that the competent authority or an adjudication officer has drawn up and sent to the parties in the course of an investigation or administrative financial sanctions proceedings; (c) settlement submissions that have been withdrawn.
\n
(11)A leniency statement shall only be exchanged between a competent authority and the competition authority of another Member State or the European Commission pursuant to Article 12 of Regulation (EC) No 1/20037 — (a) with the consent of the applicant (within the meaning of Part 2F), (b) where the competition authority or the European Commission has also received a leniency application relating to the same infringement from the same applicant as the competent authority transmitting the leniency statement, or (c) subject to subsection (12), where the competent authority has also received a leniency statement relating to the same infringement from the same applicant as the European Commission or the competition authority transmitting the leniency statement.
\n
(12)Subsection (11)(c) shall only apply where, at the time the leniency statement is sent, it is not open to the applicant to withdraw the information which it has submitted to the national competition authority receiving the leniency statement.
\n
(13)The form in which the leniency statement is submitted under section 15AL shall not affect the application of subsections (5) to (11).
\n
(14)In this section, ‘applicable provisions’ means— (a) sections 18, 37(2)(d)(ii) and 37A of the Act of 2014, and (b) sections 38A, 39(3A) and (3B) and 39A of the Act of 2002.
\n
Admissibility of evidence 15AW. (1) The types of proof that are admissible as evidence in proceedings under this Act (whether criminal or civil, including proceedings under Part 2 and Parts 2C to 2F before a court or an adjudication officer) shall include relevant documents, oral statements, electronic messages, recordings and all other objects containing information, irrespective of the form it takes and the medium on which information is stored, provided that the proof would be admissible before a court.
\n
(2)If a document contains a statement by a person referred to in subsection (3) asserting that an act has been done, or is or was proposed to be done, by another person, being an act (the ‘relevant act’) that relates to— (a) the entry into or the making or implementation of an agreement or decision, or the engaging in of a concerted practice, the subject of proceedings under this Act, or (b) the doing of the act or acts that constitute an abuse of a dominant position, the subject of proceedings under this Act, then, subject to the conditions specified in subsection (4) being satisfied, that statement shall be admissible as evidence in the proceedings referred to in paragraph (a) or (b) that the relevant act was done by that other person or was proposed (at the time the statement was made or, as the case may be, at a previous time) to be done by him or her.
\n
(3)The first-mentioned person in subsection (2) is a person who has done an act of the kind referred to in that subsection in relation to the agreement, decision, concerted practice or abuse of dominant position concerned (whether or not the same act which the second-mentioned person referred to in that subsection is alleged to have done or proposed to do).
\n
(4)The conditions mentioned in subsection (2) are that the document referred to in that subsection— (a) has come into existence before the commencement of the proceedings under this Act in which it is sought to tender the document in evidence, and (b) has been prepared otherwise than in response to any enquiry made or question put by a member or officer of the competent authority, a member of the Garda Síochána, an officer of the European Commission, or an authorised officer relative to any matter the subject of those proceedings.
\n
(5)In estimating the weight, if any, to be attached to evidence admitted by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.
\n
(6)Where the proof admitted in evidence by virtue of this section is comprised of a statement by a person— (a) any evidence which, if the person who made the statement had been called as a witness, would have been admissible as relevant to his or her credibility as a witness shall be admissible for that purpose, (b) evidence may, with the leave of the court or adjudication officer seised of the proceedings, be given of any matter which, if that person had been called as a witness, could have been put to him or her in cross-examination as relevant to his or her credibility but of which evidence could not be adduced by the cross-examining party, and (c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) a statement which is inconsistent with it shall, if not already admissible by virtue of any rule of law or other enactment, be admissible for the purpose of showing that he or she has contradicted himself or herself.
\n
(7)Nothing in this section shall prejudice the admissibility in any proceedings under this Act before a court or an adjudication officer of any document, as evidence of any matters stated in it— (a) that is so admissible by virtue of this Act, any rule of law or any other enactment, or (b) in respect of adjudication officers, that would be admissible before a Court hearing civil proceedings by virtue of this Act, any rule of law or any other enactment.
\n
(8)The provisions of Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 shall apply to proceedings under this Act (whether criminal or civil, including proceedings under Parts 2C to 2H of this Act).
\n
Confidentiality rings 15AX. (1) Where, in accordance with a provision to which this section applies, a competent authority provides, or otherwise makes available, a document to any person or undertaking, the competent authority may notify the person or undertaking concerned that such document, or such part of the document as it may specify, is provided subject to this section.
\n
(2)A document, or part of a document, provided subject to this section may not be viewed by, or shared with, any person other than one or more of the following, as the competent authority may specify: (a) the person or undertaking to whom the document is provided or otherwise made available; (b) a legal adviser, or other professional adviser, of the person or undertaking to whom the document is provided or otherwise made available; (c) such other person as the competent authority may specify.
\n
(3)This section applies to the following provisions: (a) section 15L; (b) Part 2E; (c) Part 2F.
\n
(4)A person who allows a document provided to the person subject to this section to be viewed by, or shared with, a person other than in accordance with this section 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.
\n
PART 2H Appeals, Confirmations and Judicial Review Appeal against certain decisions 15AY. (1) (a) (i) An undertaking or association of undertakings the subject of a decision under section 15X (including a decision on the basis of which an Article 16(1) periodic penalty payment is imposed), other than section 15X(8), may appeal to the Court against that decision not later than 28 working days after the undertaking or association of undertakings receives notice of such decision under section 15Y. (ii) An undertaking or association of undertakings the subject of an order on consent under section 15X(8) may appeal to the Court against that decision not later than 12 working days after the undertaking or association of undertakings receives notice of such decision under section 15Y. (iii) A decision of an adjudication officer under section 15X shall not be questioned, including as to its validity, other than by way of an appeal under this section, and no proceedings questioning such a decision (including an application for judicial review referred to in section 15AAA or otherwise) may be brought before the courts other than an appeal under this section or an application for confirmation under section 15AZ. (b) An undertaking or association of undertakings affected by, but not the subject of, a decision under section 15X may, not later than 14 working days after that decision is published, apply to the Court for leave to appeal to the Court against that decision. (c) A notified undertaking may appeal to the Court against a prohibition notice not later than 12 working days after the notified undertaking was served with the prohibition notice. (d) The respondent to an appeal under this section shall be the competent authority.
\n
(2)(a) On application, the Court may extend the period within which an appeal may be brought under subsection (1)(a) or (c), or within which an application for leave to appeal may be brought under subsection (1)(b), where it is satisfied that— (i) there is exceptional, good and sufficient reason for doing so, (ii) the circumstances that resulted in the failure to bring an appeal within the period provided for in subsection (1) were outside the control of the applicant for the extension, and (iii) if an application for confirmation has been brought under section 15AZ— (I) the Court has not heard the application for confirmation of the decision, and (II) the Court has not determined the application for confirmation of the decision, (b) Where an application for confirmation has been brought pursuant to section 15AZ the Court may, upon application or of its own motion, stay the proceedings under section 15AZ. (c) (i) An application for leave under subsection (1)(b) shall be made by motion ex parte and shall be grounded in the manner specified in rules of court in respect of an ex parte motion for leave. (ii) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the competent authority or the undertaking or association of undertakings concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis, and may adjourn the application on such terms as it may direct in order that a notice may be served on that person. (iii) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion for leave) to any person specified for that purpose by order of the Court. (d) An undertaking or association of undertakings that appeals under subsection (1), or makes an application under subsection (14)— (i) may include in such appeal or application, as the case may be, any ground that could, but for section 15AAA(2), be relied upon by the notified undertaking in an application seeking judicial review, and (ii) shall, on the same date as it makes such appeal or application, as the case may be, notify the respondent of the fact that it has made the appeal or application, and of the grounds on which it has made the appeal or application. (e) The Court may— (i) on the consent of all of the parties to an application for leave under subsection (1)(b) (including notice parties), or
\n
(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances, treat the application as if it were the hearing of the appeal and may for that purpose adjourn the hearing on such terms as it may direct. (f) The Court shall not grant leave under subsection (1)(b) unless it is satisfied that— (i) there are substantial grounds for contending that the decision concerned is invalid or ought to be quashed, including any of the grounds of challenge that could have been raised by the undertaking in judicial review proceedings but for section 15AY(1)(a), and (ii) the applicant is materially affected by the decision or otherwise has a sufficient interest in the matter which is the subject of the application. (g) A sufficient interest for the purposes of paragraph (f)(ii) of this subsection is not limited to a financial interest. (h) If the Court grants leave to appeal under subsection (1)(b), no grounds shall be relied upon in the appeal under the order other than those determined by the Court to be substantial under paragraph (f)(i) of this subsection.
\n
(3)The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, issue directions in respect of the conduct of the appeal.
\n
(4)An appellant shall, when making an appeal or an application for leave to appeal, precisely state all of the grounds in law and fact upon which the appeal is made and shall provide to the Court all of the documents and evidence which it is alleged support the granting of the appeal or upon which he or she intends to rely to support those grounds.
\n
(5)A party to an appeal other than the appellant shall, when responding to an appeal, state all of the grounds upon which he or she responds to the appeal and provide to the Court all of the documents and evidence upon which he or she intends to rely to support those grounds.
\n
(6)Subject to subsection (7), a party to an appeal shall not be entitled during the course of an appeal to make submissions to the Court other than submissions related to the grounds stated, or documents and evidence provided, under subsections (4) and (5).
\n
(7)(a) The Court may, upon application and where it considers it necessary for the fair and proper determination of an appeal, require or permit a party to an appeal to— (i) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided under subsections (4) and (5), and (ii) provide documents or evidence to the Court other than documents or evidence provided under subsections (4) and (5), (b) The Court shall refuse to consider submissions, documents or evidence where— (i) the submissions, documents or evidence are not relevant to the appeal, or (ii) it is considered appropriate so as to avoid undue repetition of submissions. (c) Where the Court has granted leave to deliver additional submissions, documents or evidence in an application under paragraph (a), the Court shall give directions as to the scope, form and timeframe for delivery of such additional submissions, documents or evidence. (d) The Court may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.
\n
(8)The Court, on hearing an appeal under subsection (1), may consider— (a) whether the decision made is supported by the evidence including evidence admitted in accordance with subsections (7) and (9), (b) whether the law was correctly applied in reaching the decision, (c) whether an appropriate and proportionate sanction or prohibition notice was imposed, and (d) whether the jurisdiction existed to make the decision against which an appeal has been brought.
\n
(9)(a) In considering an appeal, the Court— (i) shall have regard to the record of the decision the subject of the appeal, and (ii) shall have regard to any submissions, documents or evidence admitted under subsection (7). (b) The Court may draw inferences of fact in accordance with law.
\n
(10)The Court may, on the hearing of an appeal under subsection (1)— (a) confirm the decision or prohibition notice the subject of the appeal, or (b) where it is satisfied by reference to the grounds of appeal that a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error, was made in making the decision, or that the decision was made without complying with fair procedures— (i) annul the decision in its totality or in part, and— (I) remit the decision for reconsideration by the adjudication officer or competent authority as the case may be, subject to such directions as the Court considers appropriate and, in the case of a decision by an adjudication officer, including whether the decision should be reconsidered by another adjudication officer, or (II) vary the decision and substitute such other decision as the Court considers appropriate, and (ii) direct how the costs of the appeal or the application for leave to appeal are to be borne.
\n
(11)The Court shall, in determining an appeal or an application for leave to appeal under subsection (1), act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals under subsection (1)(c).
\n
(12)Rules of court may make provision for the conduct of appeals under this section including— (a) for the expeditious hearing thereof, (b) for the procedures concerning the hearing of appeals and applications for leave to appeal, (c) for the manner in which the issues on any such appeal or application for leave to appeal may be pleaded and evidence adduced in connection therewith, and (d) for expedited hearings of appeals in respect of the imposition of a prohibition notice, or the imposition of a periodic penalty payment under section 15X.
\n
(13)The making of an appeal under subsection (1)(c), or an application for leave to appeal under subsection (1)(b), does not suspend the effect of the decision to which the appeal relates unless the Court, on application by the undertaking bringing the appeal, places a stay on the decision.
\n
(14)Where an appeal is made under subsection (1)(c)— (a) the appellant may apply to the Court to have the effect of the prohibition notice suspended until such time as the appeal is determined, and (b) the Court may, if it considers it appropriate to do so having regard to all the circumstances, order that the effect of the prohibition notice, or such particular effects as the Court may order, be suspended until the appeal is determined, or until such other time as the Court may order.
\n
(15)Where the Court confirms, or substitutes its own decision for, the decision of an adjudication officer imposing an administrative financial sanction or periodic penalty payment, the Court may set a time limit for the payment of the administrative financial sanction or periodic penalty payment concerned.
\n
(16)The Court may award the costs of an appeal in accordance with subsection (9) of section 15X.
\n
(17)In this section, ‘Court’ means the High Court.
\n
Court confirmation of decision on certain administrative sanctions 15AZ. (1) (a) Where an undertaking or association of undertakings does not, within the period provided for in section 15AY(1), appeal to the Court against a decision under section 15X imposing an administrative financial sanction, an Article 16(2) periodic penalty payment, a hearing requirement periodic penalty payment or structural or behavioural remedies, the competent authority shall, as soon as practicable after the expiration of the period allowed for an appeal under section 15AY(1), make an application to the Court for the confirmation of that decision. (b) The application under paragraph (a) may be made by the competent authority on an ex parte basis provided that the undertaking or association of undertakings to which the application relates informs the competent authority in writing that it agrees to the application being made ex parte.
\n
(2)(a) An application by the competent authority under subsection (1) shall include the decision under section 15X together with the documents and evidence before the adjudication officer which are referred to in that decision, and may include any other documents and evidence which were before the adjudication officer. (b) Notice of an application under subsection (1) shall be served by the competent authority on the undertaking or association of undertakings the subject of a decision under section 15X within 7 working days of the competent authority lodging the application in Court. (c) The notice referred to in paragraph (b) shall specify the time fixed by the Court for the hearing of the application, and shall enclose copies of all the papers lodged in Court in relation to the application under subsection (1).
\n
(3)The Court shall, on the hearing of an application under subsection (1), confirm the decision the subject of the application unless the Court, on the basis of the findings of fact in the decision of the adjudication officer (which are to be accepted as final by the Court), determines that— (a) the decision of the adjudication officer contains an error of law which is— (i) manifest from the record of the decision, and (ii) fundamental so as to deprive the decision of its basis, or (b) the sanction or remedy imposed was manifestly— (i) disproportionate, (ii) in excess of the sanction or remedy required to be dissuasive, or (iii) in excess of the sanction or remedy required to be effective.
\n
(4)The Court— (a) where it makes a determination referred to in subsection (3)(a), or a determination under subsection (3)(a) and (b), in relation to an application under subsection (1), shall remit the matter for reconsideration by an adjudication officer, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not— (i) the adjudication officer should be limited to reconsidering a specific aspect of a decision made under section 15X, and (ii) the matter should be reconsidered by another adjudication officer, or (b) where it makes a determination referred to in subsection (3)(b), but not a determination referred to in subsection (3)(a), in relation to an application under subsection (1), may— (i) where the application does not relate to an order under section 15X(8), order that a lower amount shall be substituted for the amount of the periodic penalty payment or administrative financial sanction specified in the decision, and confirm the decision subject to such substitution, and (ii) where the Court does not make an order referred to in subparagraph (i) and considers that the interests of justice so require, remit the matter for reconsideration by an adjudication officer, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not— (I) the adjudication officer should be limited to reconsidering a specific aspect of a decision made under section 15X, and (II) the matter should be reconsidered by another adjudication officer.
\n
(5)The Court shall hear the application under subsection (1) on the evidence before the adjudication officer.
\n
(6)The Court shall, in determining an application under subsection (1), act as expeditiously as possible consistent with the administration of justice.
\n
(7)(a) The Court may direct how the costs of an application under this section are to be borne. (b) Without prejudice to the application by the Court of costs rules under other enactments (including the Rules of the Superior Courts), the Court may in its discretion award the costs of an application under this section as if section 15X(9) applied to an award of costs under this section.
\n
(8)A decision made under section 15X imposing an administrative financial sanction, an Article 16(2) periodic penalty payment or structural or behavioural remedies in accordance with section 15Z shall not have effect until the later of— (a) where the Court does not grant leave to appeal to the Court of Appeal under section 15AAB— (i) where an appeal is not brought within the time for appealing against that decision under section 15AY, the date on which the Court makes an order under this section confirming the decision, or (ii) where an appeal under section 15AY has been brought, the date on which the Court confirms the decision in accordance with subsection (10) of that section, or (b) where the Court grants leave to appeal to the Court of Appeal under section 15AAB— (i) the date on which any appeal to the Court of Appeal under section 15AAB and further appeal in relation to the decision has been decided, or has otherwise ended, without the decision being overturned, annulled or otherwise prevented from coming into effect by order of the Court of Appeal, or (ii) the date on which the time for appealing against the result of the appeal under section 15AAB has expired without an appeal having been brought.
\n
(9)Rules of court may make provision for the conduct of applications for confirmation under this section, and for the expeditious hearing thereof.
\n
(10)Where the Court confirms, or substitutes its own decision for, the decision of an adjudication officer imposing an administrative financial sanction or an Article 16(2) periodic penalty payment the Court may set a time limit for the payment of the administrative financial sanction or Article 16(2) periodic penalty payment concerned.
\n
(11)In this section, ‘Court’ means the High Court.
\n
Judicial review 15AAA. (1) (a) An adjudication officer may, on her or his own initiative or at the request of the competent authority or an undertaking or association of undertakings the subject of a referral under section 15M, refer to the Court for decision by way of case-stated a question of law arising at a hearing on a referral under section 15M. (b) Where a question has been referred under subsection (1), the adjudication officer shall not, in relation to a referral under section 15M to which the hearing relates— (i) make a decision under section 15X to which the question is relevant while the reference to the Court is pending, or (ii) proceed in a manner, or make a decision under section 15X, that is inconsistent with the Court’s opinion on the question. (c) Where a question is referred to the Court under subsection (1)— (i) the adjudication officer shall send to the Court all documents before the adjudication officer that are relevant to the matter in question, and (ii) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the adjudication officer.
\n
(2)The validity of a decision made or an act done by a competent authority (including an authorised officer and an adjudication officer) in the performance of a function under Parts 2C to 2G (whether such function is performed by way of powers conferred by or under this Act, the Act of 2014 or the Act of 2002) shall not be questioned other than— (a) by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (in this section referred to as ‘Order 84’), and in accordance with this section, or (b) in accordance with a process provided for in this Act (including section 15AY(1)), the Act of 2002 or the Act of 2014 by which the validity of such decision or act may be questioned.
\n
(3)At any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the competent authority (including a matter before an adjudication officer), the competent authority may apply to the Court to stay the proceedings pending the making of a decision by the competent authority (including a decision by an adjudication officer) in relation to the matter concerned.
\n
(4)On the making of such an application, the Court may, where it considers that the matter before the competent authority (including an adjudication officer and an authorised officer) is within the jurisdiction of the competent authority (including an adjudication officer and an authorised officer), make an order staying the proceedings concerned on such terms as it thinks fit.
\n
(5)Subject to subsection (6), an application for leave to apply for judicial review under Order 84 in respect of a decision or other act to which subsection (2) applies shall be made— (a) in respect of decisions or other acts under Parts 2C, 2D and 2G, not later than 28 working days, or (b) in respect of decisions or other acts under Parts 2E and 2F, not later than 8 weeks, from the date on which the notice of the decision or act was first sent or published as the case may be or, if notice of the decision or act was not sent or published, from the date on which the undertaking or person became aware of the decision or act.
\n
(6)The Court may extend the period provided for in subsection (5) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that— (a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.
\n
(7)References in this section to Order 84 shall be construed as including references to Order 84 as amended or replaced (with or without modification) by rules of court.
\n
(8)(a) An application for leave under this section shall be made by motion ex parte and shall be grounded in the manner specified in Order 84 in respect of an ex parte motion for leave. (b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the competent authority or the undertaking or association of undertakings concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person. (c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of an ex parte motion for leave)— (i) if the application relates to a decision made or other act done by a competent authority (including an adjudication officer and an authorised officer) in the performance or purported performance of a function under this Act, the Act of 2002 or the Act of 2014, to the competent authority (including an adjudication officer and an authorised officer) concerned, and (ii) to any other person specified for that purpose by order of the Court.
\n
(9)The Court may— (a) on the consent of all of the parties, or (b) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances, treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.
\n
(10)The Court shall not grant leave under this section unless it is satisfied that— (a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, (b) the applicant is materially affected by or has a sufficient interest in the matter which is the subject of the application, and (c) the matter does not relate to a decision by an adjudication officer under section 15X.
\n
(11)If the Court grants leave under this section, no grounds shall be relied upon in the application for judicial review under Order 84 other than those determined by the Court to be substantial under subsection (10)(a).
\n
(12)The Court may, as a condition for granting leave under this section, require the applicant for such leave to give an undertaking as to damages.
\n
(13)If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to which subsection (2) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.
\n
(14)The Court shall, in determining an application under this section or an application for judicial review on foot of such leave— (a) act as expeditiously as possible consistent with the administration of justice, and (b) give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.
\n
(15)Rules of court may make provision for the expeditious hearing of references to the Court by adjudication officers under subsection (1), for applications for leave under this section and applications for judicial review on foot of such leave.
\n
(16)In this section, ‘Court’ means the High Court.
\n
Appeals to the Court of Appeal 15AAB. (1) An appeal to the Court of Appeal shall lie in respect of a determination of the High Court on an appeal under section 15AY in respect of a decision by an adjudication officer under section 15X.
\n
(2)The determination of the High Court on— (a) an appeal under section 15AY against a prohibition notice, (b) an application for confirmation under section 15AZ, (c) an application for confirmation under section 15AS(7), (d) an application for judicial review of any other decision made or act done under this Act by the competent authority (including decisions made or acts done under this Act by an authorised officer or by an adjudication officer), or (e) a reference to the Court by way of case-stated by an adjudication officer under section 15AAA(1), shall be final and no appeal shall lie from the decision of the High Court to the Court of Appeal in any such case save with leave of the High Court, which leave shall only be granted where 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 made to the Court of Appeal.
\n
(3)In respect of an application for confirmation under section 15AZ, where the point of law which would otherwise be certified is a point that could have been brought by way of an appeal under section 15AY, the High Court may only in exceptional circumstances grant leave to appeal to the Court of Appeal under subsection (2).
\n
(4)(a) Subsection (2) shall 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 Constitution. (b) Nothing in subsection (2) shall be construed as preventing or restricting a competent authority from bringing an appeal against a refusal of the District Court to issue a warrant under section 37 of the Act of 2014 or section 39, 40 or 40A of the Act of 2002.
\n
(5)On an appeal from a determination of the High Court to which subsection (2) applies, the Court of Appeal shall— (a) have jurisdiction to determine only the point of law certified by the High Court under subsection (2) (and to make only such order in the proceedings as follows from such determination), and (b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.
\n
(6)Nothing in this section shall affect the jurisdiction of the Supreme Court.
\n
(7)Except in the case of an appeal against the imposition, or the amount, of an administrative financial sanction, the making of an appeal under this section does not suspend the effect of the decision to which the appeal relates unless a court so directs (including upon an application under section 15AY(14) ).
\n
(8)Rules of court may make provision for the expeditious hearing of appeals under this section to the Court of Appeal and otherwise under this Act to the Supreme Court.
\n
Conduct of proceedings 15AAC. The whole or part of any court proceedings under this part and of any appeal against any order of court may be heard otherwise than in public if the court seised of the proceedings or appeal, in the interests of justice, considers that it would be appropriate in the circumstances to hold the hearing or part of the hearing otherwise than in public.
\n
Treatment of amounts paid in respect of administrative financial sanctions 15AAD. A payment received by the competent authority of any amount due to it pursuant to a decision confirmed or replaced under section 15AY or confirmed under section 15AZ or pursuant to a decision under section 15X in respect of periodic penalty payments shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.
\n
Recovery of amounts of administrative financial sanctions and periodic penalty payments due 15AAE. The competent authority may recover as a simple contract debt in any court of competent jurisdiction, any administrative financial sanction or periodic penalty payment imposed under this Act.”.
\n
PART 3
\n
Miscellaneous amendments to Principal Act Amendment of section 18 of Principal Act 14. Section 18 of the Principal Act is amended— (a) by the insertion of the following subsections after subsection (3): “(3A) Any of the undertakings involved in a merger or acquisition that— (a) is not required to be notified under subsection (1), and (b) was not notified under subsection (3), may notify the Commission in writing of the merger or acquisition after it has been put into effect, and provide full details of the merger or acquisition concerned. (3B) The Commission may review any notification made to it under subsection (3) or (3A) and may, in relation to such notification, take interim measures.”, and (b) in subsection (2)(c)— (i) by the substitution of the following subparagraph for subparagraph (i): “(i) subparagraphs (i) and (ii) of subsection (1)(a), in their application to the part of an undertaking mentioned in section 16(1)(c), shall apply as if the references to turnover in the State were, in relation to that part of an undertaking, references to turnover in the State generated from the assets of that part of an undertaking that are the subject of the acquisition mentioned in section 16(1)(c),”, and (ii) by the substitution of the following subparagraph for subparagraph (ii): “(ii) notwithstanding paragraph (b), that part of an undertaking mentioned in section 16(1)(c) shall, for the purposes of paragraph (a) or (b) of subsection (1) but not so as to place on it an obligation to notify the Commission of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition.”, (c) in subsection (9), by the substitution of “subsection (1), section 18A(1) or section 20(2) an undertaking, the person in control of an undertaking, or (in the case of section 20(2) ) other person” for “subsection (1) or section 20(2) an undertaking, or the person in control of an undertaking”, and (d) by the insertion of the following subsection after subsection (14): “(15) Summary proceedings in relation to an offence under subsection (9) may be brought by the Commission.”.
\n
Insertion of sections 18A and 18B into Principal Act 15. The Principal Act is amended by the insertion of the following sections after section 18: “Power to require notification of below threshold mergers or acquisitions 18A. (1) This section applies to a merger or acquisition that— (a) is not required to be notified under section 18(1), (b) has not been notified to the Commission under section 18(3) or 18(3A), and (c) may, in the opinion of the Commission, have an effect on competition in markets for goods or services in the State.
\n
(2)In relation to a merger or acquisition to which this section applies, the Commission may require, in accordance with subsection (3), each of the undertakings involved in the merger or acquisition to notify the Commission in writing, and provide full details, of the merger or acquisition and an undertaking of which such a requirement is made shall comply with the requirement.
\n
(3)A requirement under subsection (2) shall— (a) be made by notice in writing served on each of the undertakings involved in the merger or acquisition, (b) specify a period within which the undertakings involved in the merger or acquisition shall submit a notification to the Commission, and (c) be made by the Commission no later than 60 working days after the earliest of the following dates: (i) the date on which one of the undertakings involved in the merger or acquisition publicly announces an intention to make a public bid or a public bid is made but not yet accepted; (ii) the date on which the Commission becomes aware that the undertakings involved in the merger or acquisition have entered into an agreement the result of which will, if the agreement is implemented, be that the merger or acquisition occurs; (iii) the date on which the merger or acquisition is put into effect.
\n
(4)Where an undertaking of which a requirement is made under subsection (2) requests in writing, before the expiration of— (a) the period specified in the requirement, or (b) such period as stands extended from time to time in accordance with this subsection, an extension to the period within which it is required to notify the merger or acquisition concerned to the Commission, the Commission may, where it considers it appropriate to do so, extend that period, and an undertaking in respect of which such an extension is granted shall comply with the requirement within the period as so extended.
\n
(5)(a) Subject to paragraph (b), sections 18(8), 18(12), 19, 20, 21 and 22 shall apply to a notification under subsection (2) as if it were a notification under section 18(1). (b) Where a merger or acquisition to which this section applies has already been put into effect at the time a requirement is made under this section, subsections (1) to (5) of section 19 shall not apply to the merger or acquisition.
\n
(6)Where an undertaking does not comply with a requirement to notify a merger or acquisition under subsection (2) within the period specified in the requirement, the Commission may, in relation to the merger or acquisition, do one or more of the following: (a) examine the merger or acquisition in accordance with section 20 as if a notification had been received by the Commission in respect of it on the last day of the period specified in the requirement under subsection (1); (b) where the Commission considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State, impose interim measures and the provisions of section 18B will apply mutatis mutandis to any measures so imposed.
\n
Power to impose interim measures in respect of certain mergers and acquisitions 18B. (1) Where the Commission— (a) has been notified of a merger or acquisition under section 18(1), 18(3), 18(3A), 18(12A) or 18A, and (b) considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State, it may impose an interim measure on one or more undertakings involved in the merger or acquisition.
\n
(2)Where the Commission imposes an interim measure under subsection (1), it shall by notice in writing served on the undertaking on which the measure is imposed— (a) set out the nature of the interim measure or interim measures imposed, and (b) specify the period for which the interim measure shall remain in force, which may include such period as is required for the Commission to make a determination under section 21 or section 22 in relation to the merger or acquisition.
\n
(3)Where an interim measure has been imposed on an undertaking in accordance with this section, the Commission may, at any time before the expiry of the period referred to in subsection (2)(b), by notice in writing served on the undertaking on which the interim measure was imposed, vary or revoke the interim measure (including by specifying a period other than the period specified in the original interim measure) and, in the case of an interim measure that is varied, the interim measure shall apply on the terms set out in such notice.
\n
(4)Where an undertaking fails to comply with an interim measure imposed on it in accordance with this section, the undertaking, or a person in control of the undertaking (within the meaning of section 18(11) ), shall be guilty of an offence and shall, subject to subsection (5), be liable— (a) on summary conviction, to a fine not exceeding €3,000, (b) on conviction on indictment, to a fine not exceeding €250,000.
\n
(5)Subsection (4) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the undertaking or 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 (4) will have effect as if— (a) in paragraph (a) of that subsection, “€300” were substituted for “€3,000”, and (b) in paragraph (b) of that subsection, “€25,000” were substituted for “€250,000”.
\n
(6)In this Part, ‘interim measure’ means a measure that is imposed by the Commission in accordance with this section requiring an undertaking involved in a merger or acquisition— (a) to refrain from taking any step, or such steps as may be specified by the Commission, towards putting the merger or acquisition into effect, or from further putting it into effect, or (b) to take such actions as may be specified by the Commission for the purpose of mitigating the impact of any step already taken by such undertaking towards putting the merger or acquisition into effect, and without prejudice to the generality of the foregoing includes— (i) imposing on the undertaking obligations as to the carrying on of any activities or the safeguarding of any assets, (ii) providing for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the measure) or in any other manner, and (iii) imposing obligations preventing the undertaking from— (I) closing or selling sites, (II) selling or failing to maintain equipment, (III) degrading service levels, (IV) terminating the employment of key employees, (V) integrating IT systems, (VI) failing to participate in a tender process, (VII) discontinuing products, or (VIII) exchanging confidential commercially sensitive information.”.
\n
Amendment of section 19 of Principal Act 16. Section 19 of the Principal Act is amended— (a) in subsection (1), by the insertion of “or in relation to which the Commission has made a requirement under section 18A(1) before it is put into effect,” after “in accordance with that subsection,”, (b) by the substitution of the following subsection for subsection (2): “(2) Any such merger or acquisition which purports to be put into effect, where that putting into effect contravenes subsection (1), is void and shall remain void— (a) until the Commission informs the undertakings which made the notification that the merger or acquisition may be put into effect in accordance with section 21(2)(a), or (b) where the Commission makes a determination pursuant to section 21(2)(b) to carry out an investigation under section 22 in relation to the merger or acquisition, until a determination is issued under paragraph (a) or (c) of section 22(3).”, (c) in subsection (6)(b), by the substitution of “a notification of a merger or acquisition, a requirement or requirements of one or more of the undertakings involved in such merger or acquisition” for “the notification of the merger or acquisition concerned under section 18, a requirement or requirements of one or more of the undertakings concerned”, (d) by the insertion of the following subsections after subsection (6): “(6A) For the purposes of subsection (6), a requirement made under section 20(2) shall be deemed to be complied with on and from the date on which the Commission was provided with a certification under section 20(2)(b)(ii) where— (a) the Commission confirms, by way of a notification under section 20(2)(c), that it is satisfied that the requirement to which the certification relates has been complied with, or (b) the Commission does not issue a notification under section 20(2)(c) within 10 working days of being provided with the certification. (6B) Where the Commission confirms, by way of a notification under section 20(2)(c), that it is not satisfied that a requirement to which the certification relates has been complied with— (a) the requirement shall be deemed not to be complied with for the purposes of subsection (6A), and (b) the Commission may request additional information relating to that requirement from the person or undertaking of whom the requirement was made. (6C) Where, having received additional information requested under subsection (6B), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes of subsection (6A) on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.”,
\n
and (e) by the insertion of the following subsections after subsection (9): “(10) Where a merger or acquisition is put into effect, or purports to be put into effect, in contravention of subsection (1) the undertaking or undertakings that have put the merger or acquisition into effect, or the person in control of such undertaking (within the meaning of section 18(11)), shall be guilty of an offence and shall, subject to subsection (11), be liable— (a) on summary conviction, to a fine not exceeding €3,000, (b) on conviction on indictment, to a fine not exceeding €250,000.
\n
(11)Subsection (10) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the undertaking or 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 (10) shall have effect as if— (a) in paragraph (a) of that subsection, ‘€300’ were substituted for ‘€3,000’, and (b) in paragraph (b) of that subsection, ‘€25,000’ were substituted for ‘€250,000’.”.
\n
Amendment of section 20 of Principal Act 17. Section 20 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (2): “(2) (a) Where the Commission is of the opinion that it requires, in order to consider a merger or acquisition for the purposes of this Part, further information from— (i) any one or more of the undertakings involved in the merger or acquisition, or (ii) any other person or undertaking that it considers may have information relevant to the Commission’s consideration of the merger or acquisition, it may require, by notice in writing served on that person or that undertaking, to provide to it, within such period as it specifies, specified information that is in the power or control of that person or that undertaking. (b) Where the Commission makes a requirement of a person or undertaking under paragraph (a)— (i) the person or undertaking of whom such a requirement is made shall comply with it, and (ii) the following person shall certify in writing that, to the best of his or her knowledge and belief, the person or undertaking has complied with a requirement under this section: (I) where the undertaking is a body corporate, a director or other similar officer of the undertaking or a person who purports to act in such capacity; (II) where the undertaking is a partnership, a partner in the partnership; (III) in the case of a form of undertaking other than a body corporate or a partnership, the individual in control of the undertaking; (IV) where the request is made of a natural person, the person. (c) The Commission shall, within 10 working days from the date on which it is provided with a certification under paragraph (b)(ii), notify the person providing that certificate whether or not it is satisfied that the requirement to which the certification relates has been complied with.”, (b) by the substitution of the following subsection for subsection (2A): “(2A) If, before the expiration of the period specified in a notice under subsection (2), an undertaking on which, or person on whom, the notice was served requests, in writing, an extension to the specified period, the Commission may, where it considers it appropriate to do so, extend that period, and where such an extension is granted that undertaking or person shall comply with the requirement under subsection (2) within the specified period as so extended.”, and (c) in subsection (2B), by the substitution of “an undertaking or person referred to in subsection (2A)” for “the undertaking or undertakings concerned”.
\n
Amendment of section 22 of Principal Act 18. Section 22 of the Principal Act is amended— (a) by the insertion of the following subsection after subsection (3): “(3A) Where, on completion of a full investigation in relation to a merger or acquisition— (a) that has been put into effect without the Commission having issued a determination under section 21(2)(a) or 22(3)(a) or (c), and (b) that is a merger or acquisition— (i) to which paragraph (a) or (b) of section 18(1) applies, or (ii) that has been notified to the Commission in accordance with section 18(3), 18(3A) or 18A(1), the Commission finds that the result of the merger or acquisition will be to substantially lessen competition in markets for goods or services in the State, the Commission may— (I) determine that the merger or acquisition should be unwound or dissolved, and the manner in which such unwinding or such dissolution shall occur, including through the dissolution of the merger or the disposal of all the shares or assets acquired, so as to restore the situation prevailing prior to the merger or acquisition being put into effect, or (II) where it is not possible to unwind or dissolve the merger or acquisition, determine that the undertakings involved in the merger or acquisition shall take such steps as are appropriate to achieve restoration as far as practicable of the situation prevailing before the merger or acquisition was put into effect.”, (b) in subsection (4A), by the substitution of “a requirement or requirements of an undertaking involved in the merger or acquisition concerned” for “a requirement or requirements of one or more of the undertakings concerned”, and (c) by the insertion of the following subsections after subsection (4A): “(4AA) For the purposes of subsection (4A), a requirement under section 20(2) shall be deemed to be complied with on and from the date on which the Commission was provided with a certification under section 20(2)(b)(ii) where— (a) the Commission confirms, by way of a notification under section 20(2)(c), that it is satisfied that the requirement to which the certification relates has been complied with, or (b) the Commission does not issue a notification under section 20(2)(c) within 10 working days of being provided with the certification. (4AB) Where the Commission confirms, by way of a notification under section 20(2)(c), that it is not satisfied that a requirement to which the certification relates has been complied with— (a) the requirement shall be deemed not to be complied with for the purposes of subsection (4A), and
\n
(b) the Commission may request additional information relating to that requirement from the person or undertaking of whom the requirement was made. (4AC) Where, having received additional information requested under subsection (4AB), the Commission considers that a requirement has been complied with, the requirement shall be deemed to be complied with for the purposes of subsection (4A) on and from the date on which the Commission so notifies the person or undertaking subject to the requirement.”.
\n
Amendment of section 47B of Principal Act 19. Section 47B of the Principal Act is amended, in subsection (2), by the substitution of the following paragraph for paragraph (b): “(b) the power to prosecute an offence under section 6 or 7, or to pursue administrative sanctions proceedings or for relief under section 14.”.
\n
Amendment of section 47E of Principal Act 20. Section 47E of the Principal Act is amended, in subsection (1), by the substitution of “Part 2 (section 4(3) excepted), Part 2C and Part 2D” for “Part 2 (section 4(3) excepted)”.
\n
Insertion of section 47H in Principal Act 21. The Principal Act is amended by the insertion of the following section after section 47G: “Liability of competent authority and associated persons and indemnity for associated persons 47H. (1) This section applies to the following persons: (a) the competent authority; (b) the members of the competent authority (including the chairperson); (c) adjudication officers under this Act; (d) employees of the competent authority; (e) agents of the competent authority.
\n
(2)A person to whom this section applies is not liable for damages and no proceedings may be maintained against them in which it is claimed that the person is liable in damages (whether such liability is enforceable by action or not), for anything done or omitted to be done in the performance or purported performance or exercise or purported exercise of any of their functions or powers under Parts 2C to 2G, unless it is proved that the act or omission was in bad faith.
\n
(3)Notwithstanding any subsequent court determination as to whether an act or omission was otherwise than in good faith, where a competent authority is satisfied that a person to whom this section applies (other than a competent authority) has discharged his or her duties in pursuance of the functions of the competent authority under Parts 2C to 2G in good faith, the competent authority may, in the manner and to the extent and subject to the terms and conditions that the competent authority may determine from time to time in consultation with the Minister, indemnify that person against all actions or claims (including as to costs) however they arise in respect of the discharge by him or her of his or her duties.”.
\n
Amendment of section 52 of Principal Act 22. Section 52 of the Principal Act is amended— (a) by the substitution, in subsection (1), of “Subject to subsection (3), the Minister may” for “The Minister may”, and (b) by the insertion of the following subsection after subsection (2): “(3) In relation to any matter referred to in Parts 2C to 2H as prescribed, to be prescribed or otherwise to be provided for by the Minister in regulations— (a) where the regulations in question relate wholly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to, the Commission, such regulations may be made by the Minister after consulting with the Minister for the Environment, Climate and Communications, (b) where the regulations in question relate wholly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to, the Commission for Communications Regulation, such regulations may be made by the Minister for the Environment, Climate and Communications after consulting with the Minister, and (c) where the regulations in question relate jointly to the composition, rules, procedures, staffing, functions or duties of, or any other matter relating to both the Commission and the Commission for Communications Regulation, such regulations may be made by the Minister after consulting with the Minister for the Environment, Climate and Communications, and in this Act, ‘relevant Minister’ shall accordingly be interpreted as the Minister or the Minister for the Environment, Climate and Communications as the case may be.”.
\n
Non-applicability of limitation periods to certain actions 23. The Principal Act is amended by the insertion of the following section after section 55: “55A. (1) The matters referred to in subsection (2) may be brought, made or taken, as the case may be, by the competent authority at any time, notwithstanding— (a) any provision (other than section 11A) of the Statute of Limitations Act 1957 , and (b) any provision of the Statute of Limitations (Amendment) Act 1991 .
\n
(2)Subsection (1) applies to the following matters: (a) an action under section 14A; (b) issuing a prohibition notice under section 15H; (c) a referral under section 15M.”.
\n
PART 4
\n
Amendments to Act of 2014 Amendment of section 2 of Act of 2014 24. Section 2 of the Act of 2014 is amended by the insertion of the following definitions: “‘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; ‘relevant competition law’ has the same meaning as it has in the Act of 2002;”.