(b) a person who is appointed by the Minister, under and in accordance with this section, as an adjudicator being appointed as an adjudication officer or Chief Adjudication Officer under the Act of 2002.
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(5)The Minister may make regulations providing for the creation of a panel of adjudicators to perform the functions of adjudicators under this Act.
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(6)If no Chief Adjudicator stands appointed by the Commission under this section the adjudicators standing appointed may agree that one of them perform the functions of Chief Adjudicator.
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Independence of adjudicators 77. (1) Adjudicators shall be independent in the performance of their functions.
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(2)The Commission shall put in place measures to ensure— (a) the independence of adjudicators in the performance of their functions, and (b) the effective implementation of, and adherence to, any regulations made under section 80 .
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(3)Where an adjudicator believes that performing any of his or her functions as an adjudicator in particular administrative sanctions proceedings would potentially create a conflict of interest, then the adjudicator shall recuse himself or herself from the proceedings in question and shall notify the Commission and the parties concerned of the recusal.
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(4)Where an adjudicator believes that performing any of his or her functions as an adjudicator would give rise to the perception of any potential conflict of interest, the adjudicator shall disclose that fact to the Commission and to the parties concerned in the matter with which the adjudicator is dealing, and shall, having regard to any submissions received from the person concerned or from the Commission, consider whether it is necessary to recuse himself or herself from the proceedings in question.
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(5)An adjudicator shall not make an adjudication where that adjudicator has been involved in any decision of the Commission whether or not to exercise any of the powers referred to in Chapter 2 or
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Part 6
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for the purposes of an investigation in relation to the matter the subject of the adjudication.
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(6)An adjudicator shall not, during the period of his or her appointment, draw up or decide upon— (a) guidelines under section 98 (other than subsection (1)(g)), or (b) the policy of the Commission concerning— (i) the bringing of criminal prosecutions, the referral of matters to the Director of Public Prosecutions or the making of referrals under section 68
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(3)(c) or 71 , and (ii) administrative sanctions that may be imposed under section 91 , but may be consulted in the drawing up or deciding upon of such policy or guidelines, as the case may be.
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(7)Where a decision of the Commission referred to in subsection (5) is made as a college, or in any other manner whereby a decision of the Commission is treated as having been made by all members of the Commission, a member of the Commission who recused himself or herself from the process of making that decision shall, for the purposes of subsection (5), be deemed not to have been involved in that decision, provided that the recusal took place at a point and in a manner which does not compromise the independence of the member of the Commission as an adjudicator.
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(8)The chairperson of the Commission shall not during his or her term of office serve as an adjudicator.
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(9)A member of the Commission may not during his or her term of office serve as Chief Adjudicator.
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(10)A member of the Commission or a member of staff of the Commission who is appointed as an adjudicator or is appointed to assist an adjudicator under section 81 shall not be required by the Commission or by any other person to perform any duty, including any statutory duty, of a member of the Commission or a member of staff of the Commission or of an authorised officer or of an adjudicator the performance of which interferes with his or her independence in making an adjudication or, in the case of a person appointed to assist an adjudicator under section 81 , the independence of an adjudicator whom he or she is assisting or may assist.
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Regulations to ensure independence of adjudicators 78. (1) The Minister shall make regulations prescribing requirements to be imposed upon the Commission and adjudicators to implement section 77 .
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(2)Adjudicators shall not be involved in investigations of regulatory breaches and shall not act as authorised officers under section 39 of the Principal Act subject to such exceptions as the Minister may prescribe.
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(3)Regulations under this section may make further provision for the independence of adjudicators (including an effective internal separation between the functions of the Commission and the functions of adjudicators) and any such regulations shall (where appropriate) include provision for— (a) a requirement that adjudicators, and employees of the Commission tasked with assisting adjudicators, shall not communicate with authorised officers, employees and members of the Commission in respect of any proceeding relating to a regulatory breach before the Commission arising under this Act save on notice to the persons concerned in those proceedings the subject of a referral under section 68
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(3)(c) or 71 , or as otherwise permitted by regulations, which may include communications relating to investigations in which the adjudicators, and employees of the Commission tasked with assisting the adjudicators, have not been nor will be involved in any decision under section 71 , (b) a requirement that documentation and other information concerning an investigation conducted under Chapter 2 which have been obtained by the Commission in the performance of its functions under this Act, shall not be disclosed to adjudicators that have been directed to make an adjudication in relation to that same investigation or to employees of the Commission or other persons (including any consultant or adviser) tasked with assisting such adjudicators save in accordance with this Act and upon notice to the persons concerned in any referral under section 68
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(3)(c) or 71 , (c) arrangements for oversight by specified members or employees of the Commission for compliance by the Commission with the provisions of section 77 , (d) reporting to the Minister or the Commission by specified members or employees of the Commission or by adjudicators of any breach of section 77 and for remedying any such breach, (e) a requirement that the Commission publish policies and implement measures sufficient to identify and manage conflicts of interest on the part of— (i) adjudicators, and (ii) any employee of the Commission or other person (including any consultant or adviser) tasked with assisting an adjudicator in the performance of his or her functions under this Act, and (f) a requirement that the Chief Adjudicator and the Commission report annually to the Minister on the Commission’s compliance with the principle of independence under section 77 and any regulations made hereunder and the policies the adjudicators or the Commission have adopted in order to do so.
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Adjudicators may sit together 79. The powers and functions of an adjudicator shall be exercisable by each adjudicator for the time being standing appointed save that the Chief Adjudicator may direct that an uneven number of adjudicators sit together for the purpose of a particular adjudication or part of an adjudication and where the Chief Adjudicator so directs the functions of an adjudicator for that purpose shall be performed by those adjudicators sitting together.
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Regulations in relation to adjudicators 80. The Minister shall, in a manner ensuring the independence of adjudicators in the performance of their functions, make regulations to provide for each of the following: (a) the term of appointment of adjudicators (including the term of appointment of a Chief Adjudicator), which term shall be specified in the instrument of appointment, and may be— (i) fixed and non-renewable, or (ii) fixed and renewable based upon objective, independently assessed competence-based criteria prescribed by the Minister under section 75
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(3). (b) the remuneration of the Chief Adjudicator and other adjudicators, which remuneration may— (i) not be reduced during the term of their appointment save in accordance with law, and (ii) vary depending on the category of person prescribed by the Minister under section 75
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(3)into which the adjudicator falls; (c) such prohibitions on remuneration of adjudicators during their term of office, by persons or bodies other than the Commission, as are necessary to ensure that actual or perceived conflicts of interest do not arise in the performance of the adjudicator’s functions; (d) the renewal of appointment of adjudicators, including criteria for such renewal; (e) the resignation from office of adjudicators; (f) procedures and criteria whereby the revocation of appointments of adjudicators may only take place upon decision by the Government after independent assessment and recommendation by persons outside the Commission with relevant experience and expertise and where— (i) the adjudicator concerned has become incapable through ill-health of effectively performing his or her functions, (ii) the adjudicator concerned has engaged in serious misconduct, or (iii) the Commission has been notified of an adjudicator’s conflict of interest in more than one matter, which conflict of interest is assessed to be likely to continue, without prejudice to the automatic removal from office as an adjudicator of an employee of the Commission upon cessation of that employment; (g) the functions of the Chief Adjudicator; (h) the rules concerning adjudications by adjudicators sitting together; (i) the rules concerning promotion and increments of employees of the Commission who act as adjudicators; (j) the rules concerning the tasking of any employee of the Commission to assist an adjudicator in their performance of his or her functions under this Act; (k) the rules concerning the appointment of consultants or advisers for the purpose of assisting an adjudicator in the performance of his or her functions under this Act.
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Assistants to adjudicators 81. (1) The Commission may from time to time— (a) require any employee of the Commission, or (b) appoint such persons (including any consultant or adviser) as it considers necessary, to assist adjudicators, or an individual adjudicator (including the Chief Adjudicator), in the performance of functions under this Act.
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(2)Persons assisting an adjudicator in accordance with subsection (1) shall not provide such assistance in connection with any matter in which they have or may have a conflict of interest.
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(3)The Chief Adjudicator may at any time direct that an employee of the Commission required to assist the adjudicators, or an individual adjudicator, under subsection (1)(a) in the performance of powers and functions under this Act, be reassigned by the Commission.
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(4)Persons required to, or appointed to as the case may be, assist adjudicators under subsection (1) may perform other tasks on behalf of the Commission, including performing tasks in any investigation in which they have not been, and will not be, involved in assisting an adjudicator under this section, but they shall be solely responsible to the Chief Adjudicator, or to the adjudicator or adjudicators to which they have been individually assigned, in relation to providing assistance in accordance with subsection (1).
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(5)Employees of the Commission who have been required to assist adjudicators under subsection (1)(a) and persons appointed by the Commission to assist adjudicators under subsection (1)(b) shall not be subject to the direction of any member or employee of the Commission, (other than, where such member or employee is the adjudicator) in relation to the performance of the functions referred to in that subsection.
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(6)Nothing in subsection (5) shall preclude an employee of the Commission or other person appointed by the Commission being subject to the direction of a member or employee of the Commission in relation to the performance of functions not referred to in subsection (1)(a).
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(7)Without prejudice to the responsibility of the Commission for employment and for entering into contracts and determining all matters relevant thereto, where an adjudicator has made a determination that specific assistance is required in a particular matter referred to the adjudicator for a decision under section 90 , the adjudicator shall be consulted on decisions concerning the appointment and assignment of a person to provide assistance to the adjudicator.
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(8)The Minister may prescribe detailed requirements governing the appointment and assignment of persons to assist adjudicators under subsection (1)(b).
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(9)The Minister may, where it is necessary to enable the proper functioning of the Commission, make regulations prescribing such limited exceptional circumstances in which persons referred to in subsection (5) may be subject to a direction referred to in that subsection.
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Effect of appointment as adjudicator on terms of employment or contract with Commission 82. (1) Nothing in this Part shall preclude the Commission from relying on any aspect of a contract of service or contract for services in relation to the performance or non-performance of tasks other than— (a) the functions of an adjudicator under this Act, and (b) the functions of a person required to assist adjudicators under section 81
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(1)(a) when assisting an adjudicator.
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(2)The appointment of a person as an adjudicator shall not in itself— (a) constitute employment by or within the Commission, (b) constitute the holding of a position in the civil service, or (c) otherwise create a contract between an adjudicator on the one part and the Minister or the Commission on the other part.
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(3)Save in relation to the application of independence requirements to an adjudicator, nothing in this Part shall alter the terms and conditions of employment of an adjudicator who is an employee of the Commission on the date on which this section comes into operation.
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(4)Save for such limited exceptions consistent with the independence of adjudicators in the performance of their functions that the Minister may prescribe, nothing in this Part shall prevent the application by the Commission of disciplinary procedures under a contract of employment save in respect of— (a) the tasks of an adjudicator under this Act, and (b) the tasks of a person required to assist adjudicators under section 81
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(1)(a) when assisting an adjudicator.
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(5)The Minister may make regulations to give further effect to this section.
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Chapter 4
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Procedure following referral to adjudicator Notification by adjudicator following referral 83. As soon as practicable after a referral is made to an adjudicator under s ection 68
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(3)(c) or 71, the adjudicator shall serve on the notified person— (a) a copy of this section, (b) in the case of a referral under s ection 68
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(3)(c), a notice in writing stating that the matter has been referred for an adjudication on consent under section 109 , and asking the person to confirm the matters set out in the report prepared in accordance with section 68
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(3)(a) within the period of 15 days from the date of service of the notice, or such further period, not exceeding 7 days, as the adjudicator may specify in the notice, and (c) in the case of a referral under section 71 , a notice in writing stating that the person may make written submissions to the adjudicator on the referral report within the period of 30 days beginning on the date of service of the notice, or such further period, not exceeding 15 days, as the adjudicator may specify in the notice.
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Actions following referral under s ection 68(3)(c) 84. Where a notified person served with a notice in accordance with section 83 (b) confirms the matters set out in the report prepared in accordance with section 68
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(3)(a), an adjudicator may, at any time following such confirmation, impose on the person, in accordance with the report any of the following: (a) a requirement to cease the regulatory breach or to take specified measures to remedy the breach; (b) a financial penalty in accordance with section 94 ; (c) a requirement to pay a refund in accordance with section 95 ; (d) a requirement to pay compensation in accordance with section 96 ; (e) a suspension or withdrawal of authorisation or rights of use for radio spectrum or rights of use for numbers, in accordance with section 97 .
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Actions following referral under section 71 85. (1) In the case of a referral under section 71 the adjudicator may do any of the following that he or she considers necessary to resolve an issue of fact or otherwise enable the adjudicator to make an adjudication: (a) exercise any of the powers under section 87 ; (b) request further information from the person concerned; (c) request further information from any other person, and may, for the purposes of doing so, provide, with due regard for the protection of commercially sensitive information, a copy of the referral report to the person; (d) conduct an oral hearing.
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(2)Where there is a dispute of fact which cannot be successfully resolved in accordance with paragraphs (a) to (c) of subsection (1) the adjudicator concerned shall, on the request of the notified person, conduct an oral hearing in order to resolve the dispute.
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(3)Where an oral hearing takes place at which a person may make submissions to the adjudicator on the referral report, the adjudicator shall not be required to give to the person the material referred to in subsection (5).
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(4)As soon as practicable after making a request under subsection (1)(c), the adjudicator shall give to the Commission, and shall, with due regard for the protection of commercially sensitive information, give to the notified person, a copy of the request.
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(5)As soon as practicable after receiving any information pursuant to a request under subsection (1)(c), the adjudicator shall, with due regard for the protection of commercially sensitive information, give the Commission and the person— (a) a copy of the information or, where commercial confidentiality means that such information cannot be provided in full, a summary of such information, and (b) written notice stating that the Commission and the person may make written submissions to the adjudicator on the information within the period of 21 days beginning on the date of service of the notice, or such further period, not exceeding 14 days, as the adjudicator may specify in the notice.
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(6)A person who receives a copy of a report under subsection (1)(c), shall not, without the prior authorisation of the adjudicator, disclose the existence or the content of the report to any other person.
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(7)A person who contravenes subsection (6) commits an offence and is liable on summary conviction to a class A fine.
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(8)An adjudicator may direct an employee of the Commission who has been required under section 81
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(1)(a) to assist the adjudicator in the performance of his or her functions to make any communication on his or her behalf.
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Admissibility of evidence and rules for oral hearings conducted by adjudicators 86. (1) This section applies to an oral hearing before an adjudicator.
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(2)An adjudicator may, by notice, in writing— (a) summon a witness to appear to give evidence, or to produce before the adjudicator any books, documents or records in such person’s power or control, or to do both, and (b) require the witness to attend an oral hearing from day to day unless excused, or released from further attendance, by the adjudicator.
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(3)An adjudicator may require evidence to be given on oath or affirmation, and may for that purpose— (a) require a witness to take an oath or affirmation, and (b) administer an oath to the witness orally or permit the witness to affirm.
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(4)The oath or affirmation to be taken by a witness for the purposes of this section is an oath that the evidence the witness will give shall be true.
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(5)The adjudicator may allow a witness at the oral hearing to give evidence by tendering a written statement, provided such statement is verified on oath or affirmation.
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(6)Without prejudice to subsections (1) to (5), the adjudicator has the same powers, rights and privileges as a judge of the High Court when hearing civil proceedings on the occasion of that action including with respect to— (a) the attendance and examination of witnesses on oath or affirmation or otherwise (including witnesses who are outside the State), and (b) compelling the production (including discovery) of records or an identified category or categories of records.
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(7)An oral hearing under this section may, at the discretion of the adjudicator, be held remotely (including in an online format), and evidence may be tendered as permitted by regulations or by an adjudicator.
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(8)At the oral hearing before the adjudicator— (a) an authorised officer or other representative of the Commission or any other person, with leave of the adjudicator, shall present the evidence in support of the referral, and (b) the testimony of witnesses attending the oral hearing shall be given in accordance with this section and any regulations made under this section.
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(9)A person to whom notice is given under subsection (2), or an authorised officer, may be examined and cross-examined at the oral hearing.
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(10)At any oral hearing before an adjudicator, there shall be a right to cross-examine witnesses and call evidence in defence and reply.
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(11)An oral hearing before an adjudicator shall be held in public unless the adjudicator is satisfied that, given the existence of special circumstances (which shall include whether information given or likely to be given in evidence is commercially sensitive information), the hearing or part of the hearing should be held otherwise than in public.
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(12)If special circumstances exist (which shall include whether information given or likely to be given in evidence is commercially sensitive information), an adjudicator may impose restrictions on the reporting or distribution of information given at the hearing.
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(13)The payment or reimbursement of, or of any part of, the reasonable travelling and subsistence expenses of a witness required to attend an oral hearing, is at the discretion of the adjudicator, and such expenses shall be discharged by the Commission.
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(14)The rules of evidence shall apply to an oral hearing before an adjudicator save as may be otherwise prescribed.
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(15)Nothing in this section compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession, power or control.
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(16)The Minister may make regulations setting out further details or conditions for the receipt of evidence or the conduct of oral hearings under this section.
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(17)Subject to any regulations under subsection (16), the Commission shall make rules providing for the conduct of an oral hearing under this section and shall publish such rules on the website of the Commission.
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(18)Rules made under subsection (17) shall not have effect until they are published.
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Powers of adjudicators and offences 87. (1) At any time after a referral under section 69 an adjudicator may, on an application by the Commission or the notified person or of the adjudicator’s own motion, where the adjudicator is satisfied that such direction is necessary for the determination of the issues before the adjudicator— (a) direct authorised officers of the Commission, or the notified person (each of which, in this section, is referred to as a “party”) to answer (whether on oath or affirmation or otherwise) an identified question or questions in whatever manner or form the adjudicator may specify, (b) direct a party to adduce evidence or produce books, documents and records in its power or control, and (c) direct a party to clarify any issue of fact that an adjudicator may deem necessary.
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(2)An answer to a question put to a person in response to a direction under subsection (1)(a) is not admissible as evidence against the person in criminal proceedings, other than proceedings for perjury in circumstances where the contested response or information was provided on oath or affirmation.
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(3)A summons issued by the adjudicator for the purpose of an oral hearing under section 86 may be substituted for, and is the equivalent of, any formal process capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of records.
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(4)A person the subject of a direction under this section shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in this section as a witness appearing in proceedings before the Court.
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(5)A person commits an offence if the person— (a) is served with a notice under section 86
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(2)and does not comply with that notice, (b) is subject to a direction under subsection (1) and fails to comply with such direction, (c) having been duly summoned to attend before an adjudicator under section 86
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(2)fails without reasonable excuse to attend at the time and place indicated on the summons, (d) while attending as a witness before an adjudicator at an oral hearing under section 86 refuses to— (i) give evidence in the manner lawfully required by the adjudicator to be taken, (ii) produce any record in the person’s power or control that the person is lawfully required by the adjudicator to produce, or (iii) answer any question that the person is lawfully required by the adjudicator to answer, or (e) while attending before the adjudicator engages in any conduct that, if the adjudicator were a court of law having power to punish for contempt, would be contempt of court.
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(6)Where a person fails to comply with a requirement of an adjudicator under section 86 , with a direction under subsection (1), or with a summons to attend before an adjudicator, or refuses, while attending as a witness before the adjudicator, to do anything referred to in subsection (5) that the person is lawfully required by an adjudicator to do, or otherwise fails to comply with a direction of the adjudicator, the Court, on summary application by a party, on notice to that person, may— (a) by order require the person to attend before the adjudicator or to do the thing that the person refused to do, as the case may be, within a period to be specified by the Court, and (b) make such interim or interlocutory orders as it considers necessary for that purpose.
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(7)A person commits an offence if, having been, or in anticipation of being, required to produce a book, document or record under subsection (1) or under section 86
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(2), he or she intentionally or recklessly destroys or otherwise disposes of, falsifies or conceals such book, document or record or causes or permits its destruction, disposal, falsification or concealment.
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(8)If information or evidence is provided by a person to an adjudicator in connection with any function of an adjudicator under this Part, that person commits an offence if— (a) the information or evidence is false or misleading in a material respect, and (b) the person knows, or ought reasonably to know, that it is false or misleading in a material respect.
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(9)A person who provides any information to another person, knowing the information to be false or misleading in a material respect, or who recklessly provides any information to another person which is false or misleading in a material respect, knowing the information is to be used for the purpose of providing information to an adjudicator in connection with any of his or her functions under this Act, commits an offence.
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(10)A person who commits an offence under subsection (5), (7), (8) or (9) is liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000 or both.
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(11)Proceedings may be brought for an offence under this section regardless of whether or not an order has been made, or has been applied for, under subsection (6).
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(12)The Minister may make regulations setting out further details or conditions for the exercise of the powers of adjudicators under this section.
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(13)In this section, “Court” means the High Court.
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Orders for costs in proceedings before adjudicator 88. (1) No order as to costs shall be made in proceedings before an adjudicator save that an adjudicator may in his or her discretion award the costs of proceedings before an adjudicator against a respondent person or, as the case may be, the Commission if the adjudicator finds that the person or the Commission has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged regulatory breach or in the conduct of proceedings before the adjudicator.
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(2)A requirement to pay costs under subsection (1) shall be proportionate to the nature and extent of the conduct that the person or, as the case may be, the Commission is found to have engaged in, and may be limited to a proportion of the overall costs of proceedings or to the costs of a particular part of the proceedings.
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Regulations in relation to proceedings before adjudicator 89. (1) The Minister may make regulations setting out detailed requirements in relation to decisions of an adjudicator under sections 90 and 91 , in order to implement this section and otherwise in relation to the conduct of proceedings before an adjudicator in any matter referred to an adjudicator under section 71 (in this section referred to as “proceedings”), having regard to the need for efficiency and the rights of the defence, including but not limited to all or any of the following: (a) the form and manner of provision of information, records, documents, statements, admissions and evidence to be provided to the Commission or to the adjudicator; (b) time limits to apply to the making and conduct of proceedings; (c) the attendance of witnesses at an oral hearing; (d) the form, and manner of making, of requests by an adjudicator for information, discovery or disclosure from a party to a proceeding, or a person other than a party; (e) the provision by the Commission, or by an adjudicator, to a party to proceedings, or a person other than a party to proceedings, of information received by the adjudicator or the Commission; (f) procedures for the consolidation and hearing of two or more proceedings together; (g) procedures for the separation of proceedings; (h) the publication on the website of the Commission of information and documents provided, for the purposes of proceedings, by a party to a proceeding or by a person other than a party to proceedings; (i) the form and manner in which a proceeding may be withdrawn; (j) any consequential, supplementary or transitional provisions as appear to the Minister to be necessary or expedient for the purpose of giving effect to the regulations.
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(2)The Commission shall publish guidelines on the conduct of proceedings and may publish guidelines on any of the matters the subject of regulations under subsection (1).
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Decision of adjudicator in relation to breach 90. (1) An adjudicator shall consider the following when making a decision in relation to a matter referred to him or her under section 71 : (a) the notice of suspected non-compliance served under section 63 (and any supplementary notice of suspected non-compliance served under section 64 ); (b) the referral report; (c) any written submissions made by the notified person on the notice of suspected non-compliance, any supplementary notice of suspected non-compliance and the referral report; (d) any submissions, statements, admissions, information, records or other evidence provided to the adjudicator in the course of the proceedings; (e) any prior relevant adjudication that has been confirmed by the High Court under section 109 .
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(2)In any matter referred to an adjudicator under section 71 the adjudicator may make a decision as to whether, on the balance of probabilities, a person has committed or is committing a regulatory breach.
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(3)Where— (a) an adjudicator makes a decision under this section that a person has committed or is committing a regulatory breach, and (b) the regulatory breach concerned constitutes a criminal offence, the person found to have committed, or be committing, the regulatory breach shall not be prosecuted for the criminal offence constituted by the regulatory breach.
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(4)A decision under subsection (2) shall be dated and include— (a) the reasons for the decision, (b) the notice of suspected non-compliance and any supplementary notice of suspected non-compliance, (c) the evidence, including any information, records, documents, statements, admissions, evidence and written and oral submissions, considered, (d) information regarding the right of appeal provided for under section 106 where a final decision has been made, (e) the name of the person found to have committed, or to be committing, a regulatory breach, and the nature of the breach, and (f) such other particulars or material as the adjudicator considers appropriate.
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(5)For the avoidance of doubt, a decision may be made under subsection (2) or section 91
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(1)in relation to conduct that is no longer ongoing at the time at which the decision is made.
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Decision of adjudicator in relation to administrative sanction 91. (1) Where an adjudicator makes a decision under section 90
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(2), that a person has committed a regulatory breach he or she may, subject to this section, do one or more of the following: (a) require the person to cease the regulatory breach or to take specified measures to remedy the breach; (b) impose a financial penalty on the person in accordance with section 94 ; (c) require the person to pay a refund to a third party in accordance with section 95 ; (d) require the person to pay compensation to a third party in accordance with section 96 ; (e) suspend or withdraw the person’s authorisation to provide electronic communications networks or services (other than number-independent interpersonal communications services) or some or all of the person’s rights of use for radio spectrum and of use for numbering resources in accordance with section 97 .
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(2)A decision under this section shall specify the time period within which the person is required, subject to any appeal, to cease a regulatory breach or to take specified measures to remedy the breach or to pay any financial penalty, refund or compensation.
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(3)In determining the amount of any financial penalty to be imposed the adjudicator shall have regard to the matters outlined in section 94 .
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(4)After reaching a decision under section 90
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(2)and prior to making a decision under subsection (1), the adjudicator shall provide the Commission and the person to whom the decision relates with a copy of the decision under section 90
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(2)and shall inform the Commission and the person of the intention of the adjudicator to do one or more of the things set out in subsection (1).
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(5)The adjudicator shall invite the Commission and the person concerned to make written submissions in accordance with subsections (6) and (8).
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(6)The Commission may, within a period of 15 working days from the date on which the adjudicator invites it to make written submissions in accordance with subsection (5), or within such further period as is considered appropriate by the adjudicator and specified when inviting submissions, make written submissions to the adjudicator in relation to the application of the criteria specified in section 94 , the amount of any financial penalty that may be imposed and in regard to guidelines made by the Commission under section 98
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(1)(b) to (e).
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(7)Where the Commission makes submissions in accordance with subsection (6) the adjudicator shall provide the person concerned with a copy of those submissions.
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(8)The person concerned may— (a) where the Commission does not make submissions in accordance with subsection (6), within the period of 15 working days from the date by which the Commission was invited to make submissions in accordance with that subsection, (b) where the Commission makes submissions in accordance with subsection (6), with the period of 15 working days from the date on which the person is provided with a copy of those submissions, or (c) within such further period as the adjudicator considers appropriate, and specifies when he or she invites written submissions from the person concerned, make written submissions to the adjudicator in relation to the application of the criteria specified in section 94 , the amount of any financial penalty and in regard to guidelines made by the Commission under section 98
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(1)(b) to (e).
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(9)When making submissions in accordance with subsection (6), the Commission may, where it considers that there are, or have been, serious or repeated breaches of conditions by a person found to have committed a regulatory breach, recommend to the adjudicator in writing, that either or both the person’s— (a) general authorisation to provide electronic communications networks or services (other than number-independent interpersonal communications services), or (b) some or all of the person’s rights of use for radio spectrum and of use for numbering resources, be suspended or withdrawn on a temporary or permanent basis.
\n
(10)The adjudicator may by notice in writing request the person concerned to provide, in writing, within a period specified in the notice, such information as the adjudicator considers appropriate for the purpose of determining the administrative sanction to be imposed under subsection (1).
\n
Adjudication to take effect when confirmed by High Court 92. (1) An adjudication shall take effect at the time it is confirmed by the High Court under section 109 subject to any order made by a court on an appeal of the adjudication or on an application for leave to appeal the adjudication.
\n
(2)Where an adjudication has taken effect in accordance with subsection (1) any sanction, including any financial penalty, imposed by such adjudication may be enforced without the need for any further judgment of a court.
\n
(3)Where an adjudication has taken effect in accordance with subsection (1) any financial penalty imposed by such adjudication may be enforced by the Commission as a judgment debt.
\n
(4)Where a person fails to comply with an administrative sanction imposed by an adjudication that has taken effect in accordance with subsection (1) the High Court may, on an application to it by the Commission in that behalf— (a) suspend or withdraw the person’s general authorisation or rights of use, (b) compel compliance with the adjudication and any administrative sanction imposed, or (c) grant any injunctive relief that the Court considers necessary.
\n
(5)The Court may not require the Commission to give an undertaking as to damages as a condition of granting any injunctive relief under subsection (4)(c).
\n
Notice of adjudication 93. (1) As soon as practicable after the adjudicator has made a decision under section 91 , the adjudicator shall provide the Commission with the decision.
\n
(2)The Commission shall within 7 days of receipt of the decision of the adjudicator under section 91 give notice in writing of the decision to the person concerned.
\n
(3)The notice under subsection (2) shall— (a) include a copy of the decision of the adjudicator under section 90
\n
(2). (b) state that, in so far as it imposes any administrative sanction, the adjudication shall not take effect unless it is confirmed by the Court in accordance with section 109 , and (c) state that, if the person does not appeal any administrative sanction imposed by the decision under section 106 , the Commission shall, as soon as is practicable after the expiration of the period for the making of such an appeal, make an application for confirmation of the adjudication in accordance with section 109 .
\n
(4)The Commission may provide a copy of a notice referred to in subsection (2) to a person other than the person concerned where it considers it appropriate to do so.
\n
(5)A copy of the adjudication shall be published on the website of the Commission.
\n
(6)A decision referred to in subsection (1) and a copy of the adjudication referred to in subsection (3) may contain such redactions as the adjudicator considers necessary and appropriate, in respect of subsection (1) on his or her own motion, or in respect of subsection (2) or (3) upon application of the Commission or any of the persons concerned— (a) to protect commercially sensitive information, (b) to protect the rights of the person concerned or any other person, or (c) for any other good and sufficient reason.
\n
(7)A person who receives a copy of a notice under subsection (2) prior to the publication of the adjudication shall not, without the prior authorisation of the adjudicator, disclose the existence or the content of the notice to any other person.
\n
(8)A person who receives a copy of a notice under subsection (2) that contains material redacted from publication under subsection (6) shall not, without the prior authorisation of the adjudicator, disclose the content of the redacted material to any other person.
\n
(9)A person who fails to comply with subsection (7) or (8) commits an offence and is liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000 or both.
\n
Chapter 5
\n
Imposition of administrative sanctions Requirement to pay financial penalty 94. (1) When determining the amount of a financial penalty, an adjudicator shall have regard to— (a) the need to ensure that the financial penalty is— (i) appropriate, (ii) effective, (iii) proportionate to the regulatory breach, and (iv) dissuasive (including whether it will act as a sufficient deterrent to ensure that any similar regulatory breach will not occur in the future), (b) the seriousness of the regulatory breach, (c) in the case of breach by— (i) a person that is not a natural person, the turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred, or (ii) a natural person, the annual income of the person on whom the financial penalty is to be imposed, in the year preceding the year in which the regulatory breach last occurred, (d) the extent of any failure by the person to cooperate with the investigation concerned, whether or not such failure is prosecuted, (e) any excuse or explanation offered by the person for the regulatory breach or failure to cooperate with the investigation concerned, (f) any gain (financial or otherwise) made, or loss avoided, by the person, or by any other person in which the first-named person has a financial interest, as a consequence of the regulatory breach, (g) the amount of any loss suffered, or costs incurred, by any person as a result of the regulatory breach, (h) the effect of the regulatory breach on other operators, consumers and other end-users, (i) the duration of the regulatory breach, (j) the number of times the regulatory breach has occurred, (k) whether or not the regulatory breach continued after the person was served with a notice of suspected non-compliance, (l) where applicable, the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the person intended to prevent such a regulatory breach from occurring, (m) where applicable, the extent and timeliness of any steps taken to end the regulatory breach and any steps taken to remedy the consequences of the regulatory breach, (n) whether a financial penalty in respect of a similar regulatory breach has already been imposed on the person by a court or a competent authority, including by the Commission, (o) any precedents set by a court or a competent authority, including the Commission, in respect of a similar regulatory breach, (p) where applicable, the amount of any compensation paid or to be paid in accordance with
\n
section 96 , (q) any specific factors, criteria or methodology relevant to paragraphs (a) to (o) prescribed by the Minister for the purposes of this subsection, and (r) any guidelines made by the Commission under section 98 in respect of the calculation of the amount of a financial penalty.
\n
(2)The Commission may make rules for the purposes of the implementation of this section.
\n
(3)The adjudicator may, having imposed a financial penalty on a person (in this subsection referred to as the “sanctioned person”) in accordance with this section and where he or she considers that it is necessary to do so in order to ensure that the penalty be appropriate, effective, proportionate and dissuasive, impose the penalty (whether jointly with or separately to the sanctioned person) on either or both of the following: (a) a subsidiary of the sanctioned person; (b) a person of which the sanctioned person is a subsidiary.
\n
(4)The following shall apply for the purposes of this section: (a) “subsidiary” shall have the same meaning as it has in section 7 of the Companies Act 2014 ; (b) where a person is a partnership, for the purposes of the application to it of the definition of “subsidiary”— (i) references to voting rights attaching to shares in a company shall be construed as references to votes or other rights exercisable by the partners in a partnership giving those partners the potential to exercise control or dominant influence over the activities of the partnership, and (ii) references to a company’s constitution shall be construed as references to any agreement or practice governing or concerning the operation of the partnership; (c) where a person is an unincorporated association, for the purposes of the application to it of the definition of “subsidiary undertaking”— (i) references to voting rights attaching to shares in a company shall be construed as references to votes or other rights exercisable by the members of the unincorporated association giving those members the potential to exercise control or dominant influence over the activities of the unincorporated association, and references to a company’s constitution shall be construed as references to the constitution or of any agreement or practice governing or concerning the operation of the unincorporated association, and (ii) references to a company’s constitution shall be construed as references to the constitution or of any agreement or practice governing or concerning the operation of the unincorporated association.
\n
(5)The maximum amount of a financial penalty that an adjudicator may impose on a person under this Part in respect of a regulatory breach shall be— (a) in the case of a person other than a natural person, the greater of €5 million and 10 per cent of the turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred in the State, and (b) in the case of a natural person, the greater of €500,000 and 10 per cent of the annual income of the person on whom the financial penalty is to be imposed, in the year preceding the year in which the regulatory breach last occurred.
\n
Requirement to pay refund 95. (1) Where an adjudicator considers that an end-user has been overcharged for a service as a result of a regulatory breach, the adjudicator may require that the person concerned refund the end-user in part or in full.
\n
(2)No maximum or minimum amount shall apply to any refund under subsection (1).
\n
Requirement to pay compensation 96. (1) This section applies to a requirement to pay compensation in respect of a regulatory breach.
\n
(2)An adjudicator may require compensation to be paid to an end-user in respect of a regulatory breach notwithstanding that the end-user may have received a refund.
\n
(3)When determining the amount of compensation to be paid by a person in respect of a regulatory breach, an adjudicator shall take account of at least the following factors, to the extent that they are relevant to the breach: (a) the need to ensure that the compensation is appropriate and proportionate; (b) the amount of any loss suffered, or costs incurred by any person affected by the breach; (c) the effect of the breach on any person affected by the breach, including any distress, inconvenience or emotional upset caused by the breach; (d) whether the regulatory breach continued after the person was served with a notice of suspected non-compliance; (e) if applicable, the extent and timeliness of any steps taken to end the regulatory breach and any steps taken to remedy the consequences of the regulatory breach; (f) any relevant precedents set by a court or the Commission.
\n
(4)The maximum amount of compensation that a provider may be required to pay to an end-user is €5,000.
\n
(5)Where a regulatory breach is committed by a person other than a natural person the maximum amount of compensation that an adjudicator may require it to pay to all the persons affected by the regulatory breach shall not exceed the greater of— (a) €5,000,000, and (b) 10 per cent of the annual turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred.
\n
(6)Where a regulatory breach is committed by a natural person the maximum total amount of compensation that an adjudicator may require him or her to pay in respect of that breach to all of the persons affected shall not exceed the greater of— (a) €500,000, and (b) 10 per cent of annual income of the person on whom the financial penalty is to be imposed, in the year preceding the year in which the regulatory breach last occurred.
\n
(7)If compensation is required to be paid to more than one person following a finding that a person has committed a regulatory breach and the total amount of such compensation exceeds the maximum limit provided for in subsection (5) or (6), the compensation shall be reduced in proportion to the sum of all claims for compensation against the maximum limit.
\n
(8)Where an adjudicator decides to impose both a financial penalty and a requirement to pay compensationin respect of a regulatory breach the cumulative maximum amount of the financial penalty and compensation shall not exceed the relevant limit set out in subsection (5) or (6).
\n
Suspension or withdrawal of authorisation or rights of use 97. Where an adjudicator receives a recommendation from the Commission under section 91
\n
(9)and the adjudicator considers that there are, or have been, serious or repeated breaches of conditions by a person, the adjudicator may withdraw or suspend, either or both, the general authorisation of a person to provide electronic communications networks or services (other than number-independent interpersonal communications services) and some or all of the person’s rights of use for radio spectrum and of use for numbering resources.
\n
Guidelines 98. (1) The Commission may, subject to this Act and any regulations and rules made under this Act, and having regard to the fairness and efficiency of the procedures under this Part, prepare and make guidelines in relation to any matter provided for by or under this Part, including— (a) the conduct of oral hearings, (b) the imposition of administrative sanctions (including the factors applicable to any financial penalty to be imposed under section 91 , and the method of calculation of financial penalties), (c) the award of compensation, (d) the award of refunds, (e) the suspension or withdrawal of authorisation or rights of use for radio spectrum or rights of use for numbering resources, (f) the decision to carry out an investigation where there is evidence of a breach and the conduct of such investigations, including the content of referral reports and other reports of authorised officers, (g) the general policies of the Commission.
\n
(2)In making an adjudication, subject to this Act and any regulations and rules made under this Act, an adjudicator shall apply guidelines made and published by the Commission under subsection (1) and by BEREC unless the adjudicator considers that there is a good and substantial reason not to do so.
\n
(3)The Commission may amend or revoke guidelines made under subsection (1).
\n
(4)The Commission shall publish any guidelines made under subsection (1), and any amendment to or revocation of those guidelines, on the website of the Commission.
\n
Regulations in relation to certain matters 99. The Minister may provide in regulations for any matter referred to in paragraphs (a) to (f) of section 98
\n
(1).
\n
Chapter 6
\n
Admissibility of certain evidence Admissibility of evidence before Commission 100. (1) The type of proof that is admissible as evidence in proceedings under this Part or the Principal Act (whether criminal or civil, including proceedings before the Commission or an adjudicator) 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 evidence referred to would have been admissible before a court were it before a court.
\n
(2)If a document contains a statement by a person specified in subsection (3) asserting that an act has been done, or is, or was, proposed to be done, by another person, being an act that relates to a regulatory breach (the “relevant act”) then subject to the conditions specified in subsection (4) being satisfied, that statement shall be admissible in proceedings in respect of the regulatory breach as evidence 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 person referred to in subsection (2) is a person who has done an act of the kind referred to in that subsection in relation to the regulatory breach (whether or not the same as the act which the other person referred to in that subsection is alleged to have done or proposed to do).
\n
(4)The conditions referred to 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 Commission, 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 comprises 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 adjudicator 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 adjudicator of any document, as evidence of any matters stated in it— (a) that is so admissible by virtue of any rule of law or other enactment, or (b) in respect of adjudicators, that would be admissible before a Court hearing civil proceedings by virtue of any rule of law or 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 Chapters 1 to 5 and
\n
Part 6
\n
).
\n
Chapter 7
\n
Restrictions on disclosure of certain information Restrictions on disclosure of certain information 101. (1) Where an 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 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 adjudicator, an authorised officer, the Commission and its respective servants or agents shall not, without reasonable excuse, 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 this Part or the Principal Act in relation to an investigation under this Part or the Principal Act where that information was given under power of compulsion.
\n
(3)Notwithstanding subsection (2) an adjudicator, the Commission and its servants or agents may disclose information obtained by virtue of the exercise of powers conferred by or under this Act or the Principal Act where such disclosure is— (a) permitted by this Act or the Principal Act, (b) otherwise permitted by law, or (c) duly authorised by the Commission or an adjudicator 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 adjudicator or the Commission or an authorised officer 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.
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(5)A person who contravenes subsection (2) commits an offence and is liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.
\n
(6)The following categories of information obtained by a party during investigations by an authorised officer, or administrative sanctions proceedings before an adjudicator under this Act, shall not be used by that party in proceedings before a court prior to the authorised officer or the Commission or an adjudicator, as the case may be, having closed such proceedings with respect to all parties under investigation, whether by making a decision under section 90 or section 91 : (a) information that was prepared by persons specifically for investigations by an authorised officer or administrative sanctions proceedings before an adjudicator; (b) information that an authorised officer or an adjudicator has drawn up and sent to the parties in the course of an investigation or administrative sanctions proceedings; (c) settlement submissions that have been withdrawn.
\n
(7)In this section, “applicable provisions” means section 38A and sections 13D and 39 of the Principal Act.
\n
Confidentiality rings 102. (1) Where the Commission or an adjudicator provides, or otherwise makes available, a document to any person, it may specify and so notify the person 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 Commission may specify: (a) the person to whom the document is provided or otherwise made available; (b) a legal adviser, or other professional adviser, of the person to whom the document is provided or otherwise made available; (c) such other person as the Commission may specify.
\n
(3)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 commits an offence and is liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.
\n
Chapter 8
\n
Appeals, confirmation and judicial review of certain decisions Interpretation (Chapter 8 of Part 7) 103. In this Chapter, “Court” means the High Court.
\n
Decisions reviewable only by appeal under this Chapter 104. (1) Neither— (a) an urgent interim measure, nor (b) an adjudication, shall be challenged, including as to its validity, other than by way of an appeal, in the case of an urgent interim measure, under section 105 , or, in the case of an adjudication, under section 106 .
\n
(2)For the avoidance of doubt, in respect of a decision under section 57 , 90 or 91 no proceeding (including an application for judicial review whether in accordance with section 112 or otherwise) may be brought before the courts other than an appeal under section 105 in the case of a decision under section 57 or, in the case of a decision under section 90 or 91 , an appeal under section 106 or an application to have the decision confirmed under section 109 .
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Appeal against urgent interim measures notice 105. (1) A person to whom an urgent interim measure is directed may appeal to the Court against such measure not later than 14 days after the date of service of the urgent interim measures notice under section 57 .
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(2)On application, the Court may extend the period within which an appeal may be brought under subsection (1), where it is satisfied that— (a) there is exceptional, good and sufficient reason for doing so, and (b) 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.
\n
(3)Where an appeal is made under subsection (1)— (a) the appellant may apply to the Court to have the urgent interim measure 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 urgent interim measure or part thereof, be suspended until the appeal is determined, or until such other time as the Court may order.
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(4)In any appeal under subsection (1), the Court may not require the Commission to give an undertaking as to damages as a condition of granting any order.
\n
Appeal against adjudication 106. (1) A person the subject of an adjudication may appeal to the Court against that adjudication not later than 28 days after the date of service of the notice under section 93
\n
(2).
\n
(2)On application, the Court may extend the period within which an appeal may be brought under subsection (1), where it is satisfied— (a) that there is exceptional, good and sufficient reason for doing so, (b) that 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 (c) where an application for confirmation has been brought under section 109 , that the Court has neither heard nor determined such application.
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(3)Where an application for confirmation has been brought pursuant to section 109 in relation to an adjudication the subject of an appeal under this section, the Court may, upon application or of its own motion, stay the proceedings under section 109 .
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(4)Where the Court confirms an adjudication that imposes an administrative sanction, or substitutes its own decision for the adjudication of an adjudicator and, as part of such adjudication, imposes an administrative sanction, the Court may set a time limit for the payment of any financial penalty, compensation or refund required to be paid.
\n
Conduct of appeals 107. (1) The respondent to an appeal shall be the Commission.
\n
(2)A person that brings an appeal,or an application under section 105
\n
(3)(a)— (a) may include in such appeal or application, as the case may be, any ground that could, but for section 104 , be relied upon by the appellant in an application seeking judicial review, and (b) 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.
\n
(3)The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, give directions in respect of the conduct of the appeal.
\n
(4)An appellant shall, when making an 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 the appellant intends to rely to support those grounds.
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(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.
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(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)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— (a) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided under subsections (4) and (5), and (b) provide documents or evidence to the Court other than documents or evidence provided under subsections (4) and (5).
\n
(8)Notwithstanding subsection (7), the Court shall refuse to consider submissions, documents or evidence where it considers that— (a) the submissions, documents or evidence are not relevant to the appeal, or (b) it is appropriate to do so in order to avoid undue repetition of submissions.
\n
(9)Where the Court has granted leave to deliver additional submissions, documents or evidence on an application under subsection (7), the Court shall give directions as to the scope, form and time-frame for delivery of such additional submissions, documents or evidence.
\n
(10)The Court may receive evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.
\n
(11)The Court, on hearing an appeal against a decision, may consider— (a) whether the jurisdiction existed to make the decision, (b) whether the law was correctly applied in reaching the decision, (c) whether the decision is supported by the evidence including evidence admitted in accordance with subsection (7), and (d) in the case of an appeal against an adjudication, whether an administrative sanction was imposed as part of the adjudication that was appropriate, effective, proportionate and dissuasive.
\n
(12)In considering an appeal, the Court shall have regard to— (a) the record of the decision the subject of the appeal, (b) the grounds stated by the parties to the appeal, and documents and evidence relied upon by the parties to support those grounds, under subsections (4) and (5), and (c) any submissions, documents or evidence admitted under subsection (7).
\n
(13)The Court may, on the hearing of an appeal against a decision— (a) confirm the decision, 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, annul the decision in its totality or in part, and— (i) remit the decision for reconsideration by the adjudicator, or, in the case of a decision to serve an urgent interim measures notice, the Commission subject to such directions as the Court considers appropriate, including, in the case of a decision by an adjudicator, whether the matter should be reconsidered by another adjudicator, or (ii) vary the decision and substitute such other decision as the Court considers appropriate.
\n
(14)The Court shall, in determining an appeal act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals under section 105
\n
(1).
\n
Orders for costs by Court on appeal 108. The Court may in its discretion award the costs of an appeal as if section 88 applied to such an award.
\n
Court confirmation of adjudication 109. (1) Where a person does not appeal to the Court against an adjudication within the period provided for in section 106
\n
(1)the Commission shall, subject to subsection (11), as soon as practicable after the expiration of the period allowed for such an appeal, make an application to the Court for the confirmation of that adjudication.
\n
(2)An application by the Commission under subsection (1) shall include a copy of the adjudication together with the documents and evidence that were before the adjudicator which are referred to in that adjudication, and may include any other documents and evidence which were before the adjudicator.
\n
(3)Notice of an application under subsection (1) shall be served by the Commission on the person the subject of the adjudication within 7 days of the Commission lodging the application in Court.
\n
(4)The notice referred to in subsection (3) shall, where possible, 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
(5)The Court shall, on the hearing of an application under subsection (1), confirm the adjudication the subject of the application unless the Court, on the basis of the findings of fact in the adjudication (which are to be accepted as final by the Court), determines that— (a) the adjudication contains an error of law which is— (i) manifest from the record of the adjudication, and (ii) fundamental so as to deprive the adjudication of its basis, or (b) the administrative sanction imposed was manifestly— (i) disproportionate, (ii) in excess of the sanction required to be dissuasive, (iii) in excess of the sanction required to be effective, or (iv) in excess of the sanction required to be appropriate.
\n
(6)The Court— (a) where it makes a determination referred to in subsection (5)(a), or both a determination referred to in subsection (5)(a) and a determination referred to in subsection (5)(b), in relation to an application under subsection (1), shall remit the matter for reconsideration by an adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not— (i) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and (ii) the matter should be reconsidered by another adjudicator, and (b) where it makes a determination referred to in subsection (5)(b), but does not make a determination referred to in subsection (5)(a), in relation to an application under subsection (1) may— (i) order either or both that a lesser amount be substituted for the amount of the financial penalty, compensation or refund, and that any suspension or withdrawal of authorisation or rights of use specified in the adjudication be reduced or removed, and confirm the adjudication 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 adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not— (I) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and (II) the matter should be reconsidered by another adjudicator.
\n
(7)The Court shall hear the application under subsection (1) on the evidence before the adjudicator.
\n
(8)The Court shall, in determining an application under subsection (1), act as expeditiously as possible consistent with the administration of justice.
\n
(9)The Court may in its discretion award the costs of an application under this section as if section 88 applied to such an award.
\n
(10)Where the Court confirms or substitutes its own decision for the decision of an adjudicator imposing a requirement to cease a regulatory breach, a requirement to take specified measures to remedy the breach, a financial penalty or a requirement to pay compensation or a refund, the Court may set a time limit for the requirement to be carried out or the payment of the financial penalty or compensation or refund concerned.
\n
(11)The Commission shall, prior to making an application under subsection (1), seek the consent in writing of the person to the confirmation of the adjudication of the adjudicator.
\n
(12)Where a person consents in writing to the adjudication, the application under subsection (1) (and any remaining steps in such application) may be made ex parte.
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Publication of adjudication 110. The Commission shall publish an adjudication confirmed by the Court under section 109 (save where such publication would, in the opinion of the Commission, prejudice the achievement of the objectives of this Act) subject to such redactions as the Commission may consider necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason, on the website of the Commission as soon as practicable after the adjudication is confirmed.
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Adjudicator may refer question of law to Court 111. (1) An adjudicator may, on her or his own initiative or at the request of the Commission or a person the subject of a referral under section 71 , refer to the Court for decision by way of case-stated a question of law arising at a hearing on a referral under section 71 .
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(2)Where a question has been referred under subsection (1), the adjudicator shall not, in relation to a referral under section 71 to which the hearing relates— (a) make a decision under section 90 or 91 to which the question is relevant while the reference to the Court is pending, or (b) proceed in a manner, or make a decision under section 90 or 91 , that is inconsistent with the Court’s decision on the question.
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(3)Where a question is referred to the Court under subsection (1)— (a) the adjudicator shall send to the Court all documents before the adjudicator that are relevant to the matter in question, and (b) 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 adjudicator.
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Judicial review 112. (1) The validity of a decision made or an act done by the Commission (including by an authorised officer or adjudicator) in the performance of a function under Chapters 1 to 7 or
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Part 6
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(whether such function is performed by way of powers conferred by or under this Act or otherwise) shall not be challenged 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 the Principal Act or this Act by which the validity of such decision or act may be challenged.
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(2)Notwithstanding section 104 , a person affected by, but not the subject of, a decision under section 90 or 91 may, not later than 14 days after the decision is published, apply to the Court by way of an application for judicial review under Order 84 and in accordance with this section.
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(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 (1) applies and which relates to a matter for the time being before the Commission (including a matter before an adjudicator), the Commission may apply to the Court to stay the proceedings pending the making of a decision by the Commission (including a decision by an adjudicator) in relation to the matter concerned.
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(4)On the making of an application to stay proceedings referred to in subsection (3), the Court may, where it considers that the matter before the Commission (including an adjudicator and an authorised officer) is within the jurisdiction of the Commission (including an adjudicator and an authorised officer), make an order staying the proceedings concerned on such terms as it thinks fit.
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(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 (1) applies shall be made in respect of a decision made or an act done under Chapters 1 to 7 or
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Part 6
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not later than 28 days 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 person or persons became aware of the decision or act.
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(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.
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(7)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.
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(8)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 Commission or the person 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.
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(9)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)— (a) if the application relates to a decision made or other act done by the Commission (including an adjudicator and an authorised officer) in the performance or purported performance of a function under this Act or the Principal Act, to the Commission (including an adjudicator and an authorised officer) concerned, and (b) to any other person specified for that purpose by order of the Court.
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(10)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.
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(11)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 adjudicator under section 90 or 91 .
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(12)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 (11)(a).
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(13)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.
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(14)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 (1) 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.
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(15)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.
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Appeals to Court of Appeal 113. (1) An appeal to the Court of Appeal shall lie in respect of a determination of the High Court on an appeal under section 106 in respect of a decision by an adjudicator under section 90 or 91 .
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(2)The determination of the High Court on— (a) an appeal under section 105 against an urgent interim measures notice, (b) an application for confirmation under section 109 , (c) an application for judicial review of any other decision made or act done under this Act by the Commission (including decisions made or acts done under this Act by an authorised officer or by an adjudicator), (d) a reference to the Court by way of case-stated by an adjudicator under section 111 , or (e) an application to the High Court for compliance with an urgent interim measure under section 57 , shall be final and no appeal shall lie from the decision of the High Court to the Court of Appeal in any 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.
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(3)In respect of an application for confirmation under section 109 , 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 106 , the High Court may only in exceptional circumstances grant leave to appeal to the Court of Appeal under subsection (2).
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(4)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 provisions of the Constitution.
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(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.
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Treatment of amounts paid to Commission pursuant to Part 7 114. A payment received by the Commission of any amount due to it pursuant to this Part shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.
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Non-applicability of limitation periods to certain actions 115. An urgent interim measures notice, a notice of suspected non-compliance, or a supplementary notice of suspected non-compliance, may be served, and a referral under section 68
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(3)(c) or 71 may be made,by the Commission 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 .
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Commission to collect information relating to appeals and decisions to grant interim measures 116. (1) The Commission shall collect information on the general subject matter of appeals under this Chapter, the number of appeals and the duration of appeal proceedings and the number of decisions to grant urgent interim measures.
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(2)The information collected by the Commission under subsection (1) shall be provided to the Minister annually or as requested by the Minister.
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Chapter 9
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Revocation, transitional provisions and consequential amendments Transitional provision where certain notifications have been given 117. (1) Where, on the coming into operation of this section— (a) an undertaking has been notified and given an opportunity to state its views or remedy non-compliance in accordance with Regulation 37(1) of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 ( S.I. No. 333 of 2011 ) by the Regulator (within the meaning of those Regulations), (b) an operator or undertaking has been notified and given an opportunity to state its views or remedy non-compliance in accordance with Regulation 19(1) of the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 ( S.I. No. 334 of 2011 ) by the Regulator (within the meaning of those Regulations), (c) an undertaking has been notified and given an opportunity to state its views or remedy non-compliance in accordance with Regulation 16(3) of the European Communities (Electronic Communications Networks and Services) (Authorisation) Regulations 2011 ( S.I. No. 335 of 2011 ) by the Regulator (within the meaning of those Regulations), or (d) an undertaking has been notified and given an opportunity to state its views or remedy non-compliance in accordance with Regulation 31(2) of the European Communities (Electronic Communications Networks and Services) (Universal Service and Users’ Rights) Regulations 2011 ( S.I. No. 337 of 2011 ) by the Regulator (within the meaning of those Regulations), an authorised officer may, subject to section 70 , where the authorised officer suspects on reasonable grounds that the operator or undertaking notified has committed or is committing a regulatory breach, with the consent of the Commission, refer the matter in accordance with section 71 for adjudication.
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(2)Where an authorised officer makes a referral referred to in subsection (1), Part 7 (including sections 67 and 68 ) shall apply in respect of such referral.
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PART 8
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Amendment of Code Regulations Amendment of Code Regulations 118. Regulation 108 of the Code Regulations is amended by the substitution of “on conviction on indictment, to a fine not exceeding €10,000,000” for “on conviction on indictment, to a fine not exceeding €500,000”.
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PART 9
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Miscellaneous Amendments to Principal Act Amendment of section 2 of Principal Act 119. Section 2 of the Principal Act is amended— (a) by the substitution of the following definition for the definition of “associated facilities”: “‘associated facilities’ means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets;”, (b) by the insertion of the following definition after the definition of “associated facilities”: “‘associated service’ means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service;”, (c) by the substitution of the following definition for the definition of “electronic communications network”: “‘electronic communications network’ means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit-and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;”, (d) by the substitution of the following definition for the definition of “end-user”: “‘end-user’ means a user not providing public electronic communications network or publicly available electronic communications services;”, (e) by the insertion of the following definition after the definition of “end-user”: “‘end-user of premium rate services’ means a person to whom such a service is supplied, or who has asked for the supply of such a service otherwise than for the purpose of resupply;”,
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(f) by the substitution of the following definition for the definition of “electronic communications service”: “‘electronic communications service’ means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services: (a) ‘internet access service’ as defined in point (2) of the second paragraph of Article 2 of Regulation (EU) 2015/2120 of 25 November 2015 7 , (b) interpersonal communications service, and (c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine to machine services and for broadcasting;”, and (g) by the insertion of the following definition after the definition of “financial year”: “‘interpersonal communications service’ means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;”.
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Amendment of section 10 of Principal Act 120. Section 10 of the Principal Act is amended— (a) in subsection (1) — (i) by the insertion of the following paragraph after paragraph (ae): “(af) to ensure compliance with, and to carry out the functions assigned to it by, the European Union (Electronic Communications Code) Regulations 2022 ( S.I. No. 444 of 2022 ),” (ii) in paragraph (da), by the substitution of “on those networks” for “on those networks, and”, (iii) in paragraph (e), by the substitution of “of radio equipment, and” for “of radio equipment.”, and (iv) by the insertion of the following paragraph after paragraph (e): “(f) to advise the Minister, when requested by him or her, on matters relating to the electronic communications market and matters relating to the functions of the Commission.”, and (b) by the substitution of the following subsection for subsection (2): “(2) The Commission may carry out an investigation referred to in subsection (1) either on its own initiative or on foot of a complaint.”.
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Power of Minister to request advice from Commission 121. The Principal Act is amended by the insertion of the following section after section 12: “12A. The Minister may request the Commission to advise him or her on matters relating to the electronic communications market and matters relating to the functions of the Commission.”.
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Power of Commission to obtain information 122. The Principal Act is amended by the substitution of the following section for section 13D: “13D. (1) The Commission may at any time, by notice in writing, require— (a) an undertaking, (b) a person providing a service in a sector closely related to that of the provision of electronic communications networks or services or associated facilities, or (c) a premium rate service provider, to provide it with such written information as it considers necessary to enable it to carry out its functions or to comply with a requirement made to it by the Minister under section 13B.
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(2)A requirement by the Commission under subsection (1) may include a requirement that the undertaking or person concerned gather together, generate or obtain information for the purposes of providing it pursuant to that requirement.
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(3)Any information provided to the Commission in accordance with subsection (1) may be used by the Commission to enable it to carry out any of its functions.
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(4)An undertaking or person referred to in subsection (1) that— (a) fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Commission allows, or (b) in purporting to comply with such a requirement, knowingly or grossly negligently provides misleading, erroneous or incomplete information to the Commission, commits an offence and is liable on summary conviction to a class A fine.
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(5)In proceedings for an offence involving a failure by an undertaking or a person referred to in subsection (1) to comply with a requirement made under subsection (1), it is a defence if the undertaking or person establishes that— (a) the undertaking or person did not know and could not reasonably be expected to know, ascertain or obtain the required information, or (b) the disclosure of the information was prohibited by a law of the State.”.
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Power of Commission to share information with Minister 123. The Principal Act is amended by the insertion of the following section after section 13E: “13EA. (1) The Commission may, where the Minister so requests, provide the Minister with any information that the Minister considers may assist the Minister in the formulation of policy relating to electronic communications networks and services and associated facilities.
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(2)Where the Commission intends to provide information to the Minister under this section which was obtained by the Commission from a person who is or, at the time the information was obtained from the person, was— (a) an undertaking, (b) a person that provides, or provided, associated facilities, or (c) such other person referred to in section 13D(1), the Commission shall notify the person in writing that the Commission intends to share the information with the Minister and afford the person an opportunity to make representations to it on the matter within a period of 7 days beginning on the date on which such notification is given or such further period as may be specified by the Commission.
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(3)The Commission may, taking into account any representations made to it under subsection (2), identify information provided to the Minister as being confidential information.
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(4)Where the Minister receives information identified by the Commission as confidential information and the Minister is satisfied that such information is confidential information, he or she shall protect the confidentiality of such information.”.
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Amendment of section 39 of Principal Act 124. Section 39 of the Principal Act is amended— (a) in subsection (3) (as amended by section 37 (a) of the Competition (Amendment) Act 2022 )— (i) by the insertion of “a related enactment,” after “this Act,”, and (ii) by the insertion of the following paragraph after paragraph (j): “(k) require any person who appears to the authorised officer to be in a position to facilitate access to the documents or records stored in any data equipment or computer on the premises, land or vessel or at the place or in the vehicle or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by giving to the authorised officer any password necessary to access the documents or records concerned, or to make the documents or records legible and comprehensible, (l) take possession of and detain any computer, machinery, apparatus, appliance or any equipment or part thereof on the premises, land or vessel or at the place or in the vehicle as he or she considers appropriate.”, and (b) by the insertion of the following subsection after subsection (10) (inserted by section 37 (e) of the Competition (Amendment) Act 2022) : “(11) A reference in this section to a book, document or record is a reference to a book, document or record irrespective of the medium on which it may be stored.”.
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Amendment of section 40 of Principal Act 125. Section 40 of the Principal Act is amended by the insertion of “on any land,” after “is held” and by the substitution of “the land, premises” for “the premises”.
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Amendment of section 43 of Principal Act 126. Section 43 of the Principal Act is amended— (a) in subsection (1), by the substitution of “an offence under this Act or a related enactment that may be prosecuted summarily may only be prosecuted summarily” for “a summary offence under this Act or a related enactment may be prosecuted only”, and (b) by the insertion of the following subsection after subsection (3): “(4)
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Section 1
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(1)of the Probation of Offenders Act 1907 shall not apply to an offence under this Act or a related enactment.”.
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Undertaking not to overcharge or charge for services not supplied 127. The Principal Act is amended by the substitution of the following section for section 45: “45.(1) A person shall not impose, or purport to impose, a charge for supplying an electronic communications service or electronic communications product to an end-user that exceeds the amount for that service or product specified— (a) in the undertaking’s published tariff of charges, or (b) in a written statement previously made or given to the end-user by the undertaking in relation to that supply.
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(2)A person shall not impose, or purport to impose, a charge for an electronic communications service or electronic communications product that was— (a) supplied to an end-user but not requested by him or her, (b) requested by an end-user but not supplied to him or her, or (c) neither supplied to, nor requested by, a person.
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(3)A person that contravenes subsection (1) or (2) commits an offence and is liable on summary conviction to a class A fine.
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(4)In carrying out an investigation to ascertain whether a person may be contravening or may have contravened subsection (1) or (2), the Commission may conduct an audit of the undertaking’s billing system.
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(5)In this section, ‘tariff of charges’, in relation to a person, includes any list setting out the prices charged by the undertaking for providing electronic communications services or electronic communications products to end-users.”.
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Commission may apply to High Court for order to restrain certain repeated or apprehended contraventions 128. The Principal Act is amended by the substitution of the following section for section 46: “46.(1) If it appears to the Commission that a person is contravening or has contravened or, having contravened, may in the future contravene— (a) section 45(1) or (2), (b) Regulation 89 or 90 of the European Union (Electronic Communications Code) Regulations 2022, or (c) section 13
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(1)of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 , the Commission may apply to the High Court, by motion, for an order under subsection (7) restraining such contravention.
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(2)The Commission may conduct an audit of— (a) the billing system, switching system or contract change system of an undertaking, or (b) the billing system of a premium rate service provider, prior to making an application to the High Court referred to in subsection (1).
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(3)The High Court may hear the application under subsection (1) only if it is satisfied that a copy of the application has been served on the undertaking or premium rate service provider concerned. On being served with such a copy, that undertaking or provider becomes the respondent to the application.
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(4)The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1).
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(5)The High Court may not require the Commission to give an undertaking as to damages as a condition for the granting of an order under subsection (4).
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(6)The Court may not refuse interim or interlocutory relief under subsection (4) merely because the Commission might not suffer damage if relief were not granted pending determination of the application.
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(7)On the hearing of an application made under subsection (1), the High Court may make a restraining order requiring the undertaking or premium rate service provider to cease the contravention concerned and not to repeat it, or, if it is of the opinion that the application is not substantiated, refuse the application.
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(8)An application for a restraining order under subsection (1) may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention.
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(9)On hearing the further application, the High Court may if it is satisfied, having previously been satisfied that the respondent has contravened the provision concerned, and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount may be more or less than the amount proposed by the Commission.
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(10)The circumstances surrounding the contravention referred to in subsection (9) include (but are not limited to) the following: (a) the duration of the contravention; (b) the effect of the contravention on other parties to the relevant decision, and on end-users and on end-users of premium rate services; (c) the submission of the Commission with respect to what it considers to be the appropriate amount; (d) any excuse or explanation for the contravention provided by the respondent.
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(11)If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.”.
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Amendment of section 46B(1) of Principal Act 129. Section 46B(1) of the Principal Act is amended by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “this Act”.
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Amendment of section 46D of Principal Act 130. Section 46D of the Principal Act is amended— (a) in subsection (1), by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “proceedings under this Act”, and (b) in subsection (1), by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “proceedings under this Act”.
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Amendment of section 57A of Principal Act 131. Section 57A(8) of the Principal Act is amended by the substitution of the following paragraph for paragraph (b): “(b) the effect of the non-compliance on other parties to the relevant decision, to end-users and to end-users of premium rate services.”.
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Service of notices 132. The Principal Act is amended by the substitution of the following section for section 60: “60. (1) Where a notice is required to be given to a person under this Act, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 or a related enactment, the notice shall be given in one of the following ways: (a) by delivering it to the person (where the person is an individual); (b) by leaving it addressed to the person at a relevant address; (c) by sending it, addressed to the person, to a relevant address by pre-paid registered post or other pre-paid recorded delivery service; (d) by sending it to the person by electronic means in accordance with subsection (5).
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(2)In subsection (1)(b) and (c), ‘relevant address’ means any of the following: (a) the address at which the person ordinarily resides; (b) an address at which the person carries on business; (c) a postal address at which the person has agreed in writing to receive notices under this Act or a related enactment.
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(3)For the purposes of subsection (2)(a), a company registered under the Companies Act 2014 , or an existing company within the meaning of that Act, is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.
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(4)For the purposes of subsection (1)(d), a notice is sent to a person by electronic means in accordance with this subsection if— (a) it is sent to an email address, fax number, or other electronic contact point, at which the person has agreed in writing to receive notices under this Act, and (b) a record that the email, fax, or other electronic message has been sent is made for the sender by the email system, fax machine, or other electronic system used.
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(5)A notice to which subsection (1) applies— (a) if given in accordance with subsection (1)(a), is given at the time when it is delivered, (b) if given in accordance with subsection (1)(b), is given at the time when it is left at the relevant address, (c) if given in accordance with subsection (1)(c), is deemed, unless the contrary is proved, to be given at the time when it would be delivered in the ordinary course of the post or other service used, and (d) if given in accordance with subsection (1)(d), is deemed, unless the contrary is proved, to be given at the time stated in the record referred to in subsection (4)(b).
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(6)In this section, ‘notice’ includes notification.”.
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Miscellaneous amendments to Principal Act 133. The Principal Act is amended by the insertion of the following section after section 60: “Privileged legal material 61. (1) Subject to subsection (2), nothing in this Act or a related enactment shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.
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(2)The disclosure of information may be compelled, or possession of it taken, pursuant to this Act or a related enactment, notwithstanding that it is apprehended that the information is privileged legal material, provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the High Court of the issue as to whether the information is privileged legal material.
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(3)Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), information has been disclosed or taken possession of pursuant to this Act or a related enactment, the person— (a) to whom such information has been so disclosed, or (b) who has taken possession of it, shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the High Court as soon as is reasonably practicable for a determination as to whether the information is privileged legal material.
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(4)A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, pursuant to this Act, may apply to the High Court for a determination as to whether the information is privileged legal material.
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(5)Pending the making of a final determination of an application under subsection (3) or (4), the High Court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to— (a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court, (b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of— (i) examining the information, and (ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.
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(6)Subsections (1) to (5) also apply to irrelevant material and references in those subsections to ‘privileged legal material’ shall be construed as referring to irrelevant material as the case may be.
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(7)An application under subsection (3), (4) or (5) shall be by motion and may, if the High Court directs, be heard otherwise than in public.
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(8)In this section— ‘computer’ includes a personal organiser or any other electronic means of information storage or retrieval; ‘information’ means information contained in a book, document or record, a computer or otherwise; ‘irrelevant material’ means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds that it is not relevant to the purpose for which it is sought by the Commission; ‘privileged legal material’ means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds of legal professional privilege.
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Freedom of Information Act not to apply to certain confidential information 62. The Freedom of Information Act 2014 shall not apply to information classified as confidential which the Commission receives from the European Commission or from the national regulatory authority or competent authority of another Member State in accordance with Article 20 of Directive 2018/1972 of the European Parliament and of the Council of 11 December 20188 .
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Publication of certain notices 63. Before taking any measure in accordance with Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018 9 which will have a significant impact on a relevant market, the Commission shall publish the text of the proposed measure, give the reasons for it, including information as to which of the Commission’s statutory powers gives rise to the measure, and specify the period within which submissions relating to the proposal may be made by interested parties.”.
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Amendment to Part 2 of Schedule 1 to Principal Act 134. Part 2 of Schedule 1 (inserted by section 18 of the Communications Regulation (Amendment) Act 2007 ) to the Principal Act is amended— (a) in paragraph (58), by substituting “( S.I. No. 414 of 2006 );” for “( S.I. No. 414 of 2006 ).”, and (b) by the insertion of the following paragraphs after paragraph (58): “(59) European Communities (Electromagnetic Compatibility) Regulations 2016 ( S.I. No. 145 of 2016 );
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(60)European Union (Low Voltage Electrical Equipment) Regulations 2016 ( S.I. No. 345 of 2016 );
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(61)European Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 ( S.I. No. 391 of 2016 );
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(62)European Communities (Electromagnetic Compatibility) Regulations 2017 ( S.I. No. 69 of 2017 );
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(63)European Union (Radio Equipment) Regulations 2017 ( S.I. No. 248 of 2017 );
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(64)European Union (Open Internet Access) Regulations 2019 ( S.I. No. 343 of 2019 );
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(65)European Union (Retail Charges for Regulated Intra-EU Communications) Regulations 2020 ( S.I. No. 668 of 2020 );
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(66)European Union (Low Voltage Electrical Equipment) (Amendment) Regulations 2022 ( S.I. No. 14 of 2022 );
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(67)European Union (Mobile Telephone Roaming) Regulations 2022 ( S.I. No. 315 of 2022 ).”.
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PART 10
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Amendments to Digital Hub Development Agency Act 2003 Amendment of Digital Hub Development Agency Act 2003 135. The Digital Hub Development Agency Act 2003 is amended— (a) in section 15(1), by the substitution of “8 members” for “14 members”, and (b) in section 17(3), by the substitution of “4” for “6”.
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PART 11
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Amendment to Postal and Telecommunications Services Act 1983 Financing for the purposes of maintaining post office network and countering consequences of Brexit 136. The Postal and Telecommunications Services Act 1983 is amended by the insertion of the following section after section 29: “29A. (1) The Minister may, out of such monies as are available to him or her from monies provided by the Oireachtas, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, make available to the postal company a sum not exceeding €30,000,000 for the purposes of maintaining a network of post offices.
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(2)The Minister may, out of such monies as are available to him or her from the Brexit Adjustment Reserve established under Regulation (EU) 2021/1755 of the European Parliament and of the Council of 6 October 202110 , with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, make available to the postal company a sum not exceeding €25,000,000 for the purposes of providing support to the postal company to counter the adverse economic and social consequences of the withdrawal of the United Kingdom from the European Union.
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(3)Any amounts made available to the postal company under subsection (1) or (2) shall be provided in such form and manner and on such terms and conditions as may be agreed between the Minister and the company with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform.”.
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1 OJ No. L321, 17.12.2018, p. 36 2 OJ No. L321, 17.12.2018, p. 36 3 OJ No. L194, 19.7.2016, p. 1 4 OJ No. L194, 19.7.2016, p. 1 5 OJ No. L119, 4.5.2016, p. 1 6 OJ No. L310, 26.11.2015, p. 1 7 OJ No. L310, 26.11.2015, p. 1 8 OJ No. L321, 17.12.2018, p. 36 9 OJ No. L321, 17.12.2018, p. 36 10 OJ No. L357, 8.10.2021, p. 1 Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Ráiteas Príobháideachais Inrochtaineacht Aitheantóir Eorpach Reachtaíochta (ELI) Ceadúnas Sonraí Oscailte Liosta Fianán © Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the Houses of the Oireachtas © Rialtas na hÉireann. Atáirgtear ábhar faoi Chóipcheart le cead ó Thithe an Oireachtais