Competition Act, 2002

Competition Act, 2002 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2002 Competition Act, 2002 Competition Act, 2002 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Revised Act Acht Athbh… Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 14 of 2002 COMPETITION ACT, 2002 ARRANGEMENT OF SECTIONS PART 1 Preliminary and General Section 1. Short title. 2. Commencement. 3. Interpretation. PART 2 Competition Rules and Enforcement 4. Anti-competitive agreements, decisions and concerted practices. 5. Abuse of dominant position. 6. Offence in respect of breach of section 4(1) or Article 81(1) of the Treaty. 7. Offence in respect of breach of section 5(1) or Article 82 of the Treaty. 8. Penalties and proceedings in relation to offences under sections 6 and 7. 9. Provisions as respects expert evidence. 10. Provision of information to juries. 11. Trial of persons for certain offences by Central Criminal Court. 12. Presumptions. 13. Admissibility of statements contained in certain documents. 14. Right of action for breaches of competition rules. 15. Appeal to High Court against declaration under section 4(3). PART 3 Mergers and Acquisitions 16. Mergers and acquisitions for the purposes of Act. 17. Application of sections 18 to 22. 18. Obligation to notify certain mergers and acquisitions. 19. Limitation on merger or acquisition being put into effect. 20. Examination by the Authority of notification. 21. Determination of issues concerned without full investigation, etc. 22. Determination of issues concerned on foot of full investigation. 23. Provisions with regard to media mergers. 24. Appeal to the High Court against determination of the Authority. 25. Laying of order under section 23(4) before Houses of the Oireachtas. 26. Enforcement of certain commitments, determinations and orders. 27. Alteration of certain monetary amounts. 28. Relationship between this Part and other enactments. PART 4 The Competition Authority 29. The Competition Authority. 30. Functions of the Authority. 31. Investigations of the Authority — general provisions. 32. Prohibition on unauthorised disclosure of information. 33. Strategic plans and work programmes. 34. Provisions for co-operation between the Authority and statutory bodies. 35. Membership. 36. Disqualification. 37. Meeting and business. 38. Functions and accountability of chairperson. 39. Staff. 40. Seal of the Authority. 41. Accounts and audits. 42. Annual report. 43. Grants and borrowing powers. 44. Superannuation. 45. Authorised officers and their powers. 46. Relationship of Authority with foreign competition bodies. 47. Information relating to offences under this Act may be disclosed to Authority. PART 5 Miscellaneous 48. Repeals. 49. Restrictive Practices (Groceries) Order, 1987. 50. Protections for person reporting breaches of Act. 51. Amendment of Industrial and Provident Societies Act, 1893. 52. Regulations and orders. 53. Expenses. 54. Provision with respect to fees payable under this Act. 55. Saving and transitional provisions. SCHEDULE 1 Statutory Bodies and their responsible Ministers of the Government SCHEDULE 2 Saving and Transitional Provisions SCHEDULE 3 Redress for Contravention of Section 50(3) Acts Referred to Broadcasting Act, 2001 2001, No. 4 Civil Service Commissioners Act, 1956 1956, No. 45 Civil Service Regulation Acts, 1956 and 1958 Competition Act, 1991 1991, No. 24 Competition Acts, 1991 and 1996 Competition (Amendment) Act, 1996 1996, No. 19 Comptroller and Auditor General (Amendment) Act, 1993 1993, No. 8 European Parliament Elections Act, 1997 1997, No. 2 Industrial and Provident Societies (Amendment) Act, 1971 1971, No. 31 Industrial and Provident Societies Act, 1893 56 & 57 Vict. c. 39 Interpretation Act, 1937 1937, No. 38 Mergers and Takeovers (Control) Acts, 1978 to 1996 Mergers, Take-overs and Monopolies (Control) Act, 1978 1978, No. 17 Minimum Notice and Terms of Employment Acts, 1973 and 1984 Organisation of Working Time Act, 1997 1997, No. 20 Petty Sessions (Ireland) Act, 1851 1851, c. 93 Public Offices Fees Act, 1879 1879, c. 58 Radio and Television Act, 1988 1988, No. 20 Redundancy Payments Acts, 1967 to 1990 Restrictive Practices (Amendment) Act, 1987 1987, No. 31 Terms of Employment (Information) Act, 1994 1994, No. 5 Unfair Dismissals Act, 1977 1977, No. 10 Unfair Dismissals Acts, 1977 to 1993 Number 14 of 2002 COMPETITION ACT, 2002 AN ACT TO MAKE NEW PROVISION, BY ANALOGY WITH ARTICLES 81 AND 82 OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY, AND IN THE INTERESTS OF THE COMMON GOOD, FOR THE PROHIBITION OF ACTIVITIES WHICH PREVENT, RESTRICT OR DISTORT COMPETITION IN TRADE IN THE STATE OR WHICH CONSTITUTE AN ABUSE OF A DOMINANT POSITION IN SUCH TRADE, TO COMPLEMENT THE POWERS AVAILABLE TO THE COMMISSION OF THE EUROPEAN COMMUNITIES WITH REGARD TO THE ENFORCEMENT OF THE SAID ARTICLES 81 AND 82, TO MAKE NEW PROVISION, IN THE INTERESTS OF THE COMMON GOOD, FOR THE CONTROL OF CERTAIN MERGERS OR ACQUISITIONS, TO CONTINUE IN BEING THE COMPETITION AUTHORITY AND MAKE NEW PROVISION ABOUT ITS FUNCTIONS, TO REPEAL THE COMPETITION ACTS, 1991 AND 1996, THE MERGERS AND TAKEOVERS (CONTROL) ACTS, 1978 TO 1996, AND CERTAIN OTHER ENACTMENTS, TO AMEND THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1893, WITH RESPECT TO THE REQUIREMENTS FOR CERTAIN SPECIAL RESOLUTIONS THEREUNDER, AND TO PROVIDE FOR RELATED MATTERS. [10th April, 2002] BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: PART 1 Preliminary and General Short title. 1.—This Act may be cited as the Competition Act, 2002. Commencement. 2.—This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions. Interpretation. 3.—(1) In this Act, unless the context otherwise requires— “authorised officer” means a person appointed under section 45 ; “Authority” means the Competition Authority continued in being by section 29 ; “Commission” means the Commission of the European Communities; “conditional determination” shall be construed in accordance with section 22 ; “contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly; “Council” means the Council of the European Communities; “court”, where used without qualification, means the District Court, the Circuit Court or the High Court as appropriate, or, in the case of an appeal, the Circuit Court, the High Court or the Supreme Court as appropriate; “director” includes a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but does not include such a person if the directors are accustomed so to act by reason only that they do so on advice given by the person in a professional capacity; “functions” includes powers and duties and a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of the powers and the carrying out of the duties; “Minister” means the Minister for Enterprise, Trade and Employment; “prescribed” means prescribed by regulations made by the Minister under this Act; “publish”, in relation to a matter, includes to place a notice in relation to it in a national newspaper and to post a notice in relation to it on a website maintained by the Authority, any Minister of the Government or a statutory body; “statutory body” means a person specified in column (1) of Schedule 1; “Treaty” means the Treaty establishing the European Community; “undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service. (2) In this Act references, however expressed, to an agreement being concluded in respect of a merger or acquisition shall be construed as including references to an agreement (of whatever kind and whether expressed to be in respect of a merger or acquisition or not) being entered into the result of which will, if the agreement is implemented, be that a merger or acquisition occurs. (3) Where— (a) proof of any matter is, by any provision of this Act, placed on the defendant in the proceedings concerned it shall be sufficient, for the purposes of that provision, for the defendant to prove the matter on the balance of probabilities, (b) any provision of this Act provides that any specified matter or matters is or are presumed to be fact unless the contrary is shown (as distinct from being presumed to be fact unless or until the contrary is proved) the provision shall be construed as placing on the defendant in the proceedings concerned an evidential burden only with respect to the matter or matters. (4) In this Act references, however expressed, to an act that is done with the consent of a person shall be construed as including references to an act that is done with the connivance of a person. (5) In this Act a reference to a section or Schedule is a reference to a section of, or Schedule to, this Act, unless it is indicated that a reference to some other provision is intended. (6) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to another provision is intended. (7) In this Act a reference to any other enactment shall be construed as a reference to that enactment as amended, extended or adapted by or under any subsequent enactment (including this Act). PART 2 Competition Rules and Enforcement Anti-competitive agreements, decisions and concerted practices. 4.—(1) Subject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which— (a) directly or indirectly fix purchase or selling prices or any other trading conditions, (b) limit or control production, markets, technical development or investment, (c) share markets or sources of supply, (d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at a competitive disadvantage, (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts. (2) An agreement, decision or concerted practice shall not be prohibited under subsection (1) if it complies with the conditions referred to in subsection (5) or falls within a category of agreements, decisions, or concerted practices the subject of a declaration for the time being in force under subsection (3). (3) The Authority may declare in writing that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5); such a declaration may be revoked by the Authority if it becomes of the opinion that the category no longer complies with those conditions. (4) The Authority shall publish, in such manner as it thinks fit, notice of the making of a declaration under subsection (3), and of any revocation by it of such a declaration. (5) The conditions mentioned in subsections (2) and (3) are that the agreement, decision or concerted practice or category of agreement, decision or concerted practice, having regard to all relevant market conditions, contributes to improving the production or distribution of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and does not— (a) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives, (b) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question. (6) The prohibition in subsection (1) shall not prevent the court, in exercising any jurisdiction conferred on it by this Act concerning an agreement, decision or concerted practice which contravenes that prohibition and which creates or, but for this Act, would have created legal relations between the parties thereto, from applying, where appropriate, any relevant rules of law as to the severance of those terms of that agreement, decision or concerted practice which contravene that prohibition from those which do not. (7) In respect of an agreement, decision or concerted practice such as is referred to in subsection (6) a court of competent jurisdiction may make such order as to recovery, restitution or otherwise between the parties to such agreement, decision or concerted practice as may in all the circumstances seem just, having regard in particular to any consideration or benefit given or received by such parties on foot thereof. (8) The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18 , shall not be prohibited under subsection (1). (9) For the avoidance of doubt, references in this Part of this Act to the parties to an agreement, decision or concerted practice of a kind referred to in subsection (1) include references to one or more of the parties to such an agreement, decision or concerted practice. (10) Subsection (9) is without prejudice to section 11(a) of the Interpretation Act, 1937 . Abuse of dominant position. 5.—(1) Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in any part of the State is prohibited. (2) Without prejudice to the generality of subsection (1), such abuse may, in particular, consist in— (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions, (b) limiting production, markets or technical development to the prejudice of consumers, (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, (d) making the conclusion of contracts subject to the acceptance by other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts. (3) The putting into effect of a merger or acquisition in accordance with the provisions of Part 3 of this Act, together with any arrangements constituting restrictions which are directly related and necessary to the implementation of the merger or acquisition and are referred to in the notification of the merger or acquisition under subsection (1) or (3) of section 18 , shall not be prohibited under subsection (1). Offence in respect of breach of section 4 (1) or Article 81(1) of the Treaty. 6.—(1) An undertaking which— (a) enters into, or implements, an agreement, or (b) makes or implements a decision, or (c) engages in a concerted practice, that is prohibited by section 4 (1) or by Article 81(1) of the Treaty shall be guilty of an offence. (2) In proceedings for an offence under subsection (1), it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to— (a) directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice, (b) limit output or sales, or (c) share markets or customers, has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise. (3) In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in section 4 (1), it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue of section 4 (2). (4) In proceedings for an offence under subsection (1) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 81(1) of the Treaty, it shall be a good defence to prove that— (a) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the Commission pursuant to Article 81(3) of the Treaty, (b) at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the Commission pursuant to that Article 81(3), or (c) the agreement, decision or concerted practice did not contravene that prohibition by virtue of that Article 81(3). (5) In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body. (6) For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking. (7) In this section “competing undertakings” means undertakings that provide or are capable of providing goods or services to the same applicable market and, for the purposes of this definition, “applicable market” means a market comprising the provision of goods or services that are regarded by those to whom they are provided as interchangeable with, or substitutable for, each other by reason of the goods' or services' characteristics, prices and intended use or purpose. Offence in respect of breach of section 5 (1) or Article 82 of the Treaty. 7.—(1) An undertaking that acts in a manner prohibited by section 5 (1) or by Article 82 of the Treaty shall be guilty of an offence. (2) In proceedings for an offence under subsection (1), it shall be a good defence to prove that the act or acts concerned was or were done pursuant to a determination made or a direction given by a statutory body. (3) For the purpose of determining liability for an offence under subsection (1), any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking. Penalties and proceedings in relation to offences under section 6 and 7. 8.—(1) An undertaking guilty of an offence under section 6 (being an offence involving an agreement, decision or concerted practice to which subsection (2) of that section applies) shall be liable— (a) on summary conviction— (i) in the case of an undertaking that is not an individual, to a fine not exceeding €3,000, or (ii) in the case of an individual, to such a fine or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment, (b) on conviction on indictment— (i) in the case of an undertaking that is not an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or (ii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 5 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment. (2) An undertaking guilty of an offence under section 6 (other than one to which subsection (1) applies) or section 7 shall, whether the undertaking is an individual or otherwise, be liable— (a) on summary conviction, to a fine not exceeding €3,000, or (b) on conviction on indictment, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction. (3) Sections 6 and 7 operate so that if the contravention concerned continues one or more days after the date of its first occurrence the undertaking referred to in section 6 or 7, as the case may be, is guilty of a separate offence under that section for each day that the contravention occurs; but in respect of the second or subsequent offence of which the undertaking is guilty by reason of that continued contravention, subsections (1) and (2) shall have effect as if— (a) in the case of subsection (1)— (i) in paragraph (a), “€300” were substituted for “€3,000” and references to imprisonment were disregarded, and (ii) in paragraph (b)— (I) references to a fine not exceeding €40,000 were substituted for the references to a fine not exceeding the greater of the monetary amounts mentioned therein, and (II) references to imprisonment were disregarded, and (b) in the case of subsection (2)— (i) in paragraph (a), “€300” were substituted for “€3,000”, and (ii) in paragraph (b), a reference to a fine not exceeding €40,000 were substituted for the reference to a fine not exceeding the greater of the monetary amounts mentioned therein. (4) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under section 6 or 7 in proceedings brought by the Authority, it shall, on the application of the Authority (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the Authority and such payment may be enforced by the Authority as if the payment were due to the Authority on foot of a decree or order made by the court in civil proceedings. (5) The amount of any fine paid to, or recovered by, the Authority under subsection (4) shall be disposed of by it in such manner as the Minister for Finance directs. (6) Where an offence under section 6 or 7 has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to, by a person, being a director, manager, or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence. (7) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that that person consented to the doing of the acts by the undertaking which constituted the commission by it of the offence concerned under section 6 or 7. (8) Where the affairs of a body corporate are managed by its members, subsections (6) and (7) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate. (9) Summary proceedings in relation to an offence under section 6 or 7 may be brought by the Authority. (10) An action under section 14 may be brought whether or not there has been a prosecution for an offence under section 6 or 7 in relation to the matter concerned and such an action shall not prejudice the initiation of a prosecution for any such offence. (11) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under section 6 or 7 may be instituted within 2 years after the day on which the offence was committed. (12) In this section “turnover” does not include any payment in respect of value-added tax on sales or the provision of services or in respect of duty of excise. Provisions as respects expert evidence. 9.—(1) In proceedings under this Act, the opinion of any witness who appears to the court to possess the appropriate qualifications or experience as respects the matter to which his or her evidence relates shall, subject to subsection (2), be admissible in evidence as regards any matter calling for expertise or special knowledge that is relevant to the proceedings and, in particular and without prejudice to the generality of the foregoing, the following matters, namely— (a) the effects that types of agreements, decisions or concerted practices may have, or that specific agreements, decisions or concerted practices have had, on competition in trade, (b) an explanation to the court of any relevant economic principles or the application of such principles in practice, where such an explanation would be of assistance to the judge or, as the case may be, jury. (2) Notwithstanding anything contained in subsection (1), a court may, where in its opinion the interests of justice require it to so direct in the proceedings concerned, direct that evidence of a general or specific kind referred to in the said subsection shall not be admissible in proceedings for an offence under section 6 or 7 or shall be admissible in such proceedings for specified purposes only. Provision of information to juries. 10.—In a trial on indictment of an offence under section 6 or 7, the trial judge may order that copies of any or all of the following documents shall be given to the jury in any form that the judge considers appropriate: (a) any document admitted in evidence at the trial, (b) the transcript of the opening speeches of counsel, (c) any charts, diagrams, graphics, schedules or agreed summaries of evidence produced at the trial, (d) the transcript of the whole or any part of the evidence given at the trial, (e) the transcript of the closing speeches of counsel, (f) the transcript of the trial judge's charge to the jury. Trial of persons for certain offences by Central Criminal Court. 11.—A person indicted (whether as a principal or an accessory) for an offence under section 6 or 7 or the offence of attempting to commit such an offence or the offence of conspiracy to commit such an offence shall be tried by the Central Criminal Court. Presumptions. 12.—(1) The presumptions specified in this section shall apply in any proceedings, whether civil or criminal, under this Act. (2) Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person. (3) Where a document purports to have been created by a person and addressed and sent to a second person, it shall be presumed, unless the contrary is shown, that the document was created and sent by the first person and received by the second person, and that any statement contained therein— (a) unless the document expressly attributes its making to some other person, was made by the first person, and (b) came to the notice of the second person. (4) Where a document is retrieved from an electronic storage and retrieval system, it shall be presumed, unless the contrary is shown, that the author of the document is the person who ordinarily uses that electronic storage and retrieval system in the course of his or her business. (5) Where an authorised officer who, in the exercise of his or her powers under section 45 , has removed one or more documents from any place, gives evidence in any proceedings under this Act that, to the best of the authorised officer's knowledge and belief, the material is the property of any person, then the material shall be presumed, unless the contrary is shown, to be the property of that person. (6) Where, in accordance with subsection (5), material is presumed in proceedings under this Act to be the property of a person and the authorised officer concerned gives evidence that, to the best of the authorised officer's knowledge and belief, the material is material which relates to any trade, profession, or, as the case may be, other activity, carried on by that person, the material shall be presumed, unless the contrary is proved, to be material which relates to that trade, profession, or, as the case may be, other activity, carried on by that person. (7) References in this section to a document are references to a document in written, mechanical or electronic form and, for this purpose, “written” includes any form of notation or code whether by hand or otherwise and regardless of the method by which, or medium in or on which, the document concerned is recorded. Admissibility of statements contained in certain documents. 13.—(1) If a document contains a statement by a person referred to in subsection (2) asserting that an act has been done, or is or was proposed to be done, by another person, being an act (the “relevant act”) that relates to— (a) the entry into or the making or implementation of an agreement or decision, or the engaging in of a concerted practice, the subject of proceedings under this Act, or (b) the doing of the act or acts that constitute an abuse of a dominant position, the subject of proceedings under this Act, then, subject to the conditions specified in subsection (3) being satisfied, that statement shall be admissible as evidence in the proceedings referred to in paragraph (a) or (b) that the relevant act was done by that other person or was proposed (at the time the statement was made or, as the case may be, at a previous time) to be done by him or her. (2) The person mentioned in subsection (1) is a person who has done an act of the kind referred to in that subsection in relation to the agreement, decision, concerted practice or abuse of dominant position concerned (whether or not the same act which the other person referred to in that subsection is alleged to have done or proposed to do). (3) The conditions mentioned in subsection (1) 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 Authority, a member of the Garda Síochána, an officer of the Commission or an authorised officer relative to any matter the subject of those proceedings. (4) In estimating the weight, if any, to be attached to a statement admitted in evidence 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. (5) Where a statement is admitted in evidence by virtue of this section— (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, 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. (6) Nothing in this section shall prejudice the admissibility in any proceedings under this Act of any document, as evidence of any matters stated in it, that is so admissible by virtue of any rule of law or other enactment. Right of action for breaches of competition rules. 14.—(1) Any person who is aggrieved in consequence of any agreement, decision, concerted practice or abuse which is prohibited under section 4 or 5 shall have a right of action under this subsection for relief against either or both of the following, namely— (a) any undertaking which is or has at any material time been a party to such an agreement, decision or concerted practice or has done any act that constituted such an abuse, (b) any director, manager or other officer of such an undertaking, or a person who purported to act in any such capacity, who authorised or consented to, as the case may be, the entry by the undertaking into, or the implementation by it of, the agreement or decision, the engaging by it in the concerted practice or the doing by it of the act that constituted the abuse. (2) The Authority shall have a right of action under this subsection in respect of an agreement, decision or concerted practice or an abuse which is prohibited under section 4 or 5 or by Article 81 or 82 of the Treaty. (3) Subject to subsection (4), an action under subsection (1) or (2) may be brought in the Circuit Court or in the High Court. (4) Where an action under subsection (1) is brought in the Circuit Court any relief by way of damages, including exemplary damages, shall not, except by consent of the necessary parties in such form as may be provided for by rules of court, be in excess of the limit of the jurisdiction of the Circuit Court in an action founded on tort. (5) Without prejudice to subsection (7), the following reliefs, or any of them, may be granted to the plaintiff in an action under subsection (1): (a) relief by way of injunction or declaration, (b) damages, including exemplary damages. (6) Without prejudice to subsection (7), relief by way of injunction or declaration may be granted to the Authority in an action under subsection (2). (7) Where in an action under subsection (1) or (2) it is finally decided by the Court that an undertaking has, contrary to section 5 , abused a dominant position, the Court may, either at its own instance or on the application of the Authority, by order either— (a) require the dominant position to be discontinued unless conditions specified in the order are complied with, or (b) require the adjustment of the dominant position, in a manner and within a period specified in the order, by a sale of assets or otherwise as the Court may specify. (8) Where in an action under subsection (1) or (2) it is proved that the act complained of was done by an undertaking it shall be presumed, until the contrary is proved, that each (if any) director of the undertaking and person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, and any other person who purported to act in any such capacity at the material time, consented to the doing of the said act. (9) In an action under subsection (1) for damages, it shall be a good defence to prove that the act complained of was done pursuant to a determination made or a direction given by a statutory body. Appeal to High Court against declaration under section 4 (3). 15.—(1) Any undertaking or association of undertakings concerned or any other person aggrieved by the making of the particular declaration may appeal to the High Court against the making of a declaration under section 4 (3). (2) Such an appeal shall be made to the High Court within 28 days after the date of the publication of the notice under section 4 (4) in relation to the declaration or such greater period as the High Court may, on application being made to it, specify for the purposes of this subsection in relation to the particular appeal. (3) On the hearing of an appeal under this section, the High Court may confirm, amend or annul the declaration concerned. (4) The High Court, on application being made to it, may by order provide that, pending the hearing and determination of an appeal under this section in relation to a declaration, the declaration shall not have effect for the purposes of section 4 (2). PART 3 Mergers and Acquisitions Mergers and acquisitions for the purposes of Act. 16.—(1) For the purposes of this Act, a merger or acquisition occurs if— (a) 2 or more undertakings, previously independent of one another, merge, or (b) one or more individuals or other undertakings who or which control one or more undertakings acquire direct or indirect control of the whole or part of one or more other undertakings, or (c) the result of an acquisition by one undertaking (the “first undertaking”) of the assets, including goodwill, (or a substantial part of the assets) of another undertaking (the “second undertaking”) is to place the first undertaking in a position to replace (or substantially to replace) the second undertaking in the business or, as appropriate, the part concerned of the business in which that undertaking was engaged immediately before the acquisition. (2) For the purposes of this Act, control, in relation to an undertaking, shall be regarded as existing if, by reason of securities, contracts or any other means, or any combination of securities, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the undertaking and, in particular, by— (a) ownership of, or the right to use all or part of, the assets of an undertaking, or (b) rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking. (3) For the purposes of this Act, control is acquired by an individual or other undertaking if he or she or it— (a) becomes holder of the rights or contracts, or entitled to use the other means, referred to in subsection (2), or (b) although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom. (4) The creation of a joint venture to perform, on an indefinite basis, all the functions of an autonomous economic entity shall constitute a merger falling within subsection (1)(b). (5) In determining whether influence of the kind referred to in subsection (2) is capable of being exercised regard shall be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made. (6) For the purposes of this Act, a merger or acquisition shall not be deemed to occur if— (a) the person acquiring control is a receiver or liquidator acting as such or is an underwriter or jobber acting as such, or (b) all of the undertakings involved in the merger or acquisition are, directly or indirectly, under the control of the same undertaking, or (c) control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy, or (d) control is acquired by an undertaking referred to in subsection (7) in the circumstances specified in subsection (8). (7) The undertaking mentioned in subsection (6)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others. (8) The circumstances mentioned in subsection (6)(d) are that the control concerned is constituted by the undertaking's holding, on a temporary basis, securities acquired in another undertaking and any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists, is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities and not for the purpose of determining the manner in which any activities of the other undertaking, being activities that could affect competition in markets for goods or services in the State, are carried on. (9) In subsection (8) “specified period” means— (a) the period of 1 year from the date on which control of the other undertaking was acquired, or (b) if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Authority determines and specifies with respect to that case. Application of sections 18 to 22. 17.—Sections 18 to 22 are subject to section 23 (which provides for additional procedures in the case of a media merger). Obligation to notify certain mergers and acquisitions. 18.—(1) Where a merger or acquisition is agreed or will occur if a public bid that is made is accepted and— (a) in the most recent financial year— (i) the world-wide turnover of each of 2 or more of the undertakings involved in the merger or acquisition is not less than €40,000,000, (ii) each of 2 or more of the undertakings involved in the merger or acquisition carries on business in any part of the island of Ireland, and (iii) the turnover in the State of any one of the undertakings involved in the merger or acquisition is not less than €40,000,000, or (b) the merger or acquisition falls within a class of merger or acquisition specified in an order under subsection (5), each of the undertakings involved in the merger or acquisition shall notify the Authority in writing of the proposal to put the merger or acquisition into effect, and provide full details thereof, within 1 month after the conclusion of the agreement or the making of the public bid. (2) For the purpose of subsection (1)— (a) “turnover” does not include any payment in respect of value-added tax on sales or the provision of services or in respect of duty of excise, (b) subject to paragraph (c) an undertaking shall not be deemed to be involved in a merger or acquisition by virtue only of its being the vendor of any securities or other property involved in the merger or acquisition, and (c) in relation to a merger or acquisition that will occur by reason of the acquisition concerned being an acquisition referred to in section 16 (1)(c)— (i) subparagraphs (i) and (iii) of paragraph (a) of subsection (1), in their application to the second-mentioned undertaking in section 16 (1)(c), shall apply as if the references in them to the world-wide turnover and turnover in the State were, in relation to that undertaking, references, respectively, to the world-wide turnover and turnover in the State generated from the assets of that undertaking that are the subject of the acquisition mentioned in section 16 (1)(c), and (ii) notwithstanding paragraph (b), that second-mentioned undertaking shall, for the purposes of paragraph (a) or (b) of subsection (1) but not so as to place on it an obligation to notify the Authority of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition. (3) If— (a) 2 or more undertakings agree to a merger or acquisition, or (b) a merger or acquisition will occur if a public bid that is made is accepted, being in either case a merger or acquisition to which subsection (1) does not apply, any of the undertakings which have agreed to or are involved in the merger or acquisition may notify the Authority in writing of the proposal to put the merger or acquisition into effect, and provide full details thereof, within 1 month after the conclusion of the agreement or the making of the public bid. (4) Nothing in this section or any other provision of this Act prejudices the operation of Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings. (5) Where he or she is of opinion that the exigencies of the common good so warrant, the Minister may, after consultation with the Authority, by order specify a class or classes of merger or acquisition for the purposes of subsection (1)(b). (6) The Minister may by order amend or revoke an order under subsection (5) or a previous order under this subsection. (7) Every order under this section shall have effect on and from the date on which it is made and shall be laid before each House of the Oireachtas as soon as may be after it is made; if a resolution confirming the order is not passed by each such House within the next 21 days after that House has sat after the order is laid before it, the order shall lapse, but without prejudice to the validity of anything previously done thereunder. (8) A notification in accordance with this section shall be accompanied by such fee as may be prescribed and different fees may be prescribed for different classes of notification; if the notification is not accompanied by that fee the notification shall be invalid. (9) Where there is a contravention of subsection (1) or section 20 (2) the person in control of an undertaking which has failed to notify the Authority within the specified period or failed to supply the information required within the period specified by the Authority, as the case may be, shall be guilty of an offence and shall, subject to subsection (10), be liable— (a) on summary conviction, to a fine not exceeding €3,000, (b) on conviction on indictment, to a fine not exceeding €250,000. (10) Subsection (9) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the person referred to in that subsection is guilty of a separate offence under that subsection for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (9) shall have effect as if— (a) in paragraph (a), “€300” were substituted for “€3,000”, (b) in paragraph (b), “€25,000” were substituted for “€250,000”. (11) For the purposes of subsection (9) the person in control of an undertaking is— (a) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention, (b) in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention, (c) in the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the contravention. (12) A notification for the purposes of subsection (1) or (3) shall not be valid where any information provided or statement made under subsection (1) or (3) or section 20 (2) is false or misleading in a material respect, and any determination under this Part made on foot of such notification is void. (13) The transmission to the Authority by the Commission of a copy of a notification made to the Commission under Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings shall constitute a notification under subsection (1) in relation to the merger or acquisition concerned. (14) Irrespective of the date on which the Commission transmits a copy of the notification referred to in subsection (13), the date of receipt by the Authority of the Commission's decision under Council Regulation No. 4064/89 in relation to the merger or acquisition, the subject of the notification, shall be deemed to be the date of the notification for the purposes of this Act. Limitation on merger or acquisition being put into effect. 19.—(1) A merger or acquisition to which paragraph (a) or (b) of section 18 (1) applies, or which is referred to in subsection (3) of section 18 and has been notified to the Authority in accordance with that subsection, shall not be put into effect until— (a) subject to subsection (3), the Authority, in pursuance of section 21 or 22 , has determined that the merger or acquisition may be put into effect, or (b) the Authority has made a conditional determination in relation to the merger or acquisition, or (c) subject to subsection (4), the period specified in subsection (2) of section 21 has elapsed without the Authority having informed the undertakings which made the notification concerned of the determination (if any) it has made under paragraph (a) or (b) of that subsection (2), or (d) subject to subsection (5), 4 months after the appropriate date have elapsed without the Authority having made a determination under section 22 in relation to the merger or acquisition, whichever first occurs. (2) Any such merger or acquisition which purports to be put into effect, where that putting into effect contravenes subsection (1), is void. (3) Notwithstanding subsection (1)(a), the determination referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 12 months after the date on which the determination is made. (4) Notwithstanding subsection (1)(c), the failure by the Authority to inform the undertakings concerned of the matter referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 13 months after the appropriate date. (5) Notwithstanding subsection (1)(d), the absence of a determination by the Authority in the circumstances referred to in that provision shall not operate to permit the merger or acquisition concerned to be put into effect if the merger or acquisition is not put into effect before the expiry of the period of 16 months after the appropriate date. (6) In this section “appropriate date” means— (a) unless paragraph (b) applies, the date of receipt by the Authority of the notification of the merger or acquisition concerned under section 18 , (b) if the Authority has, under section 20 (2), made, within 1 month from the date of receipt by it of the notification of the merger or acquisition concerned under section 18 , a requirement or requirements of one or more of the undertakings concerned— (i) the date on which the requirement is complied with or, in case 2 or more requirements are made and each is complied with, whichever of the dates on which the requirements are complied with is the later or latest, (ii) where the requirement is not complied with or each of the 2 or more requirements is not complied with, the date immediately following the expiry of the period specified in the requirement or, as the case may be, the date immediately following the expiry of whichever of the respective periods specified in the requirements is the last to expire, or (iii) in case 2 or more requirements are made but one or more but not all of them are complied with, the later or latest of the following dates, namely the dates provided by applying— (I) subparagraph (i) to the requirement or requirements complied with, and (II) subparagraph (ii) to the requirement or requirements not complied with. (7) The reference in the definition of “appropriate date” in subsection (6) to the period specified in a requirement is a reference to the period specified in the requirement as being the period within which the information concerned shall be supplied. (8) For the purpose of the reference in subsection (6), and in any other provision of this Act, to the date on which the Authority receives a notification under section 18 , if a single notification is not made by all the undertakings concerned, the said reference shall be construed as a reference to the later or latest of the dates on which a notification of the merger or acquisition concerned under section 18 is received by the Authority. (9) Subsection (8) is without prejudice to section 18 (14). Examination by the Authority of notification. 20.—(1) In respect of a notification received by it, the Authority— (a) shall, unless the circumstances involving the merger or acquisition are such that the Authority considers it would not be in the public interest to comply with this paragraph— (i) cause a notice of the notification to be published within 7 days after the date of receipt of it, (ii) consider all submissions made, whether in writing or orally, by the undertakings involved in the merger or acquisition or by any individual or any other undertaking, (b) may enter into discussions with the undertakings involved in the merger or acquisition or with any individual or any other undertaking with a view to identifying measures which would ameliorate any effects of the merger or acquisition on competition in markets for goods or services, and (c) shall form a view as to whether the result of the merger or acquisition would be to substantially lessen competition in markets for goods or services in the State. (2) Where the Authority is of the opinion that, in order to consider for the purposes of this Part a merger or acquisition, it requires further information it may, by notice in writing served on the undertaking, require any one or more of the undertakings concerned to supply to it within a specified period specified information, and an undertaking of whom such a requirement is made shall comply with it. (3) In the course of the Authority's activities under subsection (1)(b), any of the undertakings involved in the merger or acquisition concerned may submit to the Authority proposals of the kind mentioned in subsection (4) with a view to the proposals becoming binding on it or them if the Authority takes the proposals into account and states in writing that the proposals form the basis or part of the basis of its determination under section 21 or 22 in relation to the merger or acquisition. (4) The proposals referred to in subsection (3) are proposals with regard to the manner in which the merger or acquisition may be put into effect or to the taking, in relation to the merger or acquisition, of any other measures referred to in subsection (1)(b). Determination of issues concerned without full investigation, etc. 21.—(1) In this section “appropriate date” has the same meaning as it has in section 19 . (2) In respect of a notification received by it, the Authority shall, within 1 month after the appropriate date, inform the undertakings which made the notification and any individual or any other undertaking from whom a submission concerning the notification was received of whichever of the following determinations it has made, namely— (a) that, in its opinion, the result of the merger or acquisition will not be to substantially lessen competition in markets for goods or services in the State and, accordingly, that the merger or acquisition may be put into effect, or (b) that it intends to carry out an investigation under section 22 in relation to the merger or acquisition. (3) Where the Authority makes a determination referred to in paragraph (a) or (b) of subsection (2), it shall publish that determination, with due regard for commercial confidentiality, within 2 months after the making of the determination. (4) If any of the undertakings which have made the notification concerned submits to the Authority proposals to which section 20 (3) applies, then subsection (2) shall have effect as if “45 days” were substituted for “1 month” in that subsection. Determination of issues concerned on foot of full investigation. 22.—(1) In this section “appropriate date” has the same meaning as it has in section 19 . (2) Having considered a notification made to it, the Authority may decide that it shall carry out an investigation (in this section referred to as a “full investigation”) in relation to the merger or acquisition concerned. (3) On completion of a full investigation in relation to the merger or acquisition concerned, the Authority shall make whichever of the following determinations it considers appropriate, namely that the merger or acquisition— (a) may be put into effect, (b) may not be put into effect, or (c) may be put into effect subject to conditions specified by it being complied with, on the ground that the result of the merger or acquisition will or will not, as the case may be, be to substantially lessen competition in markets for goods or services in the State or, as appropriate, will not be to substantially lessen such competition if conditions so specified are complied with. (4) Where the Authority makes a determination under subsection (3), it shall reduce the determination to writing (and the determination in that form is referred to in paragraph (a) and subsection (7) as a “written determination”) and— (a) furnish to the undertakings which made the notification a copy of the written determination within 4 months after the appropriate date, and (b) publish the determination, with due regard for commercial confidentiality, within 1 month after the making of the determination. (5) A determination under subsection (3)(c) that the merger or acquisition may be put into effect subject to specified conditions being complied with is referred to in this section as a “conditional determination”. (6) A conditional determination shall include a condition requiring the merger or acquisition to be put into effect within 12 months after the making of the determination. (7) A written determination under subsection (3) shall state the reasons for its making and shall include a report in relation to the full investigation. (8) Before making a determination under subsection (3), the Authority shall have regard to any relevant international obligations of the State. Provisions with regard to media mergers. 23.—(1) Within 5 days after the receipt by it of a notification in relation to a media merger, the Authority shall— (a) forward a copy of the notification to the Minister, and (b) notify the undertakings involved in the merger that it considers the merger to be …