Competition Act 2002

(d) (i) An adjudication officer shall not make a decision undersection 15Xwhere the adjudication officer has been involved in decisions of the competent authority as to whether to exercise any of the powers conferred on the competent authority under, or to bring proceedings under,Part 2, 2C, 2Eor2For sections 18 or 37 of the Act of 2014, in relation to the investigation.

(ii) An adjudication officer shall not draw up or decide upon—

(I) guidelines undersection 15AF, or

(II) the policy of the competent authority or of the relevant Minister concerning—

(A) the procedures, conduct or selection of investigations underPart 2C,

(B) referrals undersection 15M,

(C) the choice of enforcement mechanism undersection 15K,

(D) the level of administrative financial sanctions that may be imposed undersection 15X, or

(E) the level of reduction of administrative financial sanctions underPart 2E,

but may be consulted in the drawing up or deciding upon of such policy or guidelines, as the case may be.

(iii) Where a decision of a competent authority referred to insubparagraph (i)is made as a college, or in any other manner whereby a decision of a competent authority is treated as having been made by all members of the competent authority, a member of the competent authority who recused himself or herself from the process of making that decision shall, for the purposes ofsubparagraph (i), 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 a competent authority as an adjudication officer.

(2) Save where otherwise provided in this Act or in regulations made under this Act, adjudication officers shall not be subject to the direction of or accountable to or otherwise answerable to any other person in the performance of their functions under this Act.

(3) (a) The chairperson of a competent authority shall not during his or her term of office serve as an adjudication officer.

(b) A member of a competent authority may not during his or her term of office serve as Chief Adjudication Officer.

(4) (a) A member of the competent authority or a member of staff of the competent authority who is appointed as an adjudication officer or is appointed to assist an adjudication officer undersection 15Rshall not be required by the competent authority or by any other person to perform any duty, including any statutory duty, of a member of the competent authority, a member of staff of the competent authority, an authorised officer or an adjudication officer the performance of which is inconsistent with his or her independence as an adjudication officer or, in the case of a person appointed to assist an adjudication officer undersection 15R, the independence of an adjudication officer whom he or she is assisting or may assist.

(b) If a member of a competent authority or a member of staff of the competent authority is requested to perform a duty, including any statutory duty, of the competent authority, a member of staff of the competent authority, an authorised officer or an adjudication officer the performance of which he or she considers is inconsistent with his or her independence as an adjudication officer or, in the case of a person appointed to assist an adjudication officer undersection 15R, the independence of an adjudication officer whom he or she is assisting or may assist, he or she shall refuse to perform the duty and shall inform the Chief Adjudication Officer of the request and of his or her refusal.]

15Q. F55[Regulations for appointment and independence of adjudication officers

15Q.—(1) The relevant Minister shall make regulations—

(a) prescribing requirements upon the competent authority and adjudication officers to implementsections15Oand15P, and

(b) providing that adjudication officers shall not be involved in investigations of suspected infringements of relevant competition law, and shall not act as authorised officers under—

(i)section 15G,

(ii) section 35 (insofar as it relates to investigations of suspected infringements of relevant competition law) of the Act of 2014, or

(iii) the Act of 2002.

(2) In a manner ensuring the independence of adjudication officers in the performance of their functions, the regulations referred to insubsection (1)shall—

(a) identify categories of, and criteria for, persons eligible for nomination by the competent authority for appointment by the relevant Minister as adjudication officers (including a Chief Adjudication Officer) and criteria for renewal of appointment of adjudication officers by the Minister, which persons may, subject tosection 15P, include—

(i) members of the competent authority,

(ii) employees of the competent authority,

(iii) persons who are legally qualified,

(iv) such other persons as have, in the opinion of the competent authority and the Minister, sufficient expertise in matters of competition law, competition economics, or both, to merit such appointment, and

(v) such other persons as have, in the opinion of the competent authority and the Minister, the relevant expertise in matters likely to come before an adjudication officer,

and without prejudice to the generality of the foregoing, the competent authority may nominate, and the relevant Minister may appoint as an adjudication officer (including the Chief Adjudication Officer), a person who is not a member or employee of the competent authority,

(b) provide for—

(i) the term of appointment (including the term of appointment of a Chief Adjudication Officer), 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, competence-based and independently-assessed criteria referred to inparagraph (a),

(ii) the remuneration of the Chief Adjudication Officer and other adjudication officers, which remuneration may—

(I) not be reduced during the term of their appointment save in accordance with law,

(II) vary depending on the category of person appointed underparagraph (a), and

(III) be paid per diem, per piece, or periodically,

(iii) such prohibitions on the remuneration of adjudication officers during their term of office, by persons or bodies other than the competent authority, as are necessary to ensure that actual or perceived conflicts of interest do not arise in the performance of the adjudication officer’s functions,

(iv) the resignation from office of adjudication officers,

(v) procedures and criteria whereby the revocation of appointments of adjudication officers may only take place upon decision by the Government after independent assessment and recommendation by persons outside the competent authority with relevant experience and expertise and where—

(I) the adjudication officer concerned has become incapable through ill-health of effectively performing his or her functions,

(II) the adjudication officer concerned has engaged in serious misconduct, or

(III) the competent authority has been notified of an adjudication officer’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 adjudication officer of an employee of the competent authority upon cessation of that employment,

(vi) the functions of the Chief Adjudication Officer and, where no Chief Adjudication Officer stands appointed, the procedure for designation of an adjudication officer to perform the functions of a Chief Adjudication Officer under this Act,

(vii) the rules concerning designation by a Chief Adjudication Officer of adjudication officers to divisions for any particular period or for any particular case or category of cases,

(viii) the rules concerning decisions by a division of adjudication officers, including the appointment and functions of chairpersons and deputy chairpersons of such divisions,

(ix) the rules concerning promotion and increments of employees of the competent authority who act as adjudication officers,

(x) the rules concerning the tasking of any employee of the competent authority to assist an adjudication officer in the performance of his or her functions under this Act, and

(xi) the rules concerning the appointment of consultants or advisers for the purpose of assisting an adjudication officer in the performance of his or her functions under this Act,

(c) make further provision for the independence of adjudication officers (including an effective internal separation between the functions of the competent authority and the functions of adjudication officers) and any such regulation shall include provision (where appropriate)—

(i) that adjudication officers and employees of the competent authority tasked with assisting adjudication officers shall not communicate with authorised officers, employees and members of the competent authority in respect of any proceeding relating to relevant competition law before the competent authority arising under this Act save on notice to the undertakings concerned in those proceedings the subject of a referral undersection 15M, or as otherwise permitted by regulations, which may include communications relating to investigations in which the adjudication officers, and employees of the competent authority tasked with assisting the adjudication officers, have not been nor will be involved in any decision undersection 15Xor in any related referral undersection 15M,

(ii) that documentation and other information concerning an investigation conducted underPart 2Cwhich have been obtained by the competent authority in the exercise of its functions under this Act and the Act of 2014, shall not be disclosed to adjudication officers that have been directed to make a decision undersection 15Xin relation to that same investigation or to employees of the competent authority or other persons (including any consultant or adviser) tasked with assisting such adjudication officers save in accordance with this Act and upon notice to the undertakings concerned in any referral undersection 15M,

(iii) for arrangements for oversight by specified members or employees of the competent authority for compliance by the competent authority withsection 15Pand the regulations made thereunder,

(iv) for reporting to the relevant Minister or the competent authority by specified members or employees of the competent authority or by adjudication officers of any breach ofsection 15Pand the regulations made thereunder, and mechanisms for remedying any such breach,

(v) for specification of the functions of the competent authority which an adjudication officer can perform,

(vi) for the structure of the competent authority,

(vii) for the policies, practices and functions of the competent authority, and

(viii) for arrangements for working conditions within the competent authority,

(d) require the competent authority to publish policies and implement measures sufficient to identify and manage conflicts of interest on the part of—

(i) adjudication officers, and

(ii) any employee of the competent authority or other person (including any consultant or adviser) tasked with assisting an adjudication officer in the performance of his or her functions under this Act,

and

(e) require the Chief Adjudication Officer and the competent authority to report annually to the relevant Minister on the compliance by the competent authority and the adjudication officers with the principle of independence undersection 15Pand any regulations made hereunder and the policies the adjudication officers or the competent authority have adopted in order to do so.]

15R. F56[Appointment of assistants to adjudication officers

15R.—(1) (a) The competent authority may from time to time—

(i) require any employee of the competent authority, or

(ii) appoint such persons (including any consultant or adviser) as it considers necessary,

to assist adjudication officers, or an individual adjudication officer (including the Chief Adjudication Officer), in the performance of their, or his or her, functions under this Act.

(b) Persons assisting an adjudication officer underparagraph (a)shall not provide such assistance in connection with any matter in which they have or may have a conflict of interest.

(c) The Chief Adjudication Officer may at any time direct that an employee required to assist the adjudication officers, or an individual adjudication officer, undersubsection (1)(a)(i)in the performance of their powers and functions under this Act, be reassigned by the competent authority.

(2) Persons required to, or appointed to as the case may be, assist adjudication officers undersubsection (1)may perform other tasks on behalf of the competent authority, including performing tasks in any investigation in which they have not been, and will not be, involved in assisting an adjudication officer under this section, but they shall be solely responsible to the Chief Adjudication Officer, or to the adjudication officer or adjudication officers to which they have been individually assigned, in relation to their performance of the tasks referred to insubsection (1).

(3) (a) Employees of the competent authority who have been required to assist adjudication officers undersubsection (1)(a), and persons appointed by the competent authority to assist adjudication officers undersubsection (1)(a), shall not be subject to the direction of any member or employee of the competent authority in relation to the performance of the functions referred to in that subsection.

(b) Nothing inparagraph (a)shall preclude an employee of the competent authority or other person appointed by the competent authority being subject to the direction of a member or employee of the competent authority in relation to the performance of tasks not referred to insubsection (1)(a).

(4) Without prejudice to the responsibility of the competent authority for employment and for entering into contracts and determining all matters relevant thereto, where an adjudication officer has made a determination that specific assistance is required in a particular matter referred to an adjudication officer for a decision undersection 15M, the adjudication officer shall be consulted on decisions concerning the appointment and assignment of persons to provide assistance to adjudication officers undersubsection (1).

(5) (a) The relevant Minister may prescribe detailed requirements governing the appointment and assignment of persons to assist adjudication officers under subsection (1).

(b) The relevant Minister may, where it is necessary to enable the proper functioning of the competent authority, make regulations prescribing such limited exceptional circumstances in which persons referred to insubsection (3)(a)may be subject to a direction referred to in that subsection.]

15S. F57[Effect of appointment of an adjudication officer upon terms of employment or contract

15S.—(1) Nothing in this Part shall preclude the competent authority from relying on any aspect of a contract of service or for services in relation to the performance or non-performance of functions other than—

(a) the functions of an adjudication officer under this Act, and

(b) the functions of a person appointed to assist an adjudication officer undersection 15R(1)(a)when assisting an adjudication officer.

(2) (a) The appointment of a person as an adjudication officer shall not in itself—

(i) constitute employment by or within the competent authority,

(ii) constitute the holding of a position in the civil service, or

(iii) otherwise create a contract between an adjudication officer on the one part and the Minister or the competent authority on the other part.

(b) Save in relation to the application of independence requirements to an adjudication officer, nothing in this Part shall alter the terms and conditions of employment of an adjudication officer who is an employee of the competent authority on the date on which section 13 of the Competition (Amendment) Act 2022 comes into operation.

(3) Save for limited exceptions consistent with the independence of adjudication officers in the exercise of their functions which the relevant Minister may prescribe, nothing in this Part shall prevent the application by the competent authority of disciplinary procedures under a contract of employment save in respect of—

(a) the tasks of an adjudication officer under this Act, and

(b) the tasks of a person appointed to assist an adjudication officer undersection 15R(1)(a)when assisting an adjudication officer.

(4) The relevant Minister may make regulations to give further effect to this section.]

15T. F58[Division of adjudication officers

15T.—(1) At the discretion of the Chief Adjudication Officer, adjudication officers may (in a particular proceeding or otherwise) sit as a division, and in such circumstances references to an adjudication officer in this Act shall be considered to be references to a division of adjudication officers.

(2) (a) A division of the adjudication officers referred to insubsection (1)shall consist of such uneven number of adjudication officers as the Chief Adjudication Officer may determine either for any particular proceeding or group of proceedings or for any type of proceedings as the Chief Adjudication Officer shall consider appropriate.

(b) When establishing a division, the Chief Adjudication Officer shall have regard to the complexity of the anticipated proceedings, the potential for a balance of skills amongst the adjudication officers in such proceedings, and the need for consistent decision-making.]

15U. F59[Action by adjudication officer after receiving referral

15U.—(1) As soon as practicable after a referral has been made undersection 15M, the adjudication officer shall, subject tosubsection (3), give the undertaking or association of undertakings—

(a) a copy of this section,

(b) in respect of a referral undersection 15M(2), a written notice stating that the undertaking or association of undertakings may make submissions in writing to the adjudication officer on the full investigation report prepared undersection 15Lwithin the period of 30 working days from the date the undertaking or association of undertakings receives the notice, or such further period, not exceeding 15 working days, as the adjudication officer may allow, and

(c) in respect of a referral undersection 15M(1), a notice stating that the matter has been referred for an order on consent undersection 15X(8)and asking the undertaking or association of undertakings to confirm the matters set out inparagraphs (a)and(b)ofsection 15X(8)within the period of 15 working days from the day the undertaking or association of undertakings receives the notice, or such further period, not exceeding 7 working days, as the adjudication officer may allow.

(2) The adjudication officer may do any of the following that he or she considers necessary to resolve an issue of fact or otherwise enable the adjudication officer to make a decision undersection 15X:

(a) exercise any of the powers undersection 15W;

(b) request further information from the undertaking or association of undertakings;

(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 full investigation report prepared undersection 15Lto the person;

(d) conduct an oral hearing.

(3) Where an oral hearing takes place at which an undertaking or association of undertakings may make submissions to the adjudication officer on the full investigation report prepared undersection 15L(9), the adjudication officer shall not be required to give to the undertaking, or association of undertakings, the material referred to insubsection (1).

(4) As soon as practicable after making a request undersubsection (2)(c), the adjudication officer shall give to the competent authority, and shall, with due regard for the protection of commercially sensitive information, give to the undertaking or association of undertakings a copy of the request.

(5) As soon as practicable after receiving any information pursuant to a request undersubsection (2)(c), the adjudication officer shall, with due regard for the protection of commercially sensitive information, give the competent authority and the undertaking or association of undertakings—

(a) a copy of the information or, where the protection of commercially sensitive information means that such information cannot be provided in full, a summary of such information, and

(b) written notice stating that the competent authority and the undertaking or association of undertakings may make submissions in writing to the adjudication officer on the information within the period of 20 working days from the day the undertaking or association of undertakings receives the notice, or such further period, not exceeding 10 working days, as the adjudication officer may allow.

(6) A person who receives a copy of a report undersubsection (2)(c)shall not, without the prior authorisation of the adjudication officer, disclose the existence or the content of the report to any other person.

(7) A person who contravenessubsection (6)shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(8) An adjudication officer may direct an employee of the competent authority required to assist with his or her functions to make any communication on his or her behalf.]

15V. F60[Admissibility of evidence and rules for oral hearings

15V.—(1) This section applies to an oral hearing before an adjudication officer undersection 15U.

(2) An adjudication officer may, by notice in writing—

(a) summon a witness (including an authorised officer) to appear to give evidence, or to produce before the adjudication officer 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 adjudication officer.

(3) An adjudication officer may require evidence to be given on oath, and may for that purpose—

(a) require a witness to take an oath, and

(b) administer an oath to the witness orally or permit the witness to affirm.

(4) The oath 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.

(5) The adjudication officer may allow a witness at the oral hearing to give evidence by tendering a written statement, provided such statement is verified on oath.

(6) Without prejudice tosubsections (1)to(5), the adjudication officer 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 otherwise (including witnesses who are outside the State);

(b) compelling the production (including discovery) of records or an identified category or categories of records.

(7) An oral hearing under this section may, at the discretion of the adjudication officer, be held remotely (including in an online format), and evidence may be tendered as permitted by regulations or by an adjudication officer.

(8) At the oral hearing before the adjudication officer—

(a) an authorised officer or other representative of the competent authority or any other person, with leave of the adjudication officer, 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 thereunder.

(9) (a) A person to whom notice is given undersubsection (2) may be examined and cross-examined at the oral hearing.

(b) At any oral hearing before an adjudication officer, there shall be a right to cross-examine witnesses and call evidence in defence and reply.

(10) (a) An oral hearing before an adjudication officer shall be held in public unless the adjudication officer 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.

(b) If special circumstances exist (which shall include whether information given or likely to be given in evidence is commercially sensitive information), an adjudication officer may impose restrictions on the reporting or distribution of information given at the hearing.

(11) 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 adjudication officer and such expenses shall be discharged by the competent authority.

(12) The rules of evidence shall apply to an oral hearing before an adjudication officer save as may be otherwise prescribed.

(13) Nothing in this section orsection 15Wcompels 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.

(14) (a) The relevant Minister may make regulations setting out further details or conditions for the receipt of evidence or the conduct of oral hearings under this section.

(b) Subject to any regulations underparagraph (a), the competent authority shall make rules providing for the conduct of an oral hearing under this section and shall publish such rules on a website maintained by it or on its behalf.

(c) Rules made underparagraph (b)shall not have effect until they are published.]

15W. F61[Powers and offences

15W.—(1) At any time after a referral undersection 15M(2), an adjudication officer may, whether on application by the competent authority, by an undertaking or association of undertakings concerned in the matter which is the subject of the referral or of the adjudication officer’s own motion, and where the adjudication officer is satisfied that such direction is necessary to the determination of the issues before the adjudication officer—

(a) direct authorised officers of the competent authority, or the undertaking or association of undertakings concerned, (each of which, in this section, is referred to as a ‘party’), to answer (whether on oath or otherwise) an identified question in whatever manner or form the adjudication officer 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 adjudication officer may deem necessary.

(2) An answer to a question put to a person in response to a requirement undersubsection (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.

(3) A summons issued by the adjudication officer for the purpose of an oral hearing undersection 15Vmay 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.

(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.

(5) A person is guilty of an offence if the person—

(a) to whom notice is given undersection 15Vdoes not comply with a requirement referred to in that section,

(b) subject to a direction undersubsection (1), fails to comply with a requirement of that subsection,

(c) having been duly summoned to attend before an adjudication officer undersection 15V(2)(a)fails without reasonable excuse to attend at the time and place indicated on the summons,

(d) while attending as a witness before an adjudication officer at an oral hearing undersection 15Vrefuses to—

(i) give evidence in the manner lawfully required by the adjudication officer to be taken,

(ii) produce any record in the person’s power or control that the person is lawfully required by the adjudication officer to produce, or

(iii) answer any question that the person is lawfully required by the adjudication officer to answer,

or

(e) while attending before the adjudication officer engages in any conduct that, if the adjudication officer were a court of law having power to punish for contempt, would be contempt of court.

(6) The Court may, where a person fails to comply with a requirement undersection 15V(2), with a direction undersubsection (1), with a summons to attend before an adjudication officer, or refuses, while attending as a witness before the adjudication officer, to do anything referred to insubsection (5)that the person is lawfully required by an adjudication officer to do, or otherwise fails to comply with a direction or order of the adjudication officer, on summary application by a party on notice to that person—

(a) by order require the person to attend before the adjudication officer 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.

(7) A person is guilty of an offence if, having been or in anticipation of being required to produce a book, document or record undersubsection (1)(b)or undersection 15V(2)(a), 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.

(8) If information or evidence is provided by a person to an adjudication officer in connection with any function of an adjudication officer under this Part, that person is guilty of 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.

(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 adjudication officer in connection with any of his or her functions under this Act, is guilty of an offence.

(10) A person guilty of an offence undersubsection (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.

(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).

(12) (a) An adjudication officer may refer to the Director of Public Prosecutions a suspected breach of a hearing requirement under this section orsection 15Vwithout the necessity for an investigation by the competent authority.

(b) Subject tosection 15X, an adjudication officer may impose a periodic penalty payment undersection 15AD(1)(b)in respect of a breach of a hearing requirement without the necessity for an investigation by the competent authority and without a referral undersection 15Mseparate to the proceedings in which the breach has arisen.

(13) The relevant Minister may make regulations setting out further details or conditions for the exercise of the powers of adjudication officers and the competent authority under this section.

(14) In this section, "Court" means the High Court.]

15X. F62[Decision by the adjudication officer

15X.—(1) An adjudication officer shall consider the following when making a decision referred to him or her undersection 15M(2)in relation to any alleged infringement of relevant competition law, breach of a procedural requirement, failure to comply with a structural or behavioural remedy, failure to comply with commitments entered into undersection 15AEor failure to comply with a prohibition notice:

(a) the statement of objections (and any supplementary statement of objections) prepared by the competent authority;

(b) the full investigation report prepared by the competent authority undersection 15L(9);

(c) any written submissions made by the undertaking or association of undertakings concerned on the content of the statement of objections and the full investigation report;

(d) any submissions, statements, admissions, information, records or other evidence provided to the adjudication officer in the course of the proceedings;

(e) any prior relevant decision of an adjudication officer under this Act, other than insofar as such decision has not been confirmed by the High Court undersection 15AYor15AZ.

(2) In any matter referred to an adjudication officer for decision undersection 15M(2), an adjudication officer—

(a) may make a decision as to whether, on the balance of probabilities—

(i) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently committed an infringement of relevant competition law, and whether that infringement is continuing,

(ii) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently breached a procedural requirement or a hearing requirement, and whether that breach is continuing,

(iii) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with commitments entered into undersection 15AE, and whether that failure is ongoing,

(iv) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with a structural or behavioural remedy imposed under this section in accordance withsection 15Z, and whether that failure is ongoing, or

(v) an undertaking or association of undertakings has or has not intentionally, recklessly or negligently failed to comply with a prohibition notice issued undersection 15H, and whether that failure is ongoing,

and

(b) may, having made a decision underparagraph (a), do one or more of the following:

(i) impose structural or behavioural remedies on the undertaking or association of undertakings concerned in accordance withsection 15Z;

(ii) impose an administrative financial sanction on the undertaking or association of undertakings concerned in accordance withsection 15AA;

(iii) impose periodic penalty payments on the undertaking or association of undertakings concerned in accordance withsection 15AD.

(3) (a) For the avoidance of doubt, a decision undersubsection (2)may be formed in relation to conduct that is no longer ongoing.

(b) (i) After reaching a decision undersubsection (2)(a)and prior to making a decision underparagraph (b)of that subsection, the adjudication officer shall provide the competent authority and the undertaking or association of undertakings with a copy of the decision undersubsection (2)(a)and shall inform the competent authority and the undertaking or association of undertakings of—

(I) if any, the structural or behavioural remedies that the adjudication officer proposes to impose on the undertaking or association of undertakings, and

(II) the amount of any periodic penalty payment or administrative financial sanction that the adjudication officer proposes to impose, and the criteria that the adjudication officer considers applicable to the determination of such amount.

(ii) The adjudication officer may invite written submissions from the competent authority and the undertaking or association of undertakings in accordance withsubparagraph (iii).

(iii) The competent authority and the undertaking or association of undertakings may, within a period of 15 working days from the date of being informed of the matter described insubparagraph (i), or such further period as is considered appropriate by the adjudication officer, make submissions in writing to the adjudication officer in relation to the application of the criteria insection 15Z,15AA,15ABor15ADand may make submissions in regard to guidelines made by the competent authority undersection 15AF.

(iv) The adjudication officer may by notice in writing request the undertaking or association of undertakings to provide, in writing, within a period specified in the notice, such information as the adjudication officer considers appropriate for the purpose of determining the sanction to be imposed.

(v) Nothing in this paragraph shall preclude the adjudication officer from imposing a structural or behavioural remedy or administrative financial sanction or periodic penalty payments different to that proposed, or outside the range of that proposed, undersubparagraph (i).

(vi) Where an adjudication officer imposes a periodic penalty payment on an undertaking or association of undertakings under this section, the amount of the periodic penalty payment shall be calculated in accordance withsection 15ADand shall be reckoned from the date of the decision undersubsection (2)(a).

(vii) Without prejudice to the reckoning of time undersubparagraph (vi)of this subsection, a decision undersubsection (2)shall not have effect, be questioned undersection 15AYor be the subject of a notice undersection 15Yuntil a decision under bothsubsection (2)(a)and, where applicable,subsection (2)(b)has been made.

(4) In determining the amount of any administrative financial sanction to be imposed, the adjudication officer shall have regard to—

(a) the matters outlined insections 15ABand15AC, and

(b) the imposition of any structural or behavioural remedies in accordance withsection 15Z.

(5) A decision undersubsection (2)shall include details in relation to—

(a) the decision made,

(b) the date of the decision,

(c) the reasons for the decision,

(d) the statement of objections, information, records, documents, statements, admissions, evidence and written and oral submissions considered,

(e) the right of appeal provided for undersection 15AYwhere a final decision undersubsection (2)has been made,

(f) the time limits within which the undertaking or association of undertakings is required, in default of any relevant appeal, to pay the administrative financial sanction or periodic penalty payment, or give effect to the structural or behavioural remedy imposed, as the case may be,

(g) the name of the undertaking or association of undertakings concerned, and

(h) such other particulars or material as the adjudication officer considers appropriate.

(6) The relevant Minister may make regulations setting out detailed requirements to implement this section and otherwise for the conduct of proceedings before an adjudication officer in any matter referred to an adjudication officer for decision (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 a statement of objections or supplementary statement of objections prepared by the competent authority in accordance withsection 15L;

(b) the form and manner of provision of information, records, documents, statements, admissions and evidence to be provided to the competent authority or to the adjudication officer;

(c) time limits to apply to the making and conduct of proceedings;

(d) the attendance of witnesses at an oral hearing;

(e) the form and manner of making of requests by an adjudication officer for information, discovery or disclosure from a party to a proceeding, or a person other than a party;

(f) the provision by the competent authority or by an adjudication officer to a party to a proceeding, or a person other than a party to proceedings, of information received by the adjudication officer or the competent authority;

(g) procedures for the consolidation and hearing of two or more proceedings together;

(h) procedures for the separation of proceedings;

(i) the publication on a website maintained by or on behalf of the competent authority 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;

(j) the form and manner in which a proceeding may be withdrawn;

(k) 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.

(7) In accordance withsection 15AF, a competent authority shall, on a website maintained by or on behalf of the competent authority, publish guidelines on the conduct of proceedings and may publish guidelines on any of the matters the subject ofsubsection (6).

(8) At any time after a referral undersection 15M, and with the consent of the competent authority, an adjudication officer may impose on the undertaking or association of undertakings the subject of the referral an administrative financial sanction, a structural or behavioural remedy or both such sanction and such remedy, if—

(a) the undertaking or association of undertakings the subject of a referral undersection 15M(1)acknowledges that it is committing or has committed an infringement of relevant competition law, and

(b) such undertaking or association of undertakings consents to the imposition of a specific administrative financial sanction, the specific structural or behavioural remedy, or both, as the case may be.

(9) No order as to costs shall be made in proceedings before an adjudication officer, save that an adjudication officer may in his or her discretion award the costs of proceedings before an adjudication officer—

(a) against the undertaking or association of undertakings, in the event that it is found to have infringed relevant competition law and if the adjudication officer finds that the undertaking or association of undertakings has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged infringement or in the conduct of its defence before an adjudication officer, or

(b) against the competent authority in the event that no infringement is found and if the adjudication officer finds that the competent authority has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged infringement or in its conduct of the proceedings before the adjudication officer.]

15Y. F63[Notice of decision

15Y.—(1) As soon as practicable after the adjudication officer has made a decision undersection 15X(including, in respect of a decision undersection 15X(2), both the decision undersection 15X(2)(a)and, where applicable, the decision undersection 15X(2)(b)), the adjudication officer shall furnish the competent authority with the decision.

(2) (a) The competent authority shall, within 7 working days of receipt of the decision referred to insubsection (1), give notice in writing of the decision to the undertaking or association of undertakings concerned.

(b) The notice underparagraph (a)shall—

(i) include a copy of the decision referred to insubsection (1),

(ii) state that, in respect of an administrative financial sanction, an Article 16(2) periodic penalty payment, a hearing requirement periodic penalty payment or a structural or behavioural remedy, the decision does not take effect unless it is confirmed by the court in accordance withsection 15AYor15AZ, as the case may be, and

(iii) state that, in respect of an administrative financial sanction, an Article 16(2) periodic penalty payment or a behavioural or structural remedy, if the undertaking or association of undertakings does not appeal undersection 15AY, the competent authority must, as soon as is practicable after the expiration of the period for the making of an appeal, make an application for confirmation of the decision in accordance withsection 15AZ.

(c) The competent authority may provide a copy of a notice referred to insubsection (1)to a person other than the undertaking or association of undertakings where it considers it appropriate to do so.

(3) A copy of the decision or order referred to insubsection (1)shall be published on a website maintained by or on behalf of the competent authority.

(4) A decision or order referred to insubsection (1)or published undersubsection (3)may contain such redactions as the adjudication officer considers necessary and appropriate, in respect ofsubsection (1)on his or her own motion, or in respect ofsubsections (2)and(3)upon application of the competent authority or any undertaking or association of undertakings concerned—

(a) to protect commercially sensitive information,

(b) to protect the rights of the undertaking or association of undertakings concerned or any other person, or

(c) for any other good and sufficient reason.

(5) (a) A person who receives a copy of a notice undersubsection (2)prior to the publication of the decision undersubsection (3)shall not, without the prior authorisation of the adjudication officer, disclose the existence or the content of the notice to any other person.

(b) A person who receives a copy of a notice undersubsection (2)which contains material redacted from publication undersubsection (3)shall not, without the prior authorisation of the adjudication officer, disclose the content of the redacted material to any other person.

(6) A person who fails to comply with a request to provide information undersection 15X(3)(b)(iv), or a person who contravenessubsection (5), shall be guilty of an offence and shall be 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.

(7) Summary proceedings in relation to an offence undersubsection (6)may be brought by the competent authority.]

15Z. F64[Structural or behavioural remedies

15Z.—(1) Where an adjudication officer makes a decision undersection 15Xto impose a structural or behavioural remedy on an undertaking or association of undertakings, such remedy shall be imposed in accordance with this section.

(2) In this Act, "structural or behavioural remedy" means any remedy or obligation requiring an undertaking or association of undertakings to take, or to refrain from taking, any action relating to the behaviour or structure of an undertaking or association of undertakings and includes requiring the undertaking or association of undertakings in question to do one or more of the following:

(a) to sell or divest itself of any matter, including business, assets, shares, real property or intellectual property;

(b) to modify or constrain its conduct in specified ways;

(c) to grant specified undertakings access to assets, facilities, technology, infrastructure, information or services;

(d) to implement ring-fencing arrangements to prevent the sharing of specified competitively sensitive information;

(e) to cease a specified conduct or practice;

(f) to unbundle two or more products which were previously offered to customers jointly;

(g) to discontinue customer rebate schemes, or a part of any such schemes;

(h) to prevent the flow of competitively sensitive information between undertakings or within divisions, units, departments or other organisational units within an undertaking.

(3) The adjudication officer shall not impose a structural or behavioural remedy on an undertaking or association of undertakings under this section unless—

(a) imposing the remedy is necessary to bring an existing infringement of relevant competition law to an end or to prevent a similar infringement of relevant competition law from reoccurring in future, and

(b) the remedy imposed is proportionate to the infringement of relevant competition law committed.

(4) Where more than one structural or behavioural remedy would be equally effective for the purpose of bringing the infringement of relevant competition law in question to an end, the adjudication officer shall choose the remedy that is least burdensome for the undertaking or association of undertakings in question.

(5) A decision to impose a structural or behavioural remedy shall not take effect unless the decision is confirmed by the High Court undersection 15AYor15AZ.]

15AA. F65[Administrative financial sanctions

15AA.—(1) An adjudication officer may, in accordance withsection 15X, impose administrative financial sanctions on undertakings and associations of undertakings, which sanctions shall be effective, proportionate and dissuasive, where the adjudication officer determines—

(a) undersection 15X(2)(a)(i)that the undertaking or association of undertakings committed an infringement of relevant competition law, including where the adjudication officer determined that the infringement is ongoing,

(b) undersection 15X(2)(a)(ii)that the undertaking or association of undertakings breached a procedural requirement, including where the adjudication officer determined that the breach is ongoing,

(c) undersection 15X(2)(a)(iii)that the undertaking or association of undertakings failed to comply with commitments entered into undersection 15AE, including where the adjudication officer determined that the failure to comply is ongoing,

(d) undersection 15X(2)(a)(iv)that the undertaking or association of undertakings failed to comply with a structural or behavioural remedy ordered undersection 15Xin accordance withsection 15Z, including where the adjudication officer determined that the failure to comply is ongoing, or

(e) undersection 15X(2)(a)(v)that the undertaking or association of undertakings failed to comply with a prohibition notice issued undersection 15H, including where the adjudication officer determined that the infringement is ongoing.

(2) Where an adjudication officer makes a decision undersection 15Xand the provision of relevant competition law, or the alleged breach of a procedural requirement, in respect of which the decision was made is a provision the breach of which would constitute an offence, the undertaking or association of undertakings in respect of which the decision was made is not liable to be prosecuted or punished for the offence in respect of the conduct to which the decision relates.

(3) An adjudication officer may not impose an administrative financial sanction on an undertaking or association of undertakings for an infringement of relevant competition law or a breach of a procedural requirement—

(a) if the undertaking or association of undertakings has been charged with having committed an offence under a law of the State,

(b) if—

(i) criminal proceedings are ongoing in respect of the infringement,

(ii) that undertaking or association of undertakings has been found guilty of having committed the offence, or

(iii) that undertaking or association of undertakings has been found not guilty of having committed the offence where proceedings have determined other than by way of nolle prosequi,

and

(c) if the offence involves the same infringement or a breach of a procedural requirement as is before the adjudication officer.

(4) A decision to impose an administrative financial sanction shall not take effect unless the decision is confirmed by the High Court undersection 15AYor15AZ, as the case may be.

(5) The adjudication officer may, having imposed an administrative financial sanction under this section on an undertaking (in this subsection referred to as the "sanctioned undertaking"), and where he or she considers that it is necessary to do so in order for that sanction to be effective, proportionate or dissuasive, impose the sanction (either jointly with or separately to the sanctioned undertaking) on one or more of the following:

(a) a person or undertaking that exercises direct or indirect control over the sanctioned undertaking;

(b) an undertaking of which the sanctioned undertaking is a subsidiary or parent undertaking;

(c) an undertaking the directors, shareholders or partners of which, or any other persons exercising control over which, knew or ought reasonably to have known about the matter in respect of which the administrative financial sanction was imposed on the sanctioned undertaking;

(d) a person, company, undertaking or any other entity forming part of the same economic unit as the sanctioned undertaking.]

15AB. F66[Calculation of administrative financial sanctions

15AB.—(1) When determining the amount of the administrative financial sanction to be imposed in respect of the matters set out insection 15AA(1), an adjudication officer shall have regard to—

(a) the need to ensure that any administrative financial sanction imposed is effective, proportionate and dissuasive,

(b) the gravity of the matter in respect of which an administrative financial sanction is imposed,

(c) in respect of an infringement of relevant competition law—

(i) the duration of the infringement,

(ii) the value of the undertaking’s sales of the goods and services to which the infringement directly or indirectly relates, and

(iii) where applicable, the amount of any compensation paid as a result of a consensual settlement in accordance with Article 18(3) of Directive 2014/104/EU^4,

(d) any specific factors, criteria or methodology relevant toparagraphs (a),(b)and(c)which are prescribed by the relevant Minister to be taken into account by an adjudication officer in the calculation of the amount of administrative financial sanctions, and

(e) any guidelines issued by the competent authority undersection 15AFin respect of specific factors, criteria or methodology relevant to the calculation of the amount of administrative financial sanctions.

(2) Where an administrative financial sanction is imposed on an association of undertakings undersection 15AAin respect of an infringement of relevant competition law underParts 2Cto2G, and such sanction is imposed not only on the association of undertakings but also on its members, the turnover of the members on which an administrative financial sanction is imposed shall not be taken into account when calculating the administrative financial sanction to be imposed on the association.

(3) (a) Where—

(i) an administrative financial sanction is imposed on an association of undertakings undersection 15AAin respect of an infringement of relevant competition law underParts 2Cto2G, and the infringement relates to the activities of its members, and

(ii) an administrative financial sanction is not also imposed on the individual members of the association,

an adjudication officer may consider the value of the sales of goods and services to which the infringement directly or indirectly relates by the undertakings that are members of the association when calculating the administrative financial sanction to be imposed on the association of undertakings.

(b) Ifparagraph (a)is applied, in circumstances where the association of undertakings is not solvent, the association shall call for contributions from its members to cover the amount of the administrative financial sanction imposed.

(4) Where, following a decision confirming an administrative financial sanction undersection 15AYor15AZ, as the case may be, contributions referred to insubsection (3)have not been made in full to the association of undertakings within the time limit fixed by the High Court, the competent authority may refer the matter back to an adjudication officer who may require any of the undertakings whose agents or representatives were members of the decision-making bodies of that association to pay the administrative financial sanction.

(5) Where necessary to ensure full payment of the administrative financial sanction referred to insubsection (4), after the adjudication officer has required payment from such undertakings, the adjudication officer may also require the payment (on a joint and several basis) of the outstanding amount of the administrative financial sanction by any of the members of the association that were active on the market on which the infringement of relevant competition law occurred notwithstanding any decision made by the adjudication officer undersection 15X(2)that such members of the association had not intentionally, recklessly or negligently committed the relevant infringement.

(6) The provisions ofsections 15AYor15AZshall apply, mutatis mutandis, to a decision or requirement of an adjudication officer undersubsections (4)or(5).

(7) Payment undersubsection (5)shall not be required from an undertaking that proves, in accordance with such procedures as may be prescribed, on the balance of probabilities that—

(a) it did not implement the infringement of relevant competition law of the association of undertakings, and

(b) it—

(i) was not aware of the existence of the infringement, or

(ii) actively distanced itself from the infringement before the investigation underPart 2Ccommenced.

(8) (a) After determining the amount of the administrative financial sanction to be imposed on an undertaking or association of undertakings, and prior to making a decision undersection 15X(2)(b)(iii), the adjudication officer shall apply any decision made by the competent authority underPart 2Ein respect of such undertaking or association of undertakings regarding—

(i) immunity from administrative financial sanctions, or

(ii) a reduction in the amount of administrative financial sanctions.

(b) An adjudication officer shall not vary any decision of the competent authority made underPart 2Eregarding the level of reduction to be applied to the administrative financial sanctions that would otherwise have been imposed on the undertaking or association of undertakings concerned.

(9) The relevant Minister may prescribe rules for the purposes of the implementation of this section.]

15AC. F67[Maximum amount of administrative financial sanctions

15AC.—(1) The maximum amount of an administrative financial sanction that an adjudication officer may impose under this Part in respect of an infringement of relevant competition law, for failure to comply with commitments entered into undersection 15AE, for failure to comply with a structural or behavioural remedy or for failure to comply with a prohibition notice issued undersection 15Hshall be the greater of €10 million or 10 per cent of the total worldwide turnover of the undertaking or association of undertakings in the financial year preceding the decision.

(2) Where an infringement of relevant competition law, failure to comply with commitments entered into undersection 15AE, failure to comply with a structural or behavioural remedy or a failure to comply with a prohibition notice issued undersection 15Hby an association of undertakings relates to the activities of its members, the maximum amount of the administrative financial sanction shall be €10 million or 10 per cent of the sum of the total worldwide turnover (whichever is greater) of each member active on the market affected by the infringement of the association.

(3) The maximum amount of an administrative financial sanction that an adjudication officer may impose with respect to a breach of a procedural requirement in accordance withsection 15AAshall be €1 million or 1 per cent of the total worldwide turnover (whichever is greater) of the undertaking or association of undertakings in the financial year preceding the decision.

(4) Where the breach of the procedural requirement by an association of undertakings relates to the activities of its members, the maximum amount of the administrative financial sanction shall be €1 million or 1 per cent of the sum of the total worldwide turnover (whichever is greater) of each member active on the market affected by the infringement of the association.

(5) The financial liability of each undertaking in respect of the payment of the administrative financial sanction shall not exceed the maximum amounts specified insubsection (2)orsubsection (3), as the case may be, and shall be reduced by an adjudication officer in accordance with any decision made in respect of that undertaking underPart 2E.]

15AD. F68[Periodic penalty payments

15AD.—(1) (a) An adjudication officer may impose a payment (in this Act referred to as a "periodic penalty payment") on an undertaking or association of undertakings in order to compel such an undertaking or association of undertakings to do one or more of the following:

(i) comply with a search conducted by an authorised officer, or otherwise allow for the exercise of the powers of an authorised officer, under section 39 of the Act of 2002 or section 37 of the Act of 2014, as the case may be;

(ii) provide complete and correct information in response to a requirement under section 39A of the Act of 2002 or section 18(1)(d) or 37A of the Act of 2014 or, as the case may be;

(iii) attend at an interview, or otherwise give evidence or produce information or documentation, before the competent authority under section 38A of the Act of 2002 or section 18 or 37A of the Act of 2014, as the case may be;

(iv) comply with a prohibition notice;

(v) comply with commitments entered into with the competent authority undersection 15AE;

(vi) comply with structural or behavioural remedies.

(b) (i) An adjudication officer may impose a periodic penalty payment on an undertaking or association of undertakings in order to compel such an undertaking or association of undertakings to comply with any hearing requirement imposed by an adjudication officer in the course of a referral undersection 15M, without a referral under that section separate to the proceedings in which the breach of the hearing requirement has arisen.

(ii) Where an adjudication officer imposes a hearing requirement periodic penalty payment undersubparagraph (i), subject to this section such a decision shall be made undersection 15Xand this Act shall apply accordingly.

(iii) Where an adjudication officer considers it necessary in the interests of justice, an adjudication officer who apprehends that there has been a failure to comply with a hearing requirement made by that adjudication officer in the course of a referral undersection 15Mmay refer to the Chief Adjudication Officer for assignment to another adjudication officer the decision undersubparagraph (i).

(2) (a) Before an adjudication officer makes a decision to impose a periodic penalty payment in accordance withsubsection (1)(a), the competent authority shall issue to the undertaking or association of undertakings concerned a notice which shall—

(i) specify the date by, or period within, which the undertaking or association of undertakings shall comply with the obligation concerned,

(ii) state the intention of the competent authority to refer the matter, undersection 15M, to an adjudication officer for a decision to impose a periodic penalty payment from a specified date if by that date the undertaking or association of undertakings concerned has not complied with the obligation concerned, and

(iii) specify the maximum daily amount of the periodic penalty payment that may be imposed from the specified date if the undertaking or association of undertakings concerned has not complied with the obligation concerned.

(b) Before an adjudication officer makes a decision to impose a hearing requirement periodic penalty payment in accordance withsubsection (1)(b), the adjudication officer shall issue to the undertaking or association of undertakings concerned a notice which shall—

(i) state the intention of the adjudication officer to impose a periodic penalty payment from a specified date if by that date the undertaking or association of undertakings concerned has not complied with the obligation concerned, and

(ii) specify the information referred to insubparagraphs (i)and(iii)ofparagraph (a).

(c) If, before the date, or before the expiration of the period, as the case may be, specified in a notice issued underparagraph (a)or(b), as the case may be, the undertaking or association of undertakings requests, in writing, an extension to the specified date or period, the competent authority or adjudication officer, as the case may be, may where it considers it appropriate to do so, extend that date or period and an undertaking or association of undertakings to which such an extension is granted shall comply with the obligation by the date, or within the specified period, as so extended.

(3) The maximum amount of a periodic penalty payment imposed per day during which the failure is ongoing in accordance withsubsection (1)shall not exceed 5 per cent of the average daily total worldwide turnover of the undertaking or association of undertakings concerned in the preceding financial year.

(4) Where the undertaking or association of undertakings has failed to comply with the obligation concerned before the date, or before the expiration of the period, specified in a notice issued undersubsection (2)—

(a) in respect of the matters set out insubsection (1)(a), the competent authority—

(i) shall prepare a statement of objections and give a copy of it to the undertaking or association of undertakings concerned in accordance withsection 15L, and

(ii) may refer the matter to an adjudication officer for decision in accordance withsection 15M,

or

(b) in respect of the matters set out insubsection (1)(b), an adjudication officer may make a decision undersection 15Xon his or her own motion.

(5) (a) Where an adjudication officer has decided to impose a periodic penalty payment undersection 15Xon or before the date, or within the period, specified in a notice issued underparagraph (a)or(b)of subsection (2), an adjudication officer shall determine the periodic penalty payment to be imposed on the undertaking or association of undertakings concerned and shall impose such periodic penalty payment on such undertaking or association of undertakings undersection 15X(2)(b)(iii).

(b) The definitive amount of the periodic penalty payment shall be calculated from the date on which the period specified in the notice issued underparagraph (a)or(b)ofsubsection (2)expired until the date on which the adjudication officer is satisfied that the relevant obligation was complied with by the undertaking.

(c) An adjudication officer may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the notice issued undersubsection (2).

(6) The imposition of a periodic penalty payment under this section is without prejudice to—

(a) the imposition of administrative financial sanctions for—

(i) a breach of a procedural requirement,

(ii) a failure to comply with commitments entered into undersection 15AE,

(iii) a failure to comply with a structural or behavioural remedy, or

(iv) a failure to comply with a prohibition notice,

(b) the imposition of a structural or behavioural remedy undersection 15Xin accordance withsection 15Z, or

(c) issuing a prohibition notice issued undersection 15H.

(7) A decision to impose an Article 16(2) periodic penalty payment or a hearing requirement periodic penalty payment shall not take effect unless the decision is confirmed by the High Court undersection 15AYorsection 15AZ.

(8) In this section—

"Article 16(1) periodic penalty payment" means a periodic penalty payment imposed, in whole or in part, for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to insubsection (1)(a)(ii)and(iii);

"Article 16(2) periodic penalty payment" means a periodic penalty payment imposed for the purposes of compelling an undertaking or association of undertakings to comply with the matters referred to insubsection (1)(a)(i)and(iv)to(vi);

"hearing requirement periodic penalty payment" means a periodic penalty payment imposed undersubsection (1)(b)(i).]

15AE. F69[Commitments

15AE.—(1) At any time during an investigation carried out by the competent authority into suspected or alleged infringements of relevant competition law, including at any time prior to a decision being made in criminal or civil proceedings (including proceedings underParts 2Cto2H) under this Act, the undertaking or association of undertakings to which the investigation relates may, in writing, propose to the competent authority measures appropriately addressing the suspected or alleged infringement.

(2) Where the competent authority receives a proposal undersubsection (1), it may—

(a) consult to the extent that it sees fit in relation to the proposal, including consulting publicly or consulting undertakings, or other persons participating in the market or markets concerned,

(b) where it is of the opinion that it requires further information in order to consider the proposal, by notice in writing served on the undertaking or association of undertakings that made the proposal, require the undertaking or association of undertakings to give to it within a specified period specified information, and

(c) where it considers it necessary to do so, at any time before the proposal is made subject to a commitment agreement under this section, propose to the undertaking or association of undertakings modifications, alterations, additions or other changes to the proposal.

(3) Where the competent authority—

(a) has complied with the requirements ofsubsection (4), and

(b) is satisfied that the terms of the proposal (subject to any modifications, alterations, additions or other changes made to the proposal undersubsection (2))—

(i) appropriately address the matters to which the investigation relates or any findings resulting from the investigation, and

(ii) are clear and unambiguous and capable of being complied with,

it may notify the undertaking or association of undertakings in writing that the proposal is agreed by the competent authority.

(4) Before notifying an undertaking or association of undertakings undersubsection (3), the competent authority shall inform the undertaking or association of undertakings—

(a) that the undertaking or association of undertakings is entitled to obtain legal advice on the terms of the proposal, and

(b) that failure to comply with the commitments may result in legal consequences for the undertaking or association of undertakings, including the imposition of administrative financial sanctions undersection 15AA.

(5) Where the undertaking or association of undertakings in receipt of a notification undersubsection (3)consents to the terms of the proposal as agreed by the competent authority, it shall notify the competent authority of that fact.

(6) Where a proposal has been consented to by an undertaking or association of undertakings undersubsection (5)and an agreement (in this section referred to as a "commitment agreement") in respect of such proposal has been entered into by that undertaking or association of undertakings and the competent authority, the commitment agreement shall (save where such publication would, in the opinion of the competent authority, prejudice the achievement of the objectives of this Act) be published on a website maintained by or on behalf of the relevant Minister or by the competent authority, with due regard for the protection of commercially sensitive information, as soon as practicable after the commitment agreement has been signed by the undertaking or association of undertakings and the competent authority.

(7) A commitment agreement shall be binding on an undertaking or association of undertakings entering into it for the period beginning on the date specified in the commitment agreement and ending on the date specified in the commitment agreement.

(8) Subject tosubsection (9), the competent authority shall not, during the period for which a commitment agreement is binding on an undertaking or association of undertakings and in respect of the matters addressed in the commitment agreement—

(a) issue a prohibition notice to the undertaking or association of undertakings,

(b) refer the matter for decision by an adjudication officer undersection 15M, or

(c) continue any proceedings under this Act (whether criminal or civil proceedings, including proceedings underParts 2Cto2H) that are already in progress against the undertaking or association of undertakings,

other than where the competent authority has formed a preliminary view, or an adjudication officer has decided, that the undertaking or association of undertakings has failed to comply with the commitment agreement.

(9) The competent authority may, notwithstandingsubsection (7)—

(a) amend or terminate a commitment agreement where the undertaking or association of undertakings that has entered into the commitment agreement has consented to such amendment or termination and the competent authority is satisfied that there has been a material change to the facts on which the commitment agreement was based,

(b) terminate a commitment agreement where the circumstances of the undertaking or association of undertakings, or of the market in which the undertaking or association of undertakings operates, mean that the commitment agreement is no longer necessary,

(c) terminate a commitment agreement where the undertaking or association of undertakings concerned has acted contrary to the terms of the commitment agreement, or

(d) terminate a commitment agreement where an undertaking or association of undertakings which has entered into a commitment agreement has submitted information to the competent authority in connection with a proposal or commitment agreement under this section that is false, incomplete, incorrect or misleading in a material respect.

(10) The competent authority may monitor and review commitments, conditions or other terms contained in a commitment agreement.]

15AF. F70[Guidelines

15AF.—(1) The competent authority may, subject to this Act and any regulations made thereunder, and having regard to the fairness and efficiency of the procedures under this Part,Part 2C, Part 2EandPart 2G, prepare and make guidelines with respect to any matter provided for in or under this Part orPart 2C, 2Eor2G, including in relation to—

(a) the conduct of oral hearings,

(b) the imposition of administrative sanctions (including the factors applicable to any order or administrative financial sanction to be imposed undersection 15Xand the method of calculation of administrative financial sanctions and periodic penalty payments),

(c) the conduct of investigations,

(d) the general policies of the competent authority, and

(e) any matter prescribed by the relevant Minister under this Part,Part 2C, Part 2EorPart 2G.

(2) In making a decision undersection 15X, an adjudication officer shall—

(a) have regard to guidelines, if any, made and published by the competent authority undersubsection (1), and

(b) apply guidelines made and published by the competent authority underparagraph (a)and(b)ofsubsection (1)unless the adjudication officer considers that, having regard to all the circumstances of the case, there is a reason not to do so.

(3) The competent authority may amend or revoke guidelines made undersubsection (1).

(4) The competent authority shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on a website maintained by it or on its behalf.

(5) The competent authorities may make guidelines under this section jointly or separately.]

15AG. F71[Conduct of investigations

15AG.—Subject to this Part andPart 2C, any rules made undersection 15V(14)and any guidelines made undersection 15AF, competent authorities and authorised officers may follow such procedures for the conduct of an investigation as they consider appropriate.]

PART 2E Leniency programme

15AH. Definitions (Part 2E)

15AH.—In this Part—

"applicant" means an undertaking that submits a leniency statement under this Part;

"competent prosecuting authority" means—

(a) in respect of civil proceedings under this Act, including proceedings underParts 2Cto2H, the competent authority,

(b) in respect of criminal proceedings in respect of an infringement of relevant competition law tried on indictment in accordance withsection 8, the Director of Public Prosecutions, or

(c) in respect of criminal proceedings in respect of an infringement of relevant competition law tried summarily in accordance withsection 8, the competent authority or the Director of Public Prosecutions, as the case may be;

"immunity from administrative financial sanctions" means an exemption granted by a competent authority, in accordance with a leniency programme, from an administrative financial sanction that would otherwise be imposed on an undertaking for its participation in a cartel;

"leniency" includes immunity from administrative financial sanctions and a reduction in administrative financial sanctions;

"marker" has the meaning it has insection 15AM.]

15AI. F73[Immunity from administrative financial sanctions

15AI.—(1) Each competent authority shall put in place a programme (in this Part referred to as a "leniency programme") enabling it to grant leniency to undertakings in exchange for—

(a) disclosing their participation in a cartel, and

(b) voluntarily cooperating, independently of the other undertakings involved in the cartel, with an investigation of the competent authority concerning the application of relevant competition law.

(2) Each competent authority shall prepare a policy as to how it will operate its leniency programme, which policy may include different policies or approaches in respect of different sectors or economic activities.

(3) The leniency programme may also address the approach of the competent authority when exercising its power to grant leniency in respect of other infringements of relevant competition law.

(4) Each competent authority shall publish its leniency programme by placing a notice in relation to it, together with the entire text of the programme, on a website maintained by or on behalf of the competent authority.

(5) A competent authority may grant an undertaking immunity from any administrative financial sanction which would otherwise have been imposed provided that—

(a) the undertaking discloses to the competent authority the fact of its participation in the cartel concerned, together with all the details thereof, in accordance withsection 15AK(1)(b),

(b) the undertaking is the first undertaking in an alleged cartel to submit evidence to the competent authority which—

(i) in the view of the competent authority at the time it evaluates the application for immunity from administrative financial sanctions, will enable the competent authority to carry out searches in connection with an alleged cartel, provided that the competent authority did not at the time of the application, already have sufficient evidence to carry out such a search or sufficient evidence to seek a warrant for such a search or had not already carried out a search in connection with the alleged cartel, or

(ii) in the view of the competent authority, is sufficient to ground a finding of an infringement of relevant competition law covered by the leniency programme, provided that the competent authority did not have in its possession sufficient evidence to find such an infringement and that no other undertaking previously qualified for immunity from administrative financial sanctions in relation to the same cartel,

(c) the conditions for leniency set out insection 15AKare satisfied,

(d) the undertaking has not taken steps to coerce other undertakings to join a cartel or to remain in it,

(e) the undertaking provides the competent authority with any information reasonably required by the competent authority, and

(f) the other competent authority has not already granted the undertaking immunity in respect of the same matter or conduct.

(6) (a) A competent authority may decide to grant an undertaking immunity from administrative financial sanctions conditional on it fulfilling the conditions in this Part.

(b) The competent authority shall notify the undertaking of a decision made underparagraph (a).

(c) Where the competent authority notifies an undertaking that it has been granted conditional immunity from administrative financial sanctions underparagraph (a), the undertaking shall be informed of the period it has to fulfil the conditions concerned.

(7) The competent authority shall, where it is requested to do so by the applicant, notify a decision undersubsection (5)to the applicant in writing.

(8) An applicant, after it is notified that a decision was made undersubsection (6)(a)not to grant it immunity from administrative financial sanctions, may request the competent authority concerned to consider its application as an application for reduction of administrative financial sanctions undersection 15AJ.

(9) (a) The Commission and the Commission for Communications Regulation may, to the extent required for the purposes of this Part—

(i) cooperate, including by sharing information and evidence between them, in relation to a leniency statement submitted to either one of them,

(ii) co-ordinate their leniency programmes, in whole or in part,

(iii) take steps to agree procedures, or align their respective policies, as to how such programmes shall operate,

(iv) agree that either the Commission or the Commission for Communications Regulation, but not both, shall—

(I) assess a particular leniency statement, or a class of leniency statements, and

(II) decide whether to grant leniency to a particular applicant or to any other members of the alleged cartel of which the applicant is allegedly part,

(v) transfer a leniency statement, and all supporting documents or material relating to the statement, received by one competent authority under this Part to the other competent authority in order to allow the second-mentioned competent authority to assess the leniency statement, and

(vi) conclude cooperation agreements that will—

(I) facilitate the performance of their respective functions under this Part and in particular the assessment of leniency applications, and

(II) if necessary, provide for procedures for the transfer of leniency statements received by one competent authority under this Part to the other competent authority.

(b) An agreement made underparagraph (a)(iv)shall be published, on a website maintained by them or on their behalf, by the Commission or the Commission for Communications Regulation or both.]

15AJ. F74[Reduction of administrative financial sanctions

15AJ.—(1) Undertakings that do not qualify for immunity from administrative financial sanctions undersection 15AImay be granted a reduction, in accordance with this section, of any administrative financial sanction that would otherwise have been imposed conditional on the undertaking fulfilling the conditions in this Part.

(2) A competent authority shall include in the leniency programme provision for reducing the amount of an administrative financial sanction that would otherwise be imposed on an undertaking that does not qualify for immunity from administrative financial sanctions for its participation in a cartel, in exchange for, or in order to acknowledge, its cooperation with a competent authority under the leniency programme.

(3) Where a competent authority determines that an undertaking is entitled to a reduction of an administrative financial sanction, the adjudication officer and the High Court shall apply the reduction determined by the competent authority to the administrative financial sanction imposed by a decision undersection 15Xand confirmed by the Court, and the decision of the competent authority as to whether the conditions for the reduction of an administrative financial sanction undersubsection (5)are satisfied may not be impugned by the adjudication officer or Court.

(4) The competent authority shall publish, on a website maintained by it or on its behalf, its leniency programme allowing for a reduction of administrative financial sanctions.

(5) In order to qualify for a reduction of administrative financial sanctions, an undertaking shall—

(a) disclose its participation in the cartel,

(b) provide the competent authority with evidence of the alleged cartel which, in the view of the competent authority, represents significant added value relative to the evidence already in the possession of the competent authority at the time of the application, and

(c) otherwise satisfy the requirements set out insection 15AK.

(6) If an undertaking that has applied for a reduction of an administrative financial sanction submits compelling evidence which the competent authority uses to establish additional facts which lead to an increase of the amount of the administrative financial sanction imposed on other undertakings or associations of undertakings, such additional facts shall not be taken into account by an adjudication officer when setting the amount of any administrative financial sanction to be imposed on the undertaking that provided this evidence.

(7) In order to determine the appropriate level of reduction of the administrative financial sanction, the competent authority shall take into account—

(a) the time at which the evidence was submitted (including the placing of the applicant in the chronological order of undertakings to apply for leniency), and

(b) the assessment of the competent authority as to the overall value added to its investigation by that evidence.

(8) Reductions granted to an applicant under this section shall not exceed 50 per cent of the administrative financial sanction which would otherwise have been imposed.

(9) If the competent authority finds that one or more of the conditions specified insubsection (5)has not been fulfilled, the undertaking shall not benefit from any favourable treatment under this programme in respect of the same cartel.

(10) (a) In this Part, the "significant added value" of evidence shall be assessed by the competent authority in terms of the extent to which the evidence provided to the competent authority strengthens, by its nature or in its level of detail, the ability of the competent authority to prove the existence of the alleged cartel.

(b) The competent authority may publish, on a website maintained by it or on its behalf, guidelines on the assessment of the "significant added value" of evidence and on the concept of "compelling evidence" undersubsection (6).]

15AK. F75[General conditions for leniency

15AK.—(1) In order to qualify for leniency for participation in a cartel an undertaking that has applied to the competent authority for leniency shall—

(a) end its involvement in the alleged cartel at the latest immediately following the submission of its leniency statement, except in cases where a delay would, in the view of the competent authority, be reasonably necessary to preserve the integrity of its investigation,

(b) cooperate genuinely, fully, and on a continuous basis and expeditiously with the competent authority from the time of its application until the competent authority has closed its enforcement proceedings against all parties under investigation by reason of a decision undersection 15Xor has otherwise terminated its enforcement proceedings (including continuing to so cooperate where required until the determination of any subsequent proceedings underPart 2H), and such cooperation includes the following:

(i) providing the competent authority promptly with all relevant information and evidence relating to the alleged cartel that comes into the applicant’s possession or is accessible to it, in particular—

(I) the name and address of the applicant,

(II) the names of all other undertakings that participate or participated in the alleged cartel,

(III) a detailed description of the alleged cartel, including the affected goods or services, the affected territories, the duration, and the nature of the alleged cartel conduct,

(IV) evidence of the alleged cartel in its possession or under its control (in particular any contemporaneous evidence), and

(V) information on any past or possible future leniency statements made to any other competent authorities, competition authorities of member states, the European Commission, or competition authorities of third countries in relation to the alleged cartel;

(ii) remaining at the disposal of the competent authority to promptly reply to any requests that may contribute to the establishment of the relevant facts;