Communications Regulation Act 2002

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Communications Regulation Act, 2002.

2. Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“Act of 1972” means European Communities Act, 1972;

“Act of 1996” means Telecommunications (Miscellaneous Provisions) Act, 1996;

F1[“Agency”means the National Consumer Agency established by theConsumer Protection Act 2007;]

F2[“associate”, in relation to an undertaking, means—

(a) a holding company of the undertaking, or

(b) a subsidiary company of the undertaking, or

(c) a company that is a subsidiary of a body corporate, if the undertaking is also a subsidiary of the body, but neither company is a subsidiary of the other, or

(d) a body corporate that is not a subsidiary of the undertaking but in respect of which the undertaking is beneficially entitled to more than 20 per cent of the nominal value of either—

(i) the allotted share capital of the body, or

(ii) the shares carrying voting rights (other than voting rights which arise only in specified circumstances) of the body,

or

(e) a partnership or joint venture in which the undertaking has a financial interest;]

F3["associated facilities" means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets;]

F4["associated service" means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service;]

F2[“association of undertakings”a body corporate that comprises one or more undertakings but is not itself an undertaking;]

“Civil Service” has the meaning assigned to it by the Civil Service Regulation Act, 1956;

“Commission” means the Commission for Communications Regulation established by Part 2;

“Commissioner” means a member of the Commission;

“Community” means European Communities;

F5[“conditional access systems”means any technical measure, authentication system or arrangement or both whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation;]

“Director” means the Director of Telecommunications Regulation appointed under the Act of 1996 and, where the context so admits, includes the Office of the Director of Telecommunications Regulation;

F6["Electronic Communications Code Regulations" means European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444 of 2022);]

“electronic communications market” means electronic communications networks, electronic communications services and associated facilities;

F3["electronic communications network" means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit-and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;]

F3["electronic communications service" means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:

(a) "internet access service" as defined in point (2) of the second paragraph of Article 2 of Regulation (EU) 2015/2120 of 25 November 2015^7,

(b) interpersonal communications service, and

(c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine to machine services and for broadcasting]

F3["end-user" means a user not providing public electronic communications network or publicly available electronic communications services;]

F4["end-user of premium rate services" means a person to whom such a service is supplied, or who has asked for the supply of such a service otherwise than for the purpose of resupply;]

“essential requirements” has the meaning assigned to it by Article 2 of Directive 97/13/EC of 10 April 1997^3;

“establishment day” means the day appointed under section 4 to be the establishment day for the purposes of this Act;

F2[“failure to comply”includes contravene;

“financial year”, in relation to the Commission, means the financial year of the Commission as specified in or in accordance withsection 31A;]

F4["interpersonal communications service" means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;]

F7[“Minister”means Minister for Communications, Energy and Natural Resources;]

“Office” means Office of the Director of Telecommunications Regulation;

F8[“postal services”has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;]

F9[“postal service provider”has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;

“postal service user”has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;

“postal service within the scope of the universal postal service”has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;]

F10[“premium rate service”has the meaning assigned to it by the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;

“premium rate service licence”means a licence granted undersection 6of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 to provide premium rate services;

“premium rate service provider”has the meaning assigned to it by the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010;]

“prescribed” means prescribed by regulations made by the Minister;

F2[“related enactment”means—

(a) an enactment specified inPart 1ofSchedule 1, or

(b) a statutory instrument specified inPart 2of that Schedule, or

(c) a statutory instrument made by the Minister for the purpose of giving effect to an act of an institution of the European Communities relating to—

(i) the provision of an electronic communications service, an electronic communications network or associated facility, or

(ii) the radio frequency spectrum or national numbering resource, or

(iii) a postal service,

or

(d) a statutory instrument made by the Commission under an Act specified inPart 1ofSchedule 1, or

(e) any Act or statutory instrument declared by a provision of another Act or statutory instrument to be a related enactment for the purposes of this Act;]

“superannuation benefits” means pensions, gratuities and other allowances payable on resignation, retirement or death;

F11[“television set”has the meaning assigned to it by section140of the Broadcasting Act 2009;]

F2[“this Act”includes all statutory instruments made under this Act;]

“transferred function” means a function transferred to the Commission under section 9;

“undertaking” means a provider of electronic communications networks or services or associated facilities;

F12[“universal postal service”has the meaning assigned to it by the Communications Regulation (Postal Services) Act 2011;]

“user” means a natural or legal person using or requesting a publicly available electronic communications service.

(2)—F13[…]

3. Laying of orders and regulations before Houses of Oireachtas.

3.—(1) Other than an order under section 4, every order or regulation made under this Act by the Minister or the Minister for the Environment and Local Government shall be laid before each of the Houses of the Oireachtas as soon as practicable after it is made.

(2) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which an order or a regulation was laid before it in accordance with subsection (1), annul the order or regulation.

(3) The annulment of an order or regulation under this section takes effect immediately on the passing of the resolution concerned, but does not affect anything that was F14[done under the order or regulation] before the passing of the resolution.

4. Establishment day.

4.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Act.

5. Expenses.

5.—The expenses incurred by the Minister and the Minister for the Environment and Local Government in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Commission for Communications Regulation

6. Establishment of Commission.

6.—(1) On the establishment day there is established a body to be known as the Commission for Communications Regulation or, in the Irish language, An Coimisiún um Rialáil Cumarsáide, which shall perform the functions conferred on it by or under this Act.

(2) The Commission shall be a body corporate with perpetual succession and a seal and power—

(a) to sue and be used in its corporate name,

(b) to acquire, hold and dispose of land or an interest in land, and

(c) to acquire, hold and dispose of any other property.

7. Seal of Commission.

7.—(1) The Commission shall, as soon as may be after its establishment, provide itself with a seal.

(2) The seal shall be authenticated by the signature of—

(a) a Commissioner, or

(b) a member of the staff of the Commission, authorised by the Commission to act in that behalf.

(3) Judicial notice shall be taken of the seal of the Commission and every document—

(a) purporting to be an instrument made by and to be sealed with the seal of the Commission, and

(b) purporting to be authenticated in accordance with subsection (2),

shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.

8. Dissolution of Office of Director of Telecommunications Regulation.

8.—On the establishment day the Office of the Director of Telecommunications Regulation is dissolved.

9. Transfer of functions.

9.— F15[…]

10. Functions of Commission.

10.—(1) The functions of the Commission F16[are]—

(a) to ensure compliance by undertakings with obligations in relation to the supply of and access to electronic communications services, electronic communications networks and associated facilities and the transmission of such services on such networks,

F17[(aa) to ensure compliance by undertakings with obligations under Regulation (EU) No. 612/2022 of the European Parliament and of the Council of 6 April 2022,]

F18[(ab)F19[…]]

F20[(ac)F19[…]]

F21[(ad) to closely monitor and ensure compliance by undertakings, including providers of internet access services within the meaning of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015^2, with their obligations under Articles 3, 4 and 5 of those Regulations,]

F22[(ae) to perform the tasks assigned to it under the Electronic Communications Code Regulations,]

F23[(ae) the functions of a national regulatory authority under Article 5a (inserted by Article 50 of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018^3) of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015^4,]

F24[(af) to ensure compliance with, and to carry out the functions assigned to it by, the European Union (Electronic Communications Code) Regulations 2022 (S.I. No. 444 of 2022),]

F25[(af)to monitor and ensure compliance by undertakings and premium rate service providers with Part 3 of the Consumer Protection Act 2007,

(ag)to monitor and ensure compliance by undertakings and premium rate service providers with Parts 4 to 6 of the Consumer Rights Act 2022,]

(b) to manage the radio frequency spectrum and the national numbering resource, in accordance with a direction under section 13,

F26[(ba) to ensure the provision of a universal postal service that meets the reasonable needs of postal service users,]

F27[(bb) to undertake a review of any consequences, including for terminal dues, of the repeal, undersection 1of the Communications Regulation (Postal Services) (Amendment) Act 2017, ofsection 30of theCommunications Regulation (Postal Services) Act 2011which review shall commence immediately following the expiration of 2 years after the coming into operation of the Communications Regulation (Postal Services) (Amendment) Act 2017 and to prepare and furnish a report to the Minister of the findings of the Commission resulting from the review not later than 6 months after the commencement of the review,]

F28[(c) to monitor and ensure compliance by postal service providers with the obligations imposed on them by or under theCommunications Regulation Acts 2002 to 2011in relation to the provision of postal services,]

F29[(ca) to monitor the quality and efficiency of the emergency call answering service established underPart 6,]

F30[(cb) to ensure compliance by premium rate service providers with their obligations in relation to the provision, content and promotion of premium rate services,]

F31[(d) to carry out investigations into matters relating to—

(i) the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmissions of such services on such networks, and

(ii) the provision, content and promotion of premium rate services,]

F32[(da) for the purpose of contributing to an open and competitive market and also for statistical purposes, to collect, compile, extract, disseminate and publish information from undertakings relating to the provision of electronic communications services, electronic communications networks and associated facilities and the transmission of such servicesF33[on those networks]]

(e) to ensure compliance, as appropriate, by persons in relation to the placing on the market of communications equipment and the placing on the market and putting into service F33[of radio equipment, and]

F24[(f) to advise the Minister, when requested by him or her, on matters relating to the electronic communications market and matters relating to the functions of the Commission.]

F34[F35[(1A) The functions of the Competition and Consumer Protection Commission specified insubsection (1B)are (in so far as they relate to the provision of electronic communications networks, electronic communications services, associated facilities and premium rate services) also functions of the Commission for Communications Regulation, andsubsections (1B)to(1E)have effect for the purposes of this subsection.]

F35[(1B) The functions of the Competition and Consumer Protection Commission referred to insubsection (1A)are the functions of that Commission under—

(a)sections 71 to 73, 75, 77, 80 to 82, 85 to 88 and 90 of the Consumer Protection Act 2007 in relation to Part 3 of that Act,

(b)sections 71 to 73, 75, 77, 80, 85 to 88 and 90 of the Consumer Protection Act 2007 in relation to Parts 4 and 5 of the Consumer Rights Act 2022, and

(c)sections 73, 75, 77, 80, 85 to 87 and 90 of the Consumer Protection Act 2007 in relation to Part 6 of the Consumer Rights Act 2022.]

(1C)Subsection (1A)operates to vest in the Commission, concurrently with the vesting in the Agency of those functions by theConsumer Protection Act 2007, the functions specified insubsection (1B).

(1D) Accordingly—

(a) functions so specified are, subject to any relevant co-operation agreement entered into undersection 21of theConsumer Protection Act 2007, capable of being performed by either the Agency or the Commission, and

(b) subject tosubsection (1E), references to the Agency in the provisions of theF35[Consumer Protection Act 2007]specified insubsection (1B)are to be read as including references to the Commission and those provisions otherwise apply.

(1E) Where any section of theConsumer Protection Act 2007specified insubsection (1B)provides for anything to be done in relation to the Agency (whether the giving of notice to it, the submitting of a thing to it or the doing of any other thing) then, if a co-operation agreement entered into under section 21 of that Act so specifies, it is sufficient compliance with the section concerned if the thing is done in relation to the Agency or the Commission as is specified in that agreement.]

F33[(2) The Commission may carry out an investigation referred to insubsection (1)either on its own initiative or on foot of a complaint.]

(3) The Commission shall have all such powers as are necessary for or incidental to the performance of its functions F36[under this or any other Act].

(4) The Commission shall be the national regulatory authority for the purposes of Regulation No. 2887/2000 of 18 December 2000^5 of the European Parliament and of the Council on unbundled access to the local loop.

F27[(5) (a) In carrying out the review undersubsection (1)(bb)the Commission may consult with such persons as it considers appropriate. The Commission shall complete this consultation within a period of 42 days.

(b) The Minister shall cause a copy of the report prepared undersubsection (1)(bb)to be laid before each House of the Oireachtas as soon as practicable after it is furnished to him or her by the Commission.

(6) Insubsection (1)(bb)"terminal dues" has the same meaning as it has in Part 2 of theCommunications Regulation (Postal Services) Act 2011.]

11. Independence of Commission.

11.— Subject to this Act, the Commission shall be independent in the exercise of its functions.

11A. F37[Objectivity and transparency of Commission in regulating under Electronic Communications Code Regulations.

11A.—For the purposes of performing its tasks under the Electronic Communications Code Regulations the Commission shall act objectively in a transparent manner and be accountable in accordance with the law of the European Union and shall not seek or take instructions from any other body in relation to tasks assigned to it under law implementing the law of the European Union.]

12. Objectives of Commission.

12.—(1) The objectives of the Commission in exercising its functions shall be as follows—

(a) in relation to the provision of electronic communications networks, electronic communications services and associated facilities—

(i) to promote competition,

(ii) to contribute to the development of the internal market, and

(iii) to promote the interests of users within the Community,

(b) to ensure the efficient management and use of the radio frequency spectrum and numbers from the national numbering scheme in the State in accordance with a direction under section 13, F38[…]

F39[(c) in relation to the provision of postal services—

(i) to promote the development of the postal sector and, in particular, the availability of a universal postal service within, to and from the State at an affordable price for the benefit of all postal service users,

(ii) to promote the interests of postal service users within the Community, and

(iii) subject tosubparagraph (i), to facilitate the development of competition and innovation in the market for postal service provision,

and]

F40[(d) to protect the interests of end users of premium rate services.]

(2) In relation to the objectives referred to in subsection (1)(a), the Commission shall take all reasonable measures which are aimed at achieving those objectives, including—

(a) in so far as the promotion of competition is concerned—

(i) ensuring that users, including disabled users, derive maximum benefit in terms of choice, price and quality,

(ii) ensuring that there is no distortion or restriction of competition in the electronic communications sector,

(iii) F41[…]

(iv) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources,

(b) in so far as contributing to the development of the internal market is concerned—

(i) removing remaining obstacles to the provision of electronic communications networks, electronic communications services and associated facilities at Community level,

(ii) encouraging the establishment and development of trans-European networks and the interoperability of transnational services and end-to-end connectivity,

(iii) F41[…]

(iv) co-operating with electronic communications national regulatory authorities in other Member States of the Community and with the Commission of the Community in a transparent manner to ensure the development of consistent regulatory practice and the consistent application of Community law in this field,

and

(c) in so far as promotion of the interests of users within the Community is concerned—

(i) ensuring that all users have access to a universal service,

(ii) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved,

(iii) contributing to ensuring a high level of protection of personal data and privacy,

(iv) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services,

(v) encouraging access to the internet at reasonable cost to users,

(vi) addressing the needs of specific social groups, in particular disabled users, and

(vii) ensuring that the integrity and security of public communications networks are maintained.

F42[(2A) In relation to the objectives referred to insubsection (1)(c), the Commission shall take all reasonable measures aimed at achieving those objectives, including—

(a) establishing such monitoring and regulatory procedures for the purposes of ensuring compliance by postal service providers with the obligations imposed on them by or under theCommunications Regulation Acts 2002 to 2011as are necessary to secure the provision of a universal postal service,

(b) ensuring that postal service users may avail of a universal postal service that meets their reasonable needs,

(c) in so far as the facilitation of competition and innovation is concerned, ensuring that postal service users derive maximum benefit in terms of choice, price and quality, and

(d) in so far as the promotion of the interests of postal service users within the Community is concerned—

(i) ensuring a high level of protection for postal service users in their dealings with postal service providers, in particular by—

(I) ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved, and

(II) consulting and cooperating with the National Consumer Agency as appropriate,

and

(ii) addressing the needs of specific social groups, in particular, disabled postal service users.]

(3) In carrying out its functions, the Commission shall seek to ensure that measures taken by it are proportionate having regard to the objectives set out in this section.

(4) In carrying out its functions, the Commission shall, without prejudice to F39[subsections(1), (2), (2A)and(3)], have regard to policy statements, published by or on behalf of the Government or a Minister of the Government and notified to the Commission, in relation to the economic and social development of the State.

(5) In carrying out its functions, the Commission shall have regard to international developments with regard to electronic communications networks and electronic communications services, associated facilities, postal services, the radio frequency spectrum and numbering.

(6) The Commission shall take the utmost account of the desirability that the exercise of its functions aimed at achieving the objectives referred to in subsection (1)(a) does not result in discrimination in favour of or against particular types of technology for the transmission of electronic communications services.

(7) In this section, “national numbering scheme” means the scheme administered by the Commission which sets out the sequence of numbers or other characters used to route telephony traffic to specific locations.

12A. F43[Power of Minister to request advice from Commission

12A.—The Minister may request the Commission to advise him or her on matters relating to the electronic communications market and matters relating to the functions of the Commission.]

13. Directions by Minister.

13.—(1) In the interests of the proper and effective regulation of the F44[electronic communications, premium rate services] and postal markets, the management of the radio frequency spectrum in the State and the formulation of policy applicable to such proper and effective regulation and management, the Minister may give such policy directions to the Commission as he or she considers appropriate to be followed by the Commission in the exercise of its functions. The Commission shall comply with any such direction.

(2) Before giving a direction under subsection (1), the Minister shall give to the Commission and publish a draft of the proposed direction and—

(a) give the reasons for it, and

(b) specify the period (being not less than 21 days from giving it to the Commission or such publication, whichever is the later) within which representations relating to the proposal may be made by interested parties.

(3) The Minister, having considered any representations made under subsection (2), may give the direction under subsection (1) with or without amendment.

(4) Where the Minister proposes to make a direction under subsection (1) which, in the opinion of the Minister, has or may relate to the functions of another Minister of the Government, the Minister shall not give to the Commission or publish a draft of the proposal under subsection (2) without prior consultation with that other Minister of the Government.

(5) A direction under subsection (1) relating to management of the radio frequency spectrum may include directions relating to—

(a) the allocation of particular bands of spectrum for specific categories of service, and

(b) the means by which entitlements to use such spectrum may be assigned (including appropriate fees),

and in giving such direction the Minister shall have regard to principles of good frequency management.

(6) A direction under subsection (1) relating to fees referred to in subsection (5)(b) may only be given with the consent of the Minister for Finance.

(7) The Minister shall not give a direction under subsection (1) in respect of—

(a) a person—

(i) who has applied for, or holds a licence or authorisation, or

(ii) to whom a licence or authorisation may be, granted by the Commission, or

F45[(aa) a postal service provider who is deemed to be authorised in accordance withsection 38of the Communications Regulation (Postal Services) Act 2011, or]

(b) the performance of the functions of the Commission in relation to F46[individual undertakings, postal service providers or persons].

(8) Where the Minister gives a direction under subsection (1), a notice of such direction and details thereof, including reasons for giving the direction, shall be published in Iris Oifigiúil.

13A. F47[Purpose of sections 13B and 13C.

13A.—The purpose ofsections 13Band13Cis to enable the Minister to obtain information in order to formulate policies and plans to deal with emergencies and network security issues that may arise in connection with the provision of electronic communications services.]

13B. F48[Power of Minister to obtain information from Commission.

13B.—For the purpose specified insection 13A, the Minister may, by notice in writing, require the Commission to provide the Minister with written information concerning either or both of the following:

(a) the technical operation or performance of electronic communications networks and infrastructures in the State;

(b) the breakdown or malfunctioning of an electronic communications network.]

13C. F49[Power of Minister to obtain information from undertaking.

13C.—(1) For the purpose specified insection 13A, the Minister may, by notice in writing, require an undertaking to provide the Minister with written information concerning all or any of the following:

(a) the technical operation or performance of the undertaking’s electronic communications service in the context of the relevant electronic communications network;

(b) the breakdown or malfunctioning of any part of the undertaking’s electronic communications service;

(c) the operation of the undertaking in relation to electronic communications infrastructure.

(2) An undertaking commits an offence if it—

(a) fails to comply with a requirement made undersubsection (1)within the period specified in the notice or within such extended period as the Minister allows, or

(b) in purporting to comply with such a requirement, provides information to the Minister that the undertaking knows to be false or misleading.

(3) In proceedings for an offence involving a failure by an undertaking to comply with a requirement made undersubsection (1), it is a defence if the undertaking establishes—

(a) that it did not know and could not be reasonably expected to know or ascertain the required information, or

(b) that the disclosure of the information was prohibited by a law of the State.

(4) An undertaking that commits an offence undersubsection (2)is liable on summary conviction to a fine not exceeding€5,000.

(5) If, after being convicted of an offence undersubsection (2)or this subsection, an undertaking continues to fail to do the relevant act, the person commits a further offence on each day or part of a day during which the failure continues and is liable on summary conviction to a fine not exceeding€1,000 for each such further offence. However, if an undertaking is tried for 6 or more such further offences that are alleged to have been committed on successive days, the maximum fine that can be imposed for those offences at the trial is€5,000.]

13D. F50[Power of Commission to obtain information from undertaking.

F51[13D.—(1) The Commission may at any time, by notice in writing, require—

(a) an undertaking,

(b) a person providing a service in a sector closely related to that of the provision of electronic communications networks or services or associated facilities, or

(c) a premium rate service provider,

to provide it with such written information as it considers necessary to enable it to carry out its functions or to comply with a requirement made to it by the Minister undersection 13B.

(2) A requirement by the Commission undersubsection (1)may include a requirement that the undertaking or person concerned gather together, generate or obtain information for the purposes of providing it pursuant to that requirement.

(3) Any information provided to the Commission in accordance withsubsection (1)may be used by the Commission to enable it to carry out any of its functions.

(4) An undertaking or person referred to insubsection (1)that—

(a) fails to comply with a requirement made undersubsection (1)within the period specified in the notice or within such extended period as the Commission allows, or

(b) in purporting to comply with such a requirement, knowingly or grossly negligently provides misleading, erroneous or incomplete information to the Commission,

commits an offence and is liable on summary conviction to a class A fine.

(5) In proceedings for an offence involving a failure by an undertaking or a person referred to insubsection (1)to comply with a requirement made undersubsection (1), it is a defence if the undertaking or person establishes that—

(a) the undertaking or person did not know and could not reasonably be expected to know, ascertain or obtain the required information, or

(b) the disclosure of the information was prohibited by a law of the State.]]

13E. F52[Alternative procedure for enforcement of section 13C or 13D.

13E.—(1) As an alternative to bringing a prosecution for an offence againstsection 13Cor13D, the Minister or the Commission may apply to the High Court to make a compliance order undersubsection (4). Such an application is to be by motion.

(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, the undertaking becomes the respondent to the application.

(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made undersubsection (1). The Court may not refuse interim or interlocutory relief merely because the Minister or Commission may not suffer damage if relief were not granted pending determination of the application.

(4) On the hearing of an application made undersubsection (1), the High Court may make an order requiring the undertaking to comply with the relevant section or may refuse the application.

(5) If the High Court makes an order undersubsection (4), it may make such ancillary orders as it considers appropriate.]

13EA. F53[Power of Commission to share information with Minister

13EA.(1) The Commission may, where the Minister so requests, provide the Minister with any information that the Minister considers may assist the Minister in the formulation of policy relating to electronic communications networks and services and associated facilities.

(2) Where the Commission intends to provide information to the Minister under this section which was obtained by the Commission from a person who is or, at the time the information was obtained from the person, was—

(a) an undertaking,

(b) a person that provides, or provided, associated facilities, or

(c) such other person referred to insection 13D(1), the Commission shall notify the person in writing that the Commission intends to share the information with the Minister and afford the person an opportunity to make representations to it on the matter within a period of 7 days beginning on the date on which such notification is given or such further period as may be specified by the Commission.

(3) The Commission may, taking into account any representations made to it undersubsection (2), identify information provided to the Minister as being confidential information.

(4) Where the Minister receives information identified by the Commission as confidential information and the Minister is satisfied that such information is confidential information, he or she shall protect the confidentiality of such information.]

13F. F54[Power of Commission to obtain information from postal service provider.

13F.—(1) The Commission may at any time, by notice in writing, require a postal service provider to provide it with such written information as, subject tosubsection (3), it considers necessary to enable it to carry out its functions and, in particular, for any of the following purposes:

(a) establishing compliance by the postal service provider with the obligations imposed on it by or under theCommunications Regulation Acts 2002 to 2011;

(b) making a designation undersection 17or18of the Communications Regulation (Postal Services) Act 2011;

(c) conducting a review for any of the purposes of the saidsection 17or18;

(d) assessing the contribution (if any) to be made by a postal service provider to a sharing mechanism established undersection 36of the Communications Regulation (Postal Services) Act 2011;

(e) assessing the contribution to be made by a postal service provider to the administration costs of the Commission undersection 30(2);

(f) statistical purposes.

(2) A requirement made undersubsection (1)shall—

(a) specify the information required, and

(b) state the purposes for which that information is required, including, where relevant, the statistical purposes for which that information is required.

(3) The nature and extent of the information, the subject of a requirement made undersubsection (1), shall be proportionate to the use to which the information is to be put by the Commission in the performance of its functions.

(4) Information shall be provided by a postal service provider pursuant to a requirement made undersubsection (1)in such form and manner and within such reasonable period as may be specified by the Commission in the notice.

(5) A postal service provider commits an offence if it—

(a) fails to comply with a requirement made undersubsection (1)within the period specified in the notice or within such extended period as the Commission allows, or

(b) in purporting to comply with such a requirement, provides to the Commission information that the postal service provider knows to be false or misleading in a material respect.

(6) In proceedings for an offence undersubsection (5)involving a failure by a postal service provider to comply with a requirement made undersubsection (1), it is a defence if the postal service provider establishes—

(a) that it did not know and could not be reasonably expected to know or ascertain the required information, or

(b) that the disclosure of the information was prohibited by any enactment or rule of law.

(7) A postal service provider who commits an offence undersubsection (5)is liable on summary conviction to a class A fine.

(8) (a) The Commission shall give to the European Commission, upon request, appropriate and relevant information necessary for it to carry out its tasks under the Directive (within the meaning ofsection 6of the Communications Regulation (Postal Services) Act 2011).

(b) Nothing insection 24(1)shall prevent the disclosure of confidential information (within the meaning ofsection 24) by the Commission to the European Commission under this subsection.]

13G. F55[Alternative procedure for enforcement of section 13F.

13G.—(1) As an alternative to bringing a prosecution for an offence undersection 13F(5), the Commission may apply to the High Court to make a compliance order undersubsection (4). Such an application is to be by motion.

(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the postal service provider concerned. On being served with such a copy, the postal service provider becomes the respondent to the application.

(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made undersubsection (1). The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.

(4) On the hearing of an application made undersubsection (1), the High Court may make an order requiring the postal service provider to comply withsection 13For may refuse the application.

(5) If the High Court makes an order undersubsection (4), it may make such ancillary orders as it considers appropriate.]

14. Composition and procedure of Commission.

14.—(1) The Commission shall consist of at least one member and not more than 3 members.

(2) Each member of the Commission shall be known as a Commissioner for Communications Regulation and is in this Act referred to as a “Commissioner”.

(3) Subject to this Act, the Commission may regulate its own procedure.

15. Appointment and term of office of Commissioners.

15.—(1) Each Commissioner shall be appointed—

(a) by the Minister, and

(b) on such terms and conditions, including remuneration, as the Minister may fix, with the consent of the Minister for Finance.

(2) Subject to subsection (5), a person shall not be appointed as a Commissioner unless the Civil Service and Local Appointments Commissioners, after holding a competition on behalf of the Commission, have selected him or her for appointment as a Commissioner.

(3) A Commissioner appointed in accordance with subsection (2) shall be appointed on a full-time basis for a period of not less than 3 years and not more than 5 years.

(4) Subject to subsection (5)(c), a Commissioner shall not serve more than 2 terms of office as a Commissioner.

(5) (a) Notwithstanding this section, the person who, immediately before the establishment day, was the Director, shall be deemed to be appointed as a Commissioner upon that day and shall, subject to paragraph (b), stand appointed on the same terms and conditions on which she was previously retained.

(b) Section 19(5) applies to the Commissioner deemed appointed under paragraph (a) instead of paragraph 8 of the First Schedule to the Act of 1996.

(c) The Commissioner deemed appointed under paragraph (a) shall, where her term of office, in accordance with that paragraph, expires by effluxion of time, be deemed to have served 2 terms as a Commissioner and, accordingly, she shall not be eligible for re-appointment as a Commissioner.

16. Appointment of Chairperson of Commission.

16.—(1) Where there is more than one Commissioner, the Minister shall appoint one of them to be the chairperson of the Commission (in this section referred to as “the chairperson”).

(2) The Minister shall, when appointing the chairperson, with the consent of the Minister for Finance, fix the terms and conditions, including remuneration, of the chairperson.

(3) The chairperson shall have a casting vote in the case of decisions to be taken by the Commission in the event of a tied vote.

(4) In circumstances where the chairperson is unavailable to perform his or her duties, the Minister shall appoint an acting chairperson to assume the duties of chairperson of the Commission for a stated period not exceeding 6 months. The acting chairperson shall be an existing Commissioner.

17. Deputy commissioner.

17.—The Commission shall, where there is not more than one Commissioner appointed under section 15, designate a member of its staff as a deputy member of the Commission (“deputy commissioner”) who shall assume and carry out with the authority of the Commission all of the functions of the Commission in the absence of the Commissioner.

18. Resignation and removal of Commissioners.

18.—(1) A Commissioner may resign by giving notice in writing to the Minister of his or her intention to resign and any such resignation shall take effect as of the date upon which the Minister shall have received notice of the resignation.

(2) A Commissioner may be removed from office by the Minister—

(a) if, in his or her opinion, the Commissioner has become incapable through ill health of effectively performing his or her duties, or

(b) for stated misbehaviour.

(3) In removing a Commissioner, the Minister shall give a statement of the reason or reasons for the removal to the Commissioner and the statement of reasons shall be laid before each House of the Oireachtas.

19. Restrictions relating to Commissioners.

19.—(1) A Commissioner shall be deemed to have vacated his or her office where he or she—

(a) is nominated as a member of Seanad Éireann, or

(b) is nominated as a candidate for election as a member of Dáil Éireann, Seanad Éireann or to the European Parliament,

or is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to the European Parliament to fill a vacancy.

(2) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit in either House or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a Commissioner.

(3) (a) A person who is a member of a local authority shall be disqualified from becoming a Commissioner.

(b) A Commissioner shall be deemed to have vacated his or her office where he or she becomes a member of a local authority.

(4) A Commissioner shall not hold any other office or employment in respect of which emoluments are payable.

(5) (a) For a period of 12 months after a Commissioner has ceased to be a Commissioner, such Commissioner shall not accept any office, consultancy or employment where, in the course of such office, consultancy or employment, the Commissioner could or might use or disclose any confidential information acquired by him or her in the exercise of his or her functions under this Act.

(b) Notwithstanding paragraph (a), a person who has held the Office of Director or who was a Commissioner shall not be precluded from—

(i) holding office, or engagement in, any employment in the civil service or any statutory regulatory body, or

(ii) acting as a consultant to any Minister of the Government,

on the basis that the period referred to in that paragraph has not expired.

20. Staff of Commission.

20.—(1) Every person who immediately before the establishment day is a member of the staff of the Director shall on that day become a member of the staff of the Commission.

(2) (a) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (1) shall not, while in the service of the Commission, be brought to less beneficial conditions of service (including conditions in relation to tenure of office) or of remuneration than the conditions of service (including conditions in relation to tenure of office) or remuneration to which he or she was subject immediately before the establishment day.

(b) In this subsection, “recognised trade union or staff association” means a trade union or staff association recognised by the Commission for the purposes of negotiations which are concerned with the remuneration or conditions of employment or the working conditions of employees.

(3) The Commission may—

(a) with the consent of the Minister and the Minister for Finance, determine the number, grading, remuneration and other conditions of service of staff to be appointed to the Office of the Commission, and

(b) appoint to be members of the staff of the Commission such persons as the Commission may determine from time to time.

(4) Where a member of the staff of the Commission has previous service in the civil service, such service shall be reckonable for the purposes of, but subject to any other exceptions or exclusions in, the Redundancy Payments Acts, 1967 to 1991, the Minimum Notice and Terms of Employment Acts, 1973 and 1994, the Unfair Dismissals Acts, 1977 to 1993, the Worker Protection (Regular Part-Time Employees) Act, 1991, and the Organisation of Working Time Act, 1997.

21. Performance of certain functions by staff.

21.—The exercise of functions of the Commission may be carried out by or through any member of the staff or authorised officer of the Commission as the Commission shall deem proper.

22. Consultants.

22.—(1) The Commission may, from time to time, engage such consultants or advisers as it may consider necessary to assist it in the discharge of its functions.

(2) Any fees due to a consultant or adviser engaged under this section shall form part of the expenses of the Commission.

23. Membership of Houses of Oireachtas or European Parliament by staff.

23.—(1) Where a person employed by the Commission is—

(a) nominated as a member of Seanad Éireann,

(b) elected as a member of either House of the Oireachtas or to the European Parliament, or

(c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to the European Parliament to fill a vacancy,

he or she shall upon that happening stand seconded from his or her employment by the Commission and shall not be paid by, or be entitled to receive from, the Commission remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected, as the case may be, and ending when he or she ceases to be a member of either House or such Parliament.

(2) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit in either House or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a member of the staff of the Commission.

(3) Without prejudice to the generality of subsection (1), that subsection shall be read as prohibiting, among other things, the reckoning of a period mentioned in that subsection as service with the Commission for the purposes of any superannuation benefits.

24. Prohibition on unauthorised disclosure of information.

24.—(1) Except where otherwise provided by law, a person shall not disclose confidential information obtained by him or her while performing duties as a Commissioner, member of the staff of, or an adviser or consultant to, or as an authorised officer of, or as an agent of the Commission, unless he or she is duly authorised by the Commission to do so.

(2) In this section, “confidential information” includes information that is expressed by the Commission to be confidential either as regards particular information or as regards information of a particular class or description.

(3) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

(4) Nothing in subsection (1) shall prevent the disclosure of information in a report made to the Commission or by or on behalf of the Commission to the Minister.

(5) The Freedom of Information Act, 1997, is amended at the end of Part 1 of the Third Schedule by inserting the following:

(a) “Communications Regulation Act, 2002” in column (2), and

(b) “Section 24” in column (3).

24A. F56[Protection of whistleblowers.

24A.—(1) A person who makes an appropriate disclosure of information to the Commission about the conduct ofF57[an undertaking, an associate of an undertaking, an association of undertakings or a postal service provider]incurs no civil or criminal liability for having done so.

(2) For the purpose ofsubsection (1), a person makes an appropriate disclosure of information about the conduct ofF58[an undertaking, an associate of an undertaking, an association of undertakings or a postal service provider]only if—

F59[(a) the conduct relates to the provision of—

(i) an electronic communications network or service or an associated facility, or

(ii) a postal service,

and]

(b) the person—

(i) believes on reasonable grounds that the information is true, or

(ii) not being able to form a belief on reasonable grounds about the truth of the information, believes on reasonable grounds that the information may be true and to be of sufficient significance to justify its disclosure with a view to enabling its truth to be investigated by the Commission or by a law enforcement authority that has a legitimate interest in receiving the information (such as the Garda Síochána).

F60[(2A)Subsection (1)does not apply where the disclosure is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(3) The Commission may not divulge the identity of a person who has made an appropriate disclosure to it without first obtaining the person’s consent, except in so far as it may be necessary to ensure proper investigation of the matters to which the disclosure relates. This subsection applies despite any other enactment or rule of common law to the contrary.

(4) If a person has made an appropriate disclosure to the Commission, the Commission shall, so far as practicable and in accordance with the law, notify the person of the outcome of any investigation into the matters to which the disclosure relates.

(5) The Commission may decline to accept or deal with a disclosure of information made to it by a person about the conduct ofF61[an undertaking, an associate of an undertaking, an association of undertakings or a postal service provider]if it is satisfied on reasonable grounds that the information is false or misleading or that the disclosure is frivolous or vexatious.]

24B. F62[Tortious liability of undertaking or associate for victimising whistleblower.

F63[24B.—(1) If an undertaking, an associate of an undertaking, an association of undertakings or a postal service provider causes detriment to a person because the person or a third person has made, or threatened to make, an appropriate disclosure of information to the Commission or a law enforcement authority (such as the Garda Síochána) about the conduct of the undertaking, the associate, the association or the postal service provider, the person has a right of action in tort against the undertaking, associate, association or postal service provider, as the case may be.]

F64[(1A)Subsection (1)does not apply where the disclosure is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

(2) In this section, "detriment" includes—

(a) injury, damage or loss, or

(b) intimidation or harassment, or

(c) discrimination, disadvantage or adverse treatment in relation to a person’s employment, or

(d) a threat of reprisal.]

24C. F65[Offence to make false disclosure.

24C.—F66[(1)]A person who makes a disclosure of information about the conduct ofF67[an undertaking, an associate of an undertaking, an association of undertakings or a postal service provider], knowing the information to be false or misleading commits an offence and is liable—

(a) on conviction on indictment, to a fine not exceeding€50,000, or

(b) on summary conviction, to a fine not exceeding€5,000.]

F66[(2)Subsection (1)does not apply where the disclosure is a protected disclosure within the meaning of the Protected Disclosures Act 2014.]

25. Disclosure of interests.

25.—(1) Where a Commissioner, a member of the staff of the Commission, or a consultant, adviser or other person engaged by the Commission, has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Commission, he or she—

(a) shall disclose to the Commission or, where the disclosure is required of a Commissioner and he or she is the only Commissioner, disclose to the Minister, the nature of his or her interest in advance of any consideration of the matter,

(b) shall neither influence nor seek to influence a decision in relation to the matter,

(c) shall take no part in any consideration of the matter, unless there are compelling reasons requiring him or her to do so,

(d) if a Commissioner,

(i) shall withdraw from a meeting of the Commission for so long as the matter is being discussed or considered by the Commission, unless there are compelling reasons requiring him or her not to so withdraw, and

(ii) shall not vote or otherwise act in relation to the matter,

and

(e) shall prepare and furnish to the Commission a statement in writing of the compelling reasons aforesaid.

(2) For the purposes of this section but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if—

(a) he or she or any nominee of his or her is a member of a company or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection,

(b) he or she is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter, or

(c) he or she is a party to any arrangement or agreement (whether or not enforceable) concerning land to which such a matter relates.

(3) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter, by reason only of an interest of his or hers or of any company or of any other body or person mentioned in subsection (2) which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering, discussing or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.

(4) Where a question arises as to whether or not a course of conduct, if pursued by a person, would be a failure by him or her to comply with the requirements of subsection (1), the question shall be determined by the Commission or, where there is only one Commissioner, in the case of that Commissioner, by the Minister.

(5) Where a disclosure is made to the Commission, particulars of the disclosure shall be recorded in the minutes of any meeting concerned.

(6) Where a person, other than a Commissioner, referred to in this section fails to make a disclosure in accordance with this section, the Commission shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(7) Where a Commissioner fails to make a disclosure in accordance with this section, the Minister shall decide the appropriate action (including removal from office) to be taken.

26. Superannuation of Commissioners.

26.—(1) Subject to subsection (7), the Minister may, with the consent of the Minster for Finance, make a scheme or schemes for—

(a) the granting of superannuation benefits to or in respect of a Commissioner ceasing to hold office, or

(b) the making of contributions to a pension scheme approved of by the Minister with the consent of the Minister for Finance which has been entered into by a Commissioner.

(2) The Minister may, with the consent of the Minister for Finance, make a scheme amending or revoking a scheme under subsection (1), including a scheme amended under this subsection.

(3) If any dispute arises as to the claim of a Commissioner to, or the amount of, any superannuation benefit payable in pursuance of a scheme under subsection (1), such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance for determination by him or her.

(4) A scheme under subsection (1) shall be carried out by the Minister in accordance with its terms.

(5) No superannuation benefit shall be granted by the Minister to or in respect of any Commissioner ceasing to hold office otherwise than—

(a) in accordance with a scheme under subsection (1), or

(b) as may be approved of by the Minister with the consent of the Minister for Finance under subsection (1).

(6) (a) A scheme under subsection (1) shall be laid before each House of the Oireachtas by the Minister as soon as may be after it is made.

(b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which the scheme was laid before it in accordance with paragraph (a), annul the scheme.

(c) The annulment of scheme under subsection (1) takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the scheme before the passing of the resolution.

(7) Subsection (1) does not apply to the Commissioner deemed appointed under section 15(5)(a).

F68[(8) In the case of the Commissioner deemed appointed undersection 15(15)(a), she may, on ceasing to hold office, receive such superannuation benefits as may be determined by the Minister, with the consent of the Minister for Finance, up to but not exceeding those that would have been payable to her under the Superannuation Acts 1834 to 1963 andthe Superannuation and Pensions Act 1976had such cessation been from an established position in the civil service to which those Acts apply.]

27. Superannuation of staff.

27.—(1) The Commission may prepare and submit to the Minister a scheme or schemes or make such other arrangements with the approval of the Minister, given with the consent of the Minister for Finance, for the granting of superannuation benefits to or in respect of such members of the staff of the Commission as it may think fit.

(2) Every scheme under subsection (1) shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(3) Every scheme submitted by the Commission to the Minister under subsection (1) may, with the consent of the Minister for Finance, be amended or revoked by a subsequent scheme prepared, submitted and approved under subsection (1).

(4) A scheme under subsection (1) shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Commission in accordance with its terms.

(5) No superannuation benefit shall be granted by the Commission nor shall any other arrangements be entered into by the Commission for the provision of such a benefit to or in respect of a member of the staff of the Commission otherwise than—

(a) in accordance with a scheme under subsection (1), or

(b) as may be approved of by the Minister with the consent of the Minister for Finance.

(6) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme under subsection (1), such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, whose decision shall be final.

(7) As soon as may be after the establishment day, the Commission shall establish a fund, administered by trustees who shall be appointed by the Commission, from which superannuation benefits payable, in respect of a member of the staff of the Commission ceasing to hold office, under a scheme under subsection (1) shall be paid.

(8) The assets and liabilities of a superannuation fund established by the Director for his or her staff shall be transferred to a fund referred to in subsection (7).

(9) The Minister for Finance shall agree with the Commission an appropriate contribution, related to reckonable service given before the establishment day, towards the superannuation benefits which may be granted to or in respect of persons who are transferred from the Office of the Director to the Commission and who have previous service in the civil service, and shall, subject to subsection (11), pay such contribution to the trustees appointed under subsection (7) at such times and in such manner as shall be agreed with the Commission.

(10) Where any part of the contribution under subsection (9) remains unpaid for any period after the establishment day, interest shall be payable by the Minister for Finance to the trustees appointed under subsection (7) at such rate as the Minister for Finance may agree with the Commission in respect of that period on the amount so unpaid.

(11) Payments under subsection (9) or (10) shall be made not later than 7 years after the establishment day.

(12) (a) A scheme under subsection (1) shall be laid before each House of the Oireachtas by the Minister for Finance as soon as may be after it is made.

(b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which the scheme was laid before it in accordance with paragraph (a), annul the scheme.

(c) The annulment of scheme under subsection (1) takes effect immediately on the passing of the resolution concerned but does not affect anything that was done under the scheme before the passing of the resolution.

(13) Moneys required to be paid by the Minister for Finance under this section shall be advanced out of the Central Fund or the growing produce thereof.

28. Advances by Minister to Commission.

28.—(1) The Minister may, from time to time, with the consent of the Minister for Finance, advance to the Commission out of moneys provided by the Oireachtas such sums as the Minister may determine for the purposes of expenditure by the Commission in the performance of its functions.

(2) The sums to be advanced under subsection (1) shall be expended solely for the purpose and exercise of the functions conferred on the Commission by this Act.

(3) The Commission shall pay to the Minister, on every sum advanced to the Commission under this Act, interest from the date of the advance of such sum until the same is repaid at such rate and in such manner as shall be appointed by the Minister at the time of the advance and at such rate as may be determined from time to time, and such rate of interest shall not at any time exceed that fixed by an order under section 20 of the Courts Act, 1981.

29. Borrowings.

29.—The Commission may, for the purpose of the performance of its functions, borrow money but shall not do so without the consent of the Minister and the Minister for Finance.

30. Levies and fees.

30.—(1) For the purpose of—

(a) meeting expenses properly incurred by the Commission in the discharge of its functions in relation to electronic F69[communications,]

(b) enabling the Minister to pay contributions or other membership charges to international telecommunications F69[organisations,F83[…]]

F84[(c)enabling the Commission to have adequate technical, financial and human resources to carry out the tasks assigned to it, and

(d) enabling the Commission to have adequate financial and human resources to enable it to actively participate and contribute to BEREC,]

the Commission may make an order imposing a levy on F69[providers of electronic communications services and on providers of electronic communications networks which are deemed to be authorised underF85[Regulation 6 of the Electronic Communications Code Regulations]].

F72[(1A) For the purposes ofsubsection (1), the expenses of the Commission in relation to the discharge of its functions in relation to electronic communications shall—

F85[(a) cover, in total, only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation system, the licensing scheme for the licence concerned, the schemes for the grant of the rights of use for numbering resources and specific obligations, and may include costs for international co-operation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of any orders under section 3(6) (inserted by section 11(c) of the Wireless Telegraphy Act 1972) of the Wireless Telegraphy Act 1926 or regulations under section 6 of that Act relating to apparatus for wireless telegraphy for the provision of an electronic communications network or service and administrative decisions, such as decisions on access and interconnection, and]

(b) be imposed by the Commission on an individual undertaking in an objective, transparent and proportionate manner which minimises additional administrative costs andF85[associated]charges.]

F84[(1B)(a) For the purposes ofparagraph (1A)(b)and having regard to—

(i) its objectives undersection 12(1)(a),

(ii) the impact of the levy on providers of electronic communications services and providers of electronic communications networks, and

(iii) the need to minimise any distortion or restriction of competition in the market for the provision of the electronic communications concerned,

the Commission may make a determination that such class or classes of electronic communications provider referred to insubsection (1)are exempt from an order made under that subsection.

(b) A determination by the Commission in accordance withparagraph (a)shall only be made:

(i) where the annual turnover of the provider is below an amount specified by the Commission, or

(ii) where the activities of the provider do not reach a market share specified by the Commission, or have a very limited territorial scope.

(c) In this subsection, "turnover" means in relation to a body corporate, the turnover of the body in the financial year of the body ending immediately before the financial year in which the determination referred to inparagraph (a)is made.]

F73[(2) Subject tosubsection (11A), for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions relating to postal services the Commission may make an order imposing a levy on postal service providers providing postal services within the scope of the universal postal service.]

F74[(2A) For the purpose of meeting expenses properly incurred by the Commission in the discharge of its function in relation to premium rate services, the Commission may make an order imposing a levy on premium rate service providers.]

(3) Whenever a levy order is made there shall be paid to the Commission by each F75[provider of postal servicesF76[referred to insubsection (2)]or each provider of electronic communications servicesF77[or premium rate services]or electronic communications networks referred to insubsection (1)] as the case may be such amount as shall be appropriate having regard to the terms of the levy order.

(4) A levy order, including a levy order made under the Act of 1996, may be amended or revoked by the Commission.

(5) Any surplus of levy income over the expenses incurred by the Commission in the discharge of its functions relevant to that levy in a particular financial year shall either—

(a) be retained by the Commission to be offset against levy obligations for the subsequent year, or

(b) be refunded proportionately to the providers on whom the levy is imposed.

F78[(6) Subject tosubsections (7)and(8), the Commission is entitled to retain for its own use all fees and levies paid to or recovered by it under this Act, a related enactment or any other enactment that expressly provides for a fee or levy to be paid to the Commission.]

(7) The Minister may, with the consent of the Minister for Finance, direct the Commission to pay into the Exchequer such sum as he or she may, subject to subsection (8), specify being a sum that, subject to subsection (8), represents the amount by which the aggregate sum received by the Commission in each financial year exceeds the aggregate costs incurred in the administration of its office in that year, less the sum of any surplus referred to in subsection (5) and any interim payments made in accordance with subsection (9).

(8) The method of calculation of the surplus referred to in subsection (7) shall be such method as may be determined by the Minister, with the consent of the Minister for Finance, after consultation with the Commission, taking into account any reasonable requirements of the Commission for funds to meet expenses.

(9) Where the Commission receives substantial licence fee income, the Minister may, after consultation with the Commission and with the consent of the Minister for Finance, direct the Commission to pay into the Exchequer, such sum which represents an interim payment of the sum referred to in subsection (7).

(10) The Public Offices Fees Act, 1879, does not apply in respect of fees payable to the Commission pursuant to this Act.

F79[(11) The Commission shall not impose a levy on providers of—

(a) electronic communications for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of postal services or premium rate services,

(b) postal services for the purpose of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of electronic communications services or premium rate services, or

(c) premium rate services for the purposes of meeting expenses properly incurred by the Commission in the discharge of its functions in respect of postal services or electronic communications services.]

F80[(11A) (a) A levy imposed pursuant tosubsection (2)shall be imposed in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges to the Commission.

(b) For the purposes ofparagraph (a)and having regard to—

(i) its objectives undersection 12(1)(c),

(ii) the impact of the levy on postal service providers, and

(iii) the need to minimise any distortion or restriction of competition in the market for the provision of the postal services concerned,

the Commission may make a determination that such class or classes of postal service provider referred to insubsection (2)are exempt from an order made under that subsection.]

(12) The Commission may recover as a simple contract debt in any court of competent jurisdiction from the person by whom it is payable any amount due and owing to it under this section.

F81[(12A) The Commission shall, in relation to a levy order, cause to be published, whether in its annual report and accounts referred to insection 32or otherwise, an annual overview of its administrative costs and of the total sum of the charges collected undersubsection (1).

(12B) The Commission shall, in the case of charges imposed on an annual basis, make appropriate repayments or compensation in the case of overcharging or additional charges in the case of undercharging by a person to whom a charge is imposed in the light of any difference between the total sum of the administrative charges collected undersubsection (1)and the administrative costs incurred.]

(13) In this section “levy order” means an order imposing levy under F82[this section].

31. Strategy statements.

31.—(1) The Commission shall draw up and adopt a strategy statement reflecting its statutory functions.

(2) In drawing up a strategy statement under subsection (1), the Commission shall distinguish between its functions in relation to electronic communications, F86[premium rate services,] management of radio frequency spectrum and postal services.

(3) A strategy statement shall—

(a) be adopted within 6 months of the establishment day and every 2 years thereafter, and

(b) take into account the objectives set out in section 12 and any directions under section 13.

(4) The Commission shall present a copy of a strategy statement to the Minister and to such committees of either or both Houses of the Oireachtas as the Minister may, from time to time, direct.

(5) Prior to the adoption of a strategy statement and its presentation to the Minister, the Commission shall undertake a public consultation process on a draft of the strategy statement.

31A. F87[Financial year of Commission.

31A.—(1) The financial year of the Commission is—

(a) the period of 12 months beginning on 1 July in each year, or

(b) if the Commission has published a notice in accordance withsubsection (2), the period specified in the notice.

(2) The Commission may, by notice published inIris Oifigiúil, specify as the Commission’s financial year a period different from that specified insubsection (1)(a)or previously specified under this subsection.]

31B. F88[Commission to prepare annual action plan.

31B.—(1) Before the end of each financial year of the Commission, the Commission shall—

(a) prepare an action plan setting out the principal activities that it proposes to undertake during the ensuing financial year, and

(b) present the plan to the Minister and arrange for a copy of the plan to be laid before each House of the Oireachtas.

(2) The action plan shall segregate the relevant activities according to the Commission’s functions relating to—

(a) regulating electronic communications, and

(b) managing the radio frequency spectrum, and

F89[(c) regulating postal services, and

(d) regulating premium rate services.]

(3) In preparing the action plan, the Commission shall have regard to its current strategy statement.

(4) As soon as practicable after preparing an action plan, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.]

31C. F90[Commission to prepare annual financial forecast.

31C.—(1) Before the end of each financial year of the Commission, the Commission shall—

(a) prepare a financial forecast showing estimates of the Commission’s revenue and expenditure for the ensuing financial year in relation to the activities referred to in the Commission’s action plan for that year, and

(b) present the forecast to the Minister.

(2) In preparing its annual financial forecast, the Commission shall estimate the amounts of revenue expected to be derived, and the amount of expenditure expected to be made, in respect of each of its functions relating to electronic communications,F91[premium rate services,]managing the radio frequency spectrum and postal services.

(3) As soon as practicable after preparing its annual financial forecast, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.]

31D. F92[Report on state of electronic communication markets.

31D.—The Commission shall report annually to the Minister on the state of the electronic communications markets, on the decisions it issues, on its human, financial and technical resources and how those resources are attributed.]

32. Accounts and annual report.

32.—(1) In accordance with good accounting practice, the Commission shall keep, in such form as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of all moneys received or expended by it including an income and expenditure account and balance sheet, distinguishing between—

(a) its functions relating to electronic communications F93[and premium rate services], and

(b) its functions relating to postal matters.

(2) (a) Within 3 months of the end of each financial year, the Commission shall submit accounts kept under subsection (1) in respect of that financial year to the Comptroller and Auditor General for audit.

(b) Within 42 days of the accounts being audited by the Comptroller and Auditor General, they shall, together with the report of the Comptroller and Auditor General on those accounts, be presented by the Commission to the Minister.

(c) The Minister shall cause copies of the accounts and report referred to in paragraph (b) to be laid before each House of the Oireachtas.

(3) The Commission shall, when presenting the report referred to in subsection (2)(b) to the Minister, present a report to the Minister in relation to—

(a) the performance of its functions in the previous financial year,

(b) its proposed work programme for the following year, with reference to progress on the strategy statement, and

(c) adherence to its code of financial management under section 33.

33. Code of financial management.

33.—(1) The Commission shall adopt, with the approval of the Minister and the Minister for Finance, a code of financial management and shall arrange for its publication following such approval.

(2) The Commission shall periodically review its code of financial management and revise and republish the code as appropriate.

(3) The Commission shall comment in its annual report on adherence to its code of financial management.

34. Accountability of Commission to Committees of Oireachtas.

34.—(1) F94[Subject tosubsection (3), the chairperson of the Commission shall], whenever required by a Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on— ...

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General which the Commission is required by or under statute to prepare,

(b) the economy and efficiency of the Commission in the use of its resources,

(c) the systems, procedures and practices employed by the Commission for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting the Commission referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act, 1993, or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) F94[Subject tosubsection (3), from time to time], and whenever so requested, the Commission shall account for the performance of its functions to a Committee of one or both Houses of the Oireachtas.

F95[(3) The chairperson of the Commission shall not be required to give evidence in relation to, or account for, the functions of adjudication officers appointed in respect of the Commission in accordance with the Competition Act 2002.]

35. Radio frequency plan.

35.—(1) The Radio Frequency Plan (in this section referred to as “the plan”) published under section 3(5) of the Act of 1996 shall on the establishment day continue.

(2) The Commission shall revise and republish the plan from time to time.

(3) The Commission shall, in formulating, revising and implementing the Radio Frequency Plan, comply with any direction given by the Minister under section 13.

(4) The plan shall be comprised of a set of tables indicating frequency allocations in the radio spectrum at the date of publication of the plan.

36. Public service requirements.

36.—(1) The Minister may from time to time specify public service requirements in relation to licences or authorisations mentioned in subsection (3).

(2) Any requirements specified under subsection (1) shall be published by the Minister in Iris Oifigiúil.

(3) It shall be a condition of any licence or authorisation to provide a network service or system referred to in section 111(2) (inserted by S.I. No. 96 of 1998) of the Postal and Telecommunications Services Act, 1983, that the holder of the licence or authorisation complies with any public service requirements under subsection (1).

(4) In this section, “public service requirements” means essential requirements and requirements relating to conditions of permanence and availability provided or to be provided by the provider of electronic communications, services, networks or associated facilities.

37. Regulations relating to wireless telegraphy.

37.—Regulations shall not be made by the Commission under section 6 of the Wireless Telegraphy Act, 1926, other than with the consent of the Minister.

38. Repeals.

38.—Sections 2 to 6, 11, 12 and 14 of, and the First, Second and Third Schedules to, the Act of 1996 are repealed on the establishment day.

F96[PART 2A Special Powers to Require Persons to Give Evidence or Produce Documents] Annotations Amendments: F96 Inserted (15.05.2007) by Communications Regulation (Amendment) Act 2007 (22/2007), s. 10, S.I. No. 224 of 2007.

38A. F97[Commission may require persons to give evidence or produce documents.

38A.—(1) If the Commission believes on reasonable grounds that a person may be able to give evidence, or to produce a document, that relates to a matter concerning the performance or exercise of any of the Commission’s functions or objectivesF98[(other than its functions or objectives relating to postal services)], it may serve on the person a notice requiring the person to appear before it—

(a) to give evidence about the matter, or

(b) to produce the document for examination.

(2) The notice shall specify—

(a) the matter to which the evidence or document relates, and

(b) the date, time and place at which the person is required to appear before the Commission.

(3) The notice may require the person concerned to appear before a specified Commissioner or a specified member of the Commission’s staff and, if it does so, a reference in this Part to the Commission is to be read as a reference to the Commissioner or staff member concerned.]

38B. F99[Conduct of proceeding under this Part.

38B.—(1) A person who appears before the Commission in compliance with a requirement made undersection 38Amay be required to swear an oath or make an affirmation.

(2) An oath or affirmation must be administered by the Commission.

(3) A person who appears before the Commission undersection 38Ais entitled to be accompanied by a barrister or solicitor or, with the approval of the Commission, any other person.]

38C. F100[Proceeding under this Part to be normally in private.

38C.—(1) Except as provided by thissection, evidence to be given, or a document to be produced, to the Commission by a person who appears before it in compliance with a requirement made undersection 38Ais to be given or produced in private.

(2) If a person who appears before the Commission in compliance with a requirement made undersection 38Arequests the matter to be dealt with in public, the Commission shall comply with the request.

(3) If the Commission is satisfied that it is desirable in the public interest that the evidence to be given, or the document to be produced, should be given or produced in public, the Commission may direct accordingly.

(4) If the evidence is to be given, or the document is to be produced, in private, the Commission may do either of the following:

(a) give directions as to the persons who may be present during the proceeding;