Communications Regulation Act 2002

(b) give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.

(5) Nothing in a direction given undersubsection (4)may prevent the presence of—

(a) a barrister, solicitor or other person who is representing the person who is appearing before the Commission, or

(b) a Commissioner or a member of the Commission’s staff.

(6) If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Commission, that person’s barrister, solicitor or other representative, a Commissioner or a member of the Commission’s staff) may be present only if entitled to be present because of a direction given undersubsection (4)(a).

(7) A person who contravenessubsection (6)commits an offence.]

38D. F101[Offence to fail to appear before Commission.

38D.—(1) A person commits an offence if, having been required to appear before the Commission in compliance with a requirement made undersection 38A, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Commission.

F102[(2)Subsection (1)does not apply if—

(a) the person has a reasonable excuse, or

(b) the requirement undersection 38Awas made in relation to an investigation, hearing or any other matter under Part 2C of the Competition Act 2002.]]

38E. F103[Offence to refuse to be sworn or to answer question.

38E.—(1) A person appearing before the Commission in compliance with a requirement made undersection 38A, commits an offence if the person—

(a) refuses or fails to swear an oath, or to make an affirmation, on being required to do so by the Commission, or

(b) refuses or fails to give evidence in compliance with a requirement made undersection 38A, or refuses or fails to answer a question put to the person by the Commission in relation to any such evidence, or

(c) refuses or fails to produce a document that is required to be produced in compliance with such a requirement.

(2)Subsection (1)does not apply if the person has a reasonable excuse.

(3) It is a reasonable excuse for the purposes ofsubsection (2)for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.

(4) It is a reasonable excuse for the purposes ofsubsection (2)for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.

(5)Subsections (3)and(4)do not limit what is a reasonable excuse for the purposes ofsubsection (2).]

38F. F104[Protection of persons appearing before Commission under section 38A.

38F.—Subject to this Part, a person who appears before the Commission in compliance with a requirement made undersection 38Ahas the same protection, and is, in addition to the offences under this Part, subject to the same liabilities, as a witness in proceedings in the High Court.]

38G. F105[Payment of allowances and expenses to persons who appear before Commission.

38G.—(1) A person who appears before the Commission in compliance with a requirement made undersection 38Ais entitled to be paid such allowances and travelling or other expenses as are payable to or in respect of a witness attending in civil proceedings before the High Court.

(2) All allowances and expenses payable undersubsection (1)are payable by the Commission.]

38H. F106[Trial of offences under this Part.

38H.—(1) An offence under this Part is triable summarily.

(2) A person found guilty of an offence under this Part is liable to a fine not exceeding€5,000.]

PART 3 Enforcement

39. Authorised officers.

39.—(1) The Commission may appoint persons to be authorised officers for the purposes of this Act F107[, the Competition Act 2002, the Consumer Protection Act 2007, the Competition and Consumer Protection Act 2014, the Consumer Rights Act 2022, a transferred function or any regulations made under the Act of 1972].

(2) A person appointed under subsection (1) shall, on his or her appointment, be furnished by the Commission with a certificate of his or her appointment and when exercising a power conferred by subsection (3) shall, if requested by any person thereby affected, produce such certificate to that person for inspection.

(3) For the purposes of the exercise by the Commission of its functions under F108[this Act,F109[a related enactment,]the Competition Act 2002 (other than functions related to obtaining information which may be required in relation to a matter under investigation under relevant competition law),F110[the Consumer Protection Act 2007, the Competition and Consumer Protection Act 2014 and the Consumer Rights Act 2022,]a transferred function or any regulations made under the Act of 1972], an authorised officer may—

(a) enter, at any reasonable time, any premises or place or any vehicle or vessel where any activity connected with the provision of electronic communications services, networks or associated facilities or postal services F111[or premium rate services] takes place or, in the opinion of the officer takes place, and search and inspect the premises, place, vehicle or vessel and any books, documents or records found therein,

(b) require any such person to produce to him or her any books, documents or records relating to the provision of electronic communications services, networks or associated facilities or postal services F111[or premium rate services] which are in the person's power or control and, in the case of information in a non-legible form to reproduce it in a legible form, and to give to the officer such information as he or she may reasonably require in relation to any entries in such books, documents or records,

(c) secure for later inspection any such premises, place, vehicle or vessel or part thereof in which books, documents or records relating to the provision of electronic communications services, networks or associated facilities or postal services F111[or premium rate services] are kept or there are reasonable grounds for believing that such books, documents or records are kept,

(d) inspect and take extracts from or make copies of any such books, documents or records (including, in the case of information in a non-legible form, a copy of or extract from such information in a permanent legible form),

(e) remove and retain such books, documents or records for such period as may be reasonable for further examination,

(f) require the person to maintain such books, documents or records for such period of time, as may be reasonable, as the authorised officer directs,

(g) require the person to give to the officer any information which he or she may reasonably require with regard to the provision of electronic communications services, networks or associated facilities or postal services F111[or premium rate services],

(h) make such inspections, tests and measurements of machinery, apparatus, appliances and other equipment on the premises or vessel or at the place or in the vehicle as he or she considers appropriate,

(i) require any person on the premises or vessel or at the place or in the vehicle having charge of, or otherwise concerned with the operation of, any machinery, apparatus, appliance or other equipment (including data equipment) or any associated apparatus or material, to afford the officer all reasonable assistance in relation thereto,

(j) take photographs or make any record or visual recording of any activity on such premises or vessel, at such place or in such vehicle.

F109[(k) require any person who appears to the authorised officer to be in a position to facilitate access to the documents or records stored in any data equipment or computer on the premises, land or vessel or at the place or in the vehicle or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by giving to the authorised officer any password necessary to access the documents or records concerned, or to make the documents or records legible and comprehensible,

(l) take possession of and detain any computer, machinery, apparatus, appliance or any equipment or part thereof on the premises, land or vessel or at the place or in the vehicle as he or she considers appropriate.]

F112[(3A) For the purpose of—

(a) obtaining any information which may be required in relation to a matter under investigation under relevant competition law,

(b) carrying out any inspection or other fact-finding measure on behalf and for the account of a competition authority of another Member State in accordance with Article 22(1) of the Regulation of 2003,

(c) undertaking inspections considered necessary by, or ordered by, the European Commission with which the Commission has been requested to assist in accordance with Article 22(2) of the Regulation of 2003, or

(d) assisting the European Commission with an inspection conducted by the European Commission in accordance with Article 20 or 21 of the Regulation of 2003,

an authorised officer may, on production of a warrant issued undersection 40Aor40Bauthorising him or her to exercise one or more specified powers undersubsection (3B), exercise that power or those powers.

(3B) The powers referred to insubsection (3A)are the following:

(a) to enter, if necessary by reasonable force, and search—

(i) any place at which, or any vehicle with which, any activity in connection with the business of supplying or distributing goods or providing a service, or in connection with the organisation or assistance of persons engaged in any such business, is carried on, or

(ii) any place at which books, documents or records relating to the carrying on of a business referred to insubparagraph (i)are being kept,

including, but not limited to, any place occupied by a director, manager or any member of staff of an undertaking that carries on an activity or of an association of undertakings that carry on activities;

(b) to enter, if necessary by reasonable force, and search any place occupied by a director, manager or any member of staff of an undertaking that carries on an activity or of an association of undertakings that carry on activities, being, in either case, a place in respect of which there are reasonable grounds to believe books, documents or records relating to the carrying on of that activity or those activities are being kept;

(c) to seize and retain any books, documents, records, computers or any other storage medium in which any record is kept relating to an activity found at any place referred to inparagraph (a)or(b)and take any other steps which appear to the officer to be necessary for preserving, or preventing interference with, such books, documents, records, computers or media including—

(i) taking or obtaining, in any form, copies of or extracts from such books, documents or records, and

(ii) continuing, at any time, to search books, documents or records so seized, or any copies made thereof or extracts taken therefrom, at a premises other than the premises so entered;

(d) to require any person who carries on an activity referred to inparagraph (a)and any person employed in connection therewith to—

(i) give to the authorised officer his or her name, home address and occupation, and

(ii) provide to the authorised officer any books, documents or records relating to that activity which are in that person’s power or control, and to give to the officer such information as he or she may reasonably require in regard to any entries in such books, documents or records, and where such books, documents or records are kept in a non-legible form to reproduce them in a legible form;

(e) to inspect and take copies of or extracts from any such books, documents or records, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form;

(f) to require a person mentioned inparagraph (d)to give to the authorised officer any information he or she may require in regard to the persons carrying on the activity referred to inparagraph (a)(including in particular, in the case of an unincorporated body of persons, information in regard to the membership thereof and its committee of management or other controlling authority) or employed in connection therewith;

(g) to require a person mentioned inparagraph (d)to give to the authorised officer any other information which the officer may reasonably require in regard to the activity referred to inparagraph (a);

(h) to require any person who appears to the authorised officer to be in a position to facilitate access to documents or records stored in any data equipment or computer, or which can be accessed by the use of that data equipment or computer, to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by—

(i) providing the documents or records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible,

(ii) giving to the authorised officer any password necessary to make the documents or records concerned legible and comprehensible, or

(iii) otherwise enabling the authorised officer to examine the documents or records in a form in which they are legible and comprehensible;

(i) where the authorised officer considers it necessary to do so in order to preserve for inspection records, documents or any other matter, to secure, for later inspection, and for such period as may reasonably be necessary for the purposes of the exercise of the authorised officer’s powers under this section—

(i) documents or records accessed or found during a search under this section, and any data equipment, including any computer, in which those documents or records may be held, and

(ii) a place entered pursuant to this section, or any part of such place.]

(4) Where an authorised officer in exercise of his or her powers under F108[subsection (3)] is prevented from entering any premises or place, an application may be made under section 40 for a warrant to authorise such entry.

(5) F108[An authorised officer, other than where exercising functions in relation to a matter under investigation under relevant competition law, shall not] other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant under section 40 authorising such entry.

(6) A person to whom this section applies who—

(a) obstructs, impedes or assaults an authorised officer in the exercise of a power under this section,

(b) fails or refuses to comply with a requirement under this section,

(c) alters, suppresses or destroys any books, documents or records which the person concerned has been required to produce, or may reasonably expect to be required to produce,

(d) gives to the Commission or to an authorised officer information which is false or misleading in a material respect, or

(e) falsely represents himself or herself to be an authorised officer,

is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

(7) An authorised officer appointed under section 12 of the Act of 1996 and holding office immediately before the establishment day continues in office as if appointed under this section.

F112[(8) Where a member of the Garda Síochána arrests, whether in a Garda Síochána station or elsewhere, a person whom he or she, with reasonable cause, suspects of committing or of having committed an offence under section 6 or 7 of the Competition Act 2002 and the person has been taken to and detained in a Garda Síochána station, or if the person is arrested in a Garda Síochána station, has been detained in the station, pursuant to section 4 of the Criminal Justice Act 1984, an authorised officer or officers (but not more than 2 such officers) may, if and for so long as the officer or officers is, or are, accompanied by a member of the Garda Síochána, attend at, and participate in, the questioning of a person so detained in connection with the investigation of the offence, but only if the member of the Garda Síochána requests the authorised officer or officers to do so and the member is satisfied that the attendance at, and participation in, such questioning of the authorised officer or officers is necessary for the proper investigation of the offence concerned.

(9) An authorised officer who attends at, and participates in, the questioning of a person in accordance withsubsection (8)may not commit any act or make any omission which, if committed or made by a member of the Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984.

(10) An act committed or omission made by an authorised officer who attends at, and participates in, the questioning of a person in accordance withsubsection (9)which, if committed or made by a member of the Garda Síochána, would be a contravention of any regulation made under section 7 of the Criminal Justice Act 1984 shall not of itself render the authorised officer liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him or her.

F109[(11) A reference in this section to a book, document or record is a reference to a book, document or record irrespective of the medium on which it may be stored.]

(11) Where a person is before a court charged with an offence under section 6 or 7 of the Competition Act 2002, a copy of any recording of the questioning of the person by a member of the Garda Síochána or authorised officer while he or she was detained in a Garda Síochána station, or such questioning elsewhere, in connection with the investigation of the offence shall be given to the person or his or her legal representative only if the court so directs and subject to such conditions (if any) as the court may specify.

(12) A recording referred to insubsection (11)of the questioning of a person shall not be given to the person by the Garda Síochána except in accordance with a direction or order of a court made under that subsection or otherwise.

(13) A court may admit in evidence at the trial of a person in respect of an offence under section 6 or 7 of the Competition Act 2002—

(a) a recording by electronic or similar means, or

(b) a transcript of such a recording,

or both, of the questioning of the person by a member of the Garda Síochána or authorised officer at a Garda Síochána station or elsewhere in connection with the investigation of the offence.

(14) Any statement made by the person concerned that is recorded in a recording which is admitted in evidence undersubsection (13)may be admissible in evidence at the trial concerned notwithstanding the fact that—

(a) it was not taken down in writing at the time it was made, or

(b) that statement is not in writing and signed by the person who made it,

or both.

(15)Subsections (13)and(14)shall not affect the admissibility in evidence at the trial of a person in respect of an offence of any statement that is recorded in writing made by the person during questioning by a member of the Garda Síochána or authorised officer at a Garda Síochána station or elsewhere in connection with the investigation of the offence (whether or not that statement is signed by the person) and irrespective of whether the making of that statement is recorded by electronic or similar means.

(16) Section 9 of the Criminal Law Act 1976 shall apply in relation to a search carried out by an authorised officer pursuant to a warrant issued undersubsection (3)or(3A)as it applies to a search carried out by a member of the Garda Síochána in the course of exercising his or her powers under that Act.

(17) In this section—

"recording" means a recording on tape of—

(a) an oral communication, statement or utterance, or

(b) a series of visual images which, when reproduced on tape, appear as a moving picture,

or both;

"Regulation of 2003" means Regulation (EC) No. 1/2003 of 16 December 2002^9on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

"relevant competition law" has the meaning it has in the Competition Act 2002.]

39A. F113[Requests for information relating to investigations.

39A.(1) In the course of investigating a suspected infringement of relevant competition law, the Commission, or an authorised officer appointed undersection 39, may in writing require a person or undertaking under investigation to provide the Commission or officer, as the case may be, with information that is connected to, and reasonably necessary for, the purposes of the investigation.

(2) A requirement undersubsection (1)—

(a) shall specify a period within which it is to be complied with, which period shall be reasonable having regard to the nature of the request, the context in which the information is requested and the circumstances of the person or undertaking of whom the request is made, and

(b) shall not require a person of whom it is made to admit to having contravened relevant competition law.

(3) A person or undertaking of whom a requirement undersubsection (1)is made shall comply with it within the period specified in the requirement.

(4) A person who—

(a) provides the Commission or officer, as the case may be, with information that the person knows, or ought reasonably to know, is false or misleading in a material respect, or

(b) fails, without reasonable cause, to provide information pursuant to a requirement undersubsection (1),

is guilty of an offence.

(5) A person guilty of an offence under this section 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 a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years or both.

(6) In this section, "relevant competition law" has the meaning it has in the Competition Act 2002.]

40. Search warrants.

40.—If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that information required by an authorised officer for the purpose of the Commission exercising its functions under this Act, a transferred function or regulations made under the Act of 1972 is held F114[on any land,] at any premises or place or on any vessel or in any vehicle, the judge may issue a warrant authorising the authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times, within one month from the date of issue of the warrant, on production, if so required, of the warrant, to enter, if need be by reasonable force, F115[the land, premises], place, vessel or vehicle and exercise all or any of the powers conferred on an authorised officer F116[undersection 39other thansubsection (3B)of that section.].

40A. F117[Search warrants in relation to certain competition law matters.

40A.Subject tosection 40B, if a judge of the District Court is satisfied by information on oath of an authorised officer that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an offence under the Competition Act 2002 or an infringement, whether or not the infringement is criminal in nature, of relevant competition law (within the meaning of the Competition Act 2002) is to be found in any place, the judge may issue a warrant authorising an authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer undersection 39(3B).]

40B. F118[Search warrants relevant to assisting the European Commission with an inspection.

40B.Where an authorised officer provides information on oath to a judge of the District Court for the purpose of a warrant being issued in relation to an inspection referred to inparagraph (d)ofsection 39(3A)—

(a) the information on oath so provided shall include—

(i) a statement to the effect that the information on oath is being provided in relation to an inspection referred to inparagraph (d)ofsection 39(3A), and

(ii) sufficient information to allow the judge of the District Court to discharge his or her functions under the Regulation of 2003,

(b) before issuing the warrant, the judge of the District Court shall—

(i) where the warrant would, if issued, authorise the authorised officer to exercise powers undersection 39(3B)in relation to any place or land other than that referred to insubparagraph (ii), including the home or private vehicle of a director, manager or any member of staff of an undertaking, have regard to the matters referred to in Article 21(3) of the Regulation of 2003, and

(ii) where the warrant would, if issued, authorise the authorised officer to exercise powers undersection 39(3B)in relation to any place or land of an undertaking or association of undertakings, have regard to the matters referred to in Article 20(8) of the Regulation of 2003,

and

(c) the judge of the District Court, shall, where he or she is satisfied as regards the matters referred to in Article 20(8) or 21(3) of the Regulation of 2003, as the case may be, issue a warrant authorising an authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant, to enter and search the place or land using reasonable force where necessary, and exercise all or any of the powers conferred on an authorised officer undersection 39(3B).]

41. Indemnification.

41.—Where the Commission is satisfied that any member of the staff of the Commission or an authorised officer has discharged his or her duties in pursuance of the functions of the Commission in a bona fide manner, the Commission shall indemnify such member of staff or authorised officer, against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.

42. Offences of bodies corporate.

42.—Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

43. F119[Prosecution of summary offences by Commission.

43.—(1) Subject tosubsection (2),F120[an offence under this Act or a related enactment that may be prosecuted summarily may only be prosecuted summarily]by the Commission or by some other person authorised by law to prosecute offences.

F121[(2)Subsection (1)does not apply to a prosecution for an offence under—

(a)section 53(2),

(b) the European Communities (Electronic Communications Networks and Services) (Universal Service and Users’Rights) Regulations 2003 (S.I. No. 308 of 2003),

(c) the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 (S.I. No. 535 of 2003), or

(d)section 53,55,56(2),57or58of the Communications Regulation (Postal Services) Act 2011.]]

F122[(3) (a) In this subsection“relevant offence”means an offence under—

(i) section13C(2)or(5), 13D(2) or (5), 13F(5), 24(3), 38C, 38D, 38E, 39(6)or45(2)of this Act,

(ii)section 13of theCommunications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010, or

(iii)section 38(7),42(4),56(1) or (2),57(2) or58of the Communications Regulation (Postal Services) Act 2011.

(b) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for a relevant offence may be instituted within 12 months from the date on which the offence was committed.]

F123[(4) Section 1 (1) of the Probation of Offenders Act 1907 shall not apply to an offence under this Act or a related enactment.]

44. Notice by Commission of intention to prosecute, etc.

44.—F124[(1) If the Commission believes on reasonable grounds that a person has committed a summary offence under this ActF125[(other than an offence undersection 53,55,56(2),57or58of the Communications Regulation (Postal Services) Act 2011)]or under a related enactment, the Commission may give to the person (or, if the person believed to have committed the offence is a body corporate, to an officer of the body) a notice stating that—

(a) the person is alleged to have committed the offence, and

(b) if, within 21 days from the date on which the notice was given, the person, as far as is practicable, remedies to the satisfaction of the Commission the matter giving rise to the offence and pays to the Commission€1,500, accompanied by the notice, the person or body will not be prosecuted for the offence.]

(2) Where a notice is given under subsection (1)—

(a) a person to whom it applies may, during the period specified in the notice, make to the Commission the payment specified in the notice, accompanied by the notice,

(b) the Commission may receive the payment and issue a receipt for it, and any payment so received shall not be recoverable in any circumstances by the person who made it, and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and, if the default is remedied to the satisfaction of the Commission and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence to which this section applies, the onus of showing that a payment pursuant to a notice under this section has been made shall lie on the defendant.

(4) All payments made to the Commission in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(5) F126[…]

(6) Section 60 (other than subsection (1)(e)) applies to a notice given under this section.

(7) F126[…]

45. Undertaking not to overcharge or charge for services not supplied.

F127[45.(1) A person shall not impose, or purport to impose, a charge for supplying an electronic communications service or electronic communications product to an end-user that exceeds the amount for that service or product specified—

(a) in the undertaking’s published tariff of charges, or

(b) in a written statement previously made or given to the end-user by the undertaking in relation to that supply.

(2) A person shall not impose, or purport to impose, a charge for an electronic communications service or electronic communications product that was—

(a) supplied to an end-user but not requested by him or her,

(b) requested by an end-user but not supplied to him or her, or

(c) neither supplied to, nor requested by, a person.

(3) A person that contravenessubsection (1)or(2)commits an offence and is liable on summary conviction to a class A fine.

(4) In carrying out an investigation to ascertain whether a person may be contravening or may have contravenedsubsection (1)or(2), the Commission may conduct an audit of the undertaking’s billing system.

(5) In this section, "tariff of charges", in relation to a person, includes any list setting out the prices charged by the undertaking for providing electronic communications services or electronic communications products to end-users.]

F129[46.(1) If it appears to the Commission that a person is contravening or has contravened or, having contravened, may in the future contravene—

(a)section 45(1)or(2),

(b) Regulation 89 or 90 of the European Union (Electronic Communications Code) Regulations 2022, or

(c) section 13 (1) of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010,

the Commission may apply to the High Court, by motion, for an order undersubsection (7)restraining such contravention.

(2) The Commission may conduct an audit of—

(a) the billing system, switching system or contract change system of an undertaking, or

(b) the billing system of a premium rate service provider,

prior to making an application to the High Court referred to insubsection (1).

(3) The High Court may hear the application undersubsection (1)only if it is satisfied that a copy of the application has been served on the undertaking or premium rate service provider concerned. On being served with such a copy, that undertaking or provider becomes the respondent to the application.

(4) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made undersubsection (1).

(5) The High Court may not require the Commission to give an undertaking as to damages as a condition for the granting of an order undersubsection (4).

(6) The Court may not refuse interim or interlocutory relief undersubsection (4)merely because the Commission might not suffer damage if relief were not granted pending determination of the application.

(7) On the hearing of an application made undersubsection (1), the High Court may make a restraining order requiring the undertaking or premium rate service provider to cease the contravention concerned and not to repeat it, or, if it is of the opinion that the application is not substantiated, refuse the application.

(8) An application for a restraining order undersubsection (1)may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention.

(9) On hearing the further application, the High Court may if it is satisfied, having previously been satisfied that the respondent has contravened the provision concerned, and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount may be more or less than the amount proposed by the Commission.

(10) The circumstances surrounding the contravention referred to insubsection (9)include (but are not limited to) the following:

(a) the duration of the contravention;

(b) the effect of the contravention on other parties to the relevant decision, and on end-users and on end-users of premium rate services;

(c) the submission of the Commission with respect to what it considers to be the appropriate amount;

(d) any excuse or explanation for the contravention provided by the respondent.

(11) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.]

46A. F130[Special powers enabling Minister to make regulations to give effect to European Communities instruments relating to communications matters.

46A.—(1) If regulations specified inPart 2ofSchedule 1(inserted bysection 18of the Communications Regulation (Amendment) Act 2007) that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, create an offence that is triable summarily, and the Minister considers it is necessary to do so for the purpose of giving effect to the provision or act, the Minister may, by regulations, amend the regulations—

(a) to provide for the offence to be also triable on indictment, and

(b) subject tosubsection (6), to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(2) If regulations specified inPart 2ofSchedule 1that give effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, prohibit or require the doing of an act, the Minister may, where he or she considers it necessary for the purpose of giving effect to the provision or act, make regulations amending the first-mentioned regulations—

(a) to provide that a contravention of the prohibited act, or a failure or refusal to perform the required act, is an offence,

(b) to provide for the offence to be triable—

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act concerned, and

(c) subject tosubsection (6), to make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions to which the offence relates.

(3) The Minister may make regulations for the purpose of giving effect to a provision of the treaties governing the European Communities, or an act, or provision of an act, adopted by an institution of those Communities, relating to—

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

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

(c) a postal service.

(4) Regulations undersubsection (3)may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of those regulations (including provisions repealing, amending or applying, with or without modification, a related enactment).

(5) Regulations undersubsection (3)may—

(a) provide for an offence under those regulations to be triable—

(i) summarily, or

(ii) on indictment, if the Minister considers it necessary for the purpose of giving effect to the provision or act referred to insubsection (3),

and

(b) subject tosubsection (6), make such provision as the Minister considers necessary for the purpose of ensuring that penalties in respect of the offence are effective and proportionate, and have a deterrent effect, having regard to the act or omission to which the offence relates.

(6) The maximum fine that may be provided for in regulations under this section shall—

(a) in respect of the conviction on indictment of a body corporate of an offence under the regulations, not be greater than—

(i)€5,000,000, or

(ii) if 10 per cent of the turnover of the body is greater than that amount, an amount equal to that percentage,

or

(b) in respect of the conviction on indictment of any other person of such an offence, not be greater than€500,000.

(7) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations undersubsection (1),(2)or(3), provide—

(a) for the High Court, on application by the Commission or some other person specified in the regulations, to make—

(i) an order requiring a specified person, or a person belonging to a specified class, to comply with an obligation imposed by or under the regulations, or

(ii) an order restraining such a person from continuing to contravene a prohibition or restriction specified in or under the regulations,

and

(b) for the High Court, on being satisfied that such a person has failed to comply with such an obligation, or has contravened such a prohibition or restriction, to order the person to pay a financial penalty of such amount as the Court considers appropriate, having regard to the circumstances of the failure to comply or contravention, including—

(i) the duration of the failure to comply or the contravention,

(ii) the effect of the failure to comply or contravention on consumers or users of the service or product provided or supplied by the person and on the person’s competitors,

(iii) the submissions of the Commission as to the appropriate amount of the penalty to be imposed, and

(iv) any excuse or explanation given by the person with respect to the failure to comply or contravention.

(8) If the Minister considers it necessary to do so for the purpose of giving full effect to a provision of the treaties governing the European Communities, or to an act, or provision of an act, adopted by an institution of those Communities, the Minister may, in regulations undersubsection (1),(2)or(3), provide—

(a) that if, after being convicted of an offence, a person continues to do the prohibited act, or to fail to do the required act, the person commits a further offence on each day or part of a day during which the act or failure continues, and

(b) that the person is to be liable on conviction for the further offence—

(i) if tried summarily, to a fine not exceeding€500, or

(ii) if tried on indictment, to a fine not exceeding€5,000.

However, if the regulations concerned provide for a person to be tried summarily for further offences that are alleged to have been committed on successive days, then, irrespective of anything to the contrary in the regulations concerned, the maximum fine that can be imposed for those offences under those regulations is€5,000.

(9)Section 2of theMinisters and Secretaries (Amendment) (No. 2) Act 1977does not apply to a power to make regulations for a purpose referred to in subsection(1),(2)or(3).

(10) In this section—

"European Communities" and "treaties governing the European Communities" have the same meanings as they have in theEuropean Communities Act 1972; and

"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 offence of which the body has been convicted was committed.]

46B. F131[Admissibility of expert evidence in proceedings under this Act and related enactments.

46B.—(1) In civil or criminal proceedings under this ActF132[, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,]or a related enactment, the opinion of any witness who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness’s evidence relates is admissible in evidence of matters that call for expertise or special knowledge relevant to the proceedings.

(2) A court that admits evidence undersubsection (1)may, if it is of the opinion that it is in the interests of justice to do so, direct that the use of the evidence is to be limited to specified purposes only.]

46C. F133[Power of court to order copies of certain documents to be given to juries in certain criminal proceedings.

46C.—In a trial on indictment of an offence under this Act or a related enactment, the trial judge may order copies of any of the following documents to be given to the jury in such form as the judge considers appropriate:

(a) any document admitted in evidence at the trial;

(b) the transcript of the opening speeches of counsel;

(c) any charts, diagrams, graphics, schedules or agreed summaries of evidence produced at the trial;

(d) the transcript of the whole or any part of the evidence given at the trial;

(e) the transcript of the closing speeches of counsel;

(f) the transcript of the trial judge’s charge to the jury.]

46D. F134[Presumptions to apply in civil and criminal proceedings under this Act and related enactments.

46D.—(1) The presumptions specified in this section apply in civil and criminal proceedings under this ActF135[, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,]and under the related enactments.

(2) A document purporting to have been created by a person is presumed, unless the contrary is shown, to have been created by the person. Any statement contained in the document is, unless the document expressly attributes the statement to some other person, presumed to have been made by that person.

(3) A document purporting to have been created by a person and addressed and sent to a second person is presumed, unless the contrary is shown, to have been created and sent by the person and received by the second person. Any statement contained in the document is, unless the contrary is shown, presumed—

(a) to have been made by the person unless the document expressly attributes the statement to a third person, and

(b) to have come to the notice of the second person.

(4) The author of a document retrieved from an electronic database is, unless the contrary is shown, presumed to be the person who ordinarily uses the database in the course of that person’s business.

(5) If an authorised officer who has, in the exercise of the officer’s powers under this Act, removed one or more documents from a place, gives evidence in proceedings under this Act or a related enactment that, to the best of the officer’s knowledge and belief, the material is the property of a specified person, the material is, unless the contrary is shown, presumed to be that person’s property.

(6) If, in accordance withsubsection (5), an authorised officer gives evidence that material is the property of a specified person and also gives evidence that, to the best of the officer’s knowledge and belief, the material relates to a particular trade, profession or other activity carried on by that person, the material is, unless the contrary is shown, presumed to be material that relates to such a trade, profession or activity.

(7) A reference in this section to a document is a reference to anything that is in writing.]

46E. F136[Admissibility of statements contained in certain documents.

46E.—(1) For the purposes of this section, a person is a competent person if the person is one who might reasonably be expected to have knowledge of the act or omission in question.

(2) A document that contains a statement by a competent person asserting that an act was done or was omitted to be done by a specified person is admissible in evidence in proceedings for an offence under this Act, or under a related enactment, that involves or relates to doing or omitting to do the act, but only if the document satisfies the conditions set out insubsection (3).

(3) The conditions referred to insubsection (2)are that the document—

(a) came into existence before proceedings for the offence were initiated, and

(b) was prepared otherwise than in response to an enquiry made or question put by a Commissioner, a member of the Commission’s staff, a member of the Garda Síochána or an authorised officer relative to any aspect of the proceedings.

(4) In estimating the weight (if any) to be attached to a statement contained in a document admitted in evidence in the proceedings, the court shall take into account the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement.

(5) If a document containing a statement is admitted in evidence under this section—

(a) evidence that, if the person making the statement had been called as a witness, would have been admissible as relevant to the person’s credibility as a witness is admissible for that purpose, and

(b) evidence may, with the leave of the court, be given of any matter that, had the person been called as a witness, could have been put in cross-examination as being relevant to the person’s credibility but of which evidence could not be adduced by the cross-examining party, and

(c) evidence tending to prove that the person, whether before or after making the statement, made (whether orally or not) a statement that is inconsistent with it is (if not already admissible by virtue of another enactment or a rule of common law) admissible for the purpose of showing that the person had contradicted himself or herself.

(6) This section does not affect the admissibility, in proceedings for an offence under this Act or a related enactment, of a document as evidence of matters stated in it, if the document would be admissible in the proceedings because of the operation of any other enactment or a rule of common law.]

PART 4 Transition Provisions

47. Transfer of property and liabilities of Director to Commission.

47.—(1) The following shall be transferred to the Commission on the establishment day—

(a) all property and rights held or enjoyed immediately before the establishment day by the Director, and

(b) all liabilities incurred by the Director that are not discharged before the establishment day,

and, accordingly, without any further conveyance, transfer or assignment—

(i) the property so held or enjoyed, both real and personal, vests on the establishment day in the Commission for all the estate, term or interest for which, immediately before the establishment day, was vested in the Director but subject to all trusts and equities affecting the property and capable of being performed,

(ii) the rights so held or enjoyed, are as on and from the establishment day, held and enjoyed by the Commission, and

(iii) the liabilities so incurred are, as on and from the establishment day, the liabilities of the Commission.

(2) All moneys transferred to the Commission by this section that, immediately before the establishment day, are standing in the name of the Director shall, upon the request of the Commission, be transferred into its name.

(3) Every right and liability transferred by this section to the Commission may, on or after the establishment day, be sued on, recovered or enforced by or against the Commission in its own name and it shall not be necessary for the Commission to give notice, to the person whose right or liability is transferred by this section, of the transfer.

48. Preservation of certain continuing contracts.

48.—(1) Every bond, guarantee or other security of a continuing nature made or given by or on behalf of the Director to any person or given by any person to and accepted by or on behalf of the Director shall continue in force on and after the establishment day.

(2) Every contract or agreement in writing made between the Director and any other person and in force but not fully executed and completed immediately before the establishment day shall continue in force on and after the establishment day.

(3) For the purposes of subsection (1) and (2), every bond, guarantee or other security and every contract or agreement in writing to which those paragraphs relate shall be read and have effect as if—

(a) the Commission were substituted for the Director as party to it, and

(b) the name of the Commission were substituted in it for that of the Director,

and shall be enforceable by or against the Commission.

49. Adaptation of certain documents.

49.—With effect from the establishment day—

(a) every document (including any certificate or licence) made, issued or granted in the exercise of a function transferred by section 9 shall, if and in so far as it was operative immediately before the establishment day, have effect on and after that day as if it had been granted or made by the Commission, and

(b) references to the Director in any Act (other than section 15(5)(a)) or in any other document (being an instrument made, issued or granted under a power or authority conferred by any Act) shall, in so far as it was operative immediately before the establishment day and where the context so allows, be read and have effect on and after that day as a reference to the Commission.

50. Continuation of certain matters by Commission.

50.—Anything commenced before the establishment day by or under the authority of the Director may, in so far as it relates to functions transferred by this Act, be carried on or completed on or after such day by the Commission.

51. Pending legal proceedings.

51.—F137[…] Where, immediately before the establishment day, any legal proceedings are pending in any court or tribunal and the Director is a party to the proceedings, the following shall have effect—

(a) the Commission shall be substituted for the Director as a party to the proceedings.

(b) the name of the Commission shall be substituted in the proceedings for that of the Director, and

(c) the proceedings shall not abate by reason of such substitution.

(2) F137[…]

PART 5 Electronic Communications Infrastructure Road Works and Sharing

52. Interpretation (Part 5).

52.—(1) In this Part, except where the context otherwise requires—

“Act of 2000” means Planning and Development Act, 2000;

F138[“authority”means NRA or a road authority, as the case may be;]

F139[“consent”means a consent granted by an authority undersection 53(3)or, in the case of emergency roadworks, deemed to be granted undersection 53(4);]

“duct” means a pipe or tube for the carriage of electronic communications infrastructure;

“electronic communications infrastructure” means any part of an electronic communications network;

“emergency roadworks” means roadworks necessary to eliminate or reduce danger or risk to persons or property;

“land” includes seashore, land covered with water (whether inland or coastal), foreshores and any interest or right in or over land;

“network operator” means any person who provides or operates an electronic communications network;

F140[“NRA”means National Roads Authority;]

F141[“physical infrastructure”means infrastructure which is capable of supporting electronic communications infrastructure including buildings, entries to buildings, wiring both inside and outside buildings, masts, antenna, poles, towers and other supporting constructions, ducts, conduits, manholes, cabinets and rights of way over land but does not include electronic communications infrastructure;]

“physical infrastructure provider” means a network operator or any other person which allows any part of its physical infrastructure to be used by any other network operator for the provision of electronic communications services;

“physical infrastructure sharing” means the sharing of the use of all physical infrastructure for the purpose of providing electronic communications services;

“planning authority” has the meaning assigned to it by the Act of 2000;

F142[“public road”means a national road, regional road or local road;

“road”,“national road”,“regional road”and“local road”have the meanings assigned to them, respectively, by the Roads Act 1993;

“road authority”has the meaning assigned to it bysection 2(inserted bysection 11of theRoads Act 2007) of theRoads Act 1993;

“roadworks”means the opening of a public road or any act or work that requires or causes the closing of a public road or part of a public road, including the opening or closing of a public road or part of a public road for the purposes of opening ducts, for the purpose of the establishment, extension, replacement, repair, removal or maintenance of works on electronic communications infrastructure.]

(2) In this Part a reference to the Commission shall be construed before the establishment day as a reference to the Director.

(3) For the avoidance of doubt this Part comes into operation on the passing of this Act.

53. F145[Opening of public road for establishment of underground electronic communications infrastructure.

53.—(1) A network operator shall not commence or carry out or cause to be commenced or carried out any roadworks unless—

(a) the operator—

(i) has obtained the prior written consent undersubsection (3)of—

(I) in the case of a national road, the NRA, or

(II) in the case of any regional or local road, the road authority, in whose functional area the operator proposes to carry out the roadworks,

or

(ii) is deemed to have been granted consent undersubsection (4), where the roadworks are emergency roadworksF146[or undersubsection (4A)where that subsection applies],

or

(b) the network operator or any person engaged by the network operator complies with any conditions contained in the consent.

(2) A network operator or a person engaged by the network operator who contravenessubsection (1)commits an offence and is liable—

(a) on summary conviction, to a fine not exceeding€5,000, or

(b) on conviction on indictment, to a fine not exceeding€1,000,000.

(3) Subject to this section and any regulations undersection 56(2)—

(a) the NRA, following consultation, not exceeding 21 days, with the road authority in whose functional area the national road exists, may grant consent to a network operator, upon application to it by the operator, to carry out roadworks on a national road, or

(b) a road authority may grant consent to a network operator, upon application to it by the operator, to carry out roadworks on a regional road or local road in the functional area of the road authority,

for the purposes of—

(i) establishing underground electronic communications infrastructure and any associated physical infrastructure,

(ii) extending the underground electronic communications network to parts of the road under which electronic communications infrastructure has not previously been placed by that network operator,

(iii) carrying out roadworks on underground electronic communications infrastructure, being maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure, or

(iv) installing electronic communications infrastructure in ducts, which are the responsibility of an authority, on public roads,

subject to any conditions contained in the consent.

(4) Subject to regulations made in respect of emergency roadworks undersection 56(2), a consent shall be deemed to be granted where the proposed roadworks are emergency roadworks, subject to any conditions the authority concerned may decide while the emergency roadworks are in progress or completed. The network operator shall inform the authority concerned as soon as is practicable in advance of the commencement of those roadworks.

F147[(4A)(a) Subject to this subsection—

(i) where an application is made to an authority by a network operator under this section to carry out roadworks and the authority fails to make a decision in respect of the application within the period of 4 months commencing on the date of receipt of the application, consent is deemed to be granted to the network operator on the day following the expiration of that period of 4 months to carry out the roadworks, and

(ii) where the authority has requested additional information from the applicant regarding the application and the authority fails to make a decision in respect of the application within the period of 4 months from the date on which it receives the applicant’s response to the request, consent shall be deemed to have been granted on the day following the expiration of that period of 4 months to carry out the roadworks.

(b) A deemed decision to grant consent under this subsection shall be subject to the conditions that—

(i) in advance of the commencement of those roadworks the network operator concerned informs the authority concerned, and

(ii) the network operator concerned complies with any conditions the authority concerned may decide while the roadworks are in progress or completed.

(c) This subsection does not apply in respect of an application where—

(i) within 4 months of receipt of the application, an authority serves notice on the applicant that for exceptional reasons stated in the notice it shall not decide on the application within a period of 4 months commencing on the date of receipt of the application,

(ii) the applicant is not in compliance with any other requirement imposed under law, or

(iii) the applicant gives to the authority in writing his or her consent, for stated reasons, to the extension of the period concerned for making a decision on the application, in which case the period for making the decision shall be extended for the period consented to by the applicant.]

(5) A consent may contain conditions. Any conditions contained in a consent—

(a) shall not discriminate unfairly between network operators, and

(b) shall be consistent with the need for the authority to carry out its functions under this Part and under the Roads Acts 1993 to 2007 and the Road Traffic Acts 1961 to 2007.

(6) Where an authority proposes to grant consent to a network operator undersubsection (3)or a consent is granted undersubsection (4)F148[or(4A)], the consent may contain conditions which, without prejudice to any other conditions it proposes to impose on the network operator, may—

(a) provide that network operators meet any losses, liabilities and costs suffered or incurred by the authority, under contractual arrangements with a third party, where such losses, liabilities and costs arise as a result of any act undertaken by the network operator, underF149[section 53(3), (4)or(4A)], in relation to electronic communications infrastructure,

(b) where ducts on national roads are provided and made available by an authority to a network operator, provide that the authority shall not be liable to that network operator for any loss or damage howsoever caused to the electronic communications infrastructure in those ducts, which is the property of the network operator except for such loss or damage caused by the wilful act or gross negligence of the authority or its agents acting on its behalf, and

(c) provide that the authority may have representatives present at work sites for the purpose of determining compliance with any conditions imposed in connection with any act undertaken by the network operator, under a consent issued underF149[section 53(3), (4)or(4A)], in relation to electronic communications infrastructure.

(7) An authority granting consent shall notify the network operator, in writing, of the reason for any conditions contained in the consent.

(8) The NRA, in the case of a national road, following consultation, not exceeding 21 days, with a road authority in whose functional area the national road exists, or a road authority, in the case of regional and local roads in its functional area, may, subject to any regulations undersection 56(2), impose charges on network operators—

(a) for the grant of consents to cover the administrative costs, including costs involved in monitoring compliance with consents, incurred by the authority under this section, and

(b) for reasonable costs it may incur in making good long term damage to a public road as a result of road openings carried out by the network operator.

(9) The NRA, may in the case of national roads, make a scheme which will allow for the NRA to impose charges for the use of ducts, which are provided and made available on those roads by an authority to a network operator, subject to the approval of the Minister for Transport following consultation with the Minister and the Minister for Finance.

(10) When considering an application for a consent, an authority shall have regard to—

(a) the existing and potential use and availability of space under the surface of the public road concerned, including—

(i) the requirements of the authority in the performance of its functions and responsibilities,

(ii) the course and depth of ducts to be laid by the applicant,

(iii) the existence of ducts in addition to those which are immediately required by any network operator, and

(iv) the existence of duct space in addition to that which is reasonably required by any network operator,

(b) the safe and efficient operation of the public road,

(c) road reconstruction, repair and maintenance costs that may arise as a consequence of the application,

(d) the protection of the environment and of amenities including residential amenities,

(e) the manner and timing of the reinstatement of the road,

(f) any scheme adopted undersubsection (11), and

(g) any contractual arrangements which an authority may have with a third party.

(11) The NRA, in the case of national roads, following consultation, not exceeding 60 days, with road authorities, or a road authority, in the case of regional and local roads in its functional area, may formulate and, after public consultation, adopt a scheme setting out its policy regarding—

(a) the use of underground road capacity, including the rationing of any particular underground spaces below roads,

(b) conditions (including restrictions and requirements) that may be imposed by it in relation to the grant of consents, either generally or with respect to specific areas or circumstances,

(c) refusal of consent, either generally or with respect to specific areas or circumstances,

(d) charges under this Part, and

(e) emergency roadworks.

(12) The Minister for Transport, in consultation with the Minister, may issue guidelines to be followed by an authority in relation to public consultation regarding a scheme drawn up by it undersubsection (11).

(13) An authority shall consult with the Commission before attaching a condition to a consent it proposes to grant requiring the applicant to lay additional ducts.

(14) Where the holder of a consent fails to comply with any condition attached to a consent, the authority which granted the consent may withdraw the consent.

(15) Where an authority proposes—

(a) to refuse to grant consent,

(b) to grant consent subject to conditions, or

(c) to withdraw a consent granted by it,

the authority shall notify the network operator concerned in writing of the proposal and shall include in the notification a statement of the reasons for the proposal and of the right of the network operator to make representations to the authority undersubsection (16).

(16) A network operator may, within 21 days of the receipt by the operator of a notification undersubsection (15), make representations to the authority concerned in relation to the proposal.

(17) Where an authority—

(a) after consideration of any representations made to it by a network operator undersubsection (16), or

(b) does not receive representations from the network operator concerned within the period specified insubsection (16),

decides—

(i) to refuse to grant consent,

(ii) to grant consent subject to conditions, or

(iii) to withdraw its consent,

the authority shall, not more than 21 days after the expiration of the period specified insubsection (16), notify the network operator in writing of its decision and shall include in the notification a statement of the reasons for the decision and of the right of the network operator to appeal the decision undersubsection (18).

(18) A network operator may, within 28 days of the receipt by the operator of a notification undersubsection (17), appeal to the High Court against the decision concerned and the Court may—

(a) confirm the decision,

(b) amend the decision, or

(c) direct the authority to grant the consent or refrain from withdrawing consent, as the case may be.

(19) A network operator shall be responsible for all costs incurred in the reinstatement of a road which the operator has opened for the purpose of—

(a) the establishment of underground electronic communications infrastructure, or

(b) maintenance, repair, replacement or the addition or removal of underground electronic communications infrastructure,

to a standard satisfactory to the authority concerned.

(20) The requirement to hold a licence under section 254 of the Act of 2000 in respect ofsubsection (1)(e)of that section does not apply where a network operator has been granted a consent.

(21) A network operator shall, on a request being made by an authority, provide among other things—

(a) such information as the authority may require in relation to the utilisation of underground electronic communications infrastructure owned or operated by the operator, and

(b) such access to underground electronic communications infrastructure owned or operated by the operator, as may be necessary to enable the authority to exercise its functions under this section.

(22) An authority may apply to the High Court for an order—

(a) by way of injunction, to prohibit any non-compliance, or

(b) by way ofmandamus, to direct any compliance,

with a requirement of this section or the conditions of consent. The Court may grant such order as it sees fit.

(23) This section is without prejudice tosection 101D(inserted by the DublinTransport Authority (Dissolution) Act 1987) of theRoad Traffic Act 1961(which relates to directions given by local authorities to persons carrying out roadworks).

(24) A summary offence undersubsection (2)may be prosecuted by—

(a) where the offence relates to a national road, the NRA or the road authority in whose functional area the offence is committed, or

(b) where the offence relates to a regional or local road, the road authority within whose functional area the offence is committed.]

54. Use of public road for establishment of electronic communications infrastructure overground.

54.—(1) Section 254(1) of the Act of 2000 is amended by inserting after paragraph (e) the following paragraph:

“(ee) overground electronic communications infrastructure and any associated physical infrastructure,”.

(2) A network operator shall be responsible for all costs incurred in the reinstatement of a road to a standard satisfactory to the road authority concerned arising from the opening of the road by the operator for the purpose of—

(a) the establishment of overground electronic communications infrastructure, or

(b) maintenance, repair, replacement or the addition or removal of overground electronic communications equipment.

(3) This section is without prejudice to section 101D of the Road Traffic Act, 1961.

55. F151[Cost apportionment for electronic communications infrastructure relocation due to road improvements.

55.—(1) Notwithstanding section 254(4) of the Act of 2000 and subject to this section, where an authority undertakes work for the purposes of improving a public road, it shall pay to a network operator all reasonable costs incurred by the operator in the relocation (except in relation to the relocation of ducts as referred to insubsection (2)) of its electronic communications infrastructure and any associated physical infrastructure necessitated by and directly attributable to that work.

(2) Where ducts, which are provided and made available on a national road by an authority for use by network operators, are required to be moved arising from any works undertaken by an authority to improve the road, then—

(a) the authority shall only cover the costs of relocating the ducts, necessitated and directly attributable to that work,

(b) the network operator or network operators using those ducts shall be responsible for any costs incurred by the operator in the relocation of its electronic communications infrastructure in those ducts necessitated by and directly attributable to that work, and

(c) the NRA shall provide reasonable notice of the roadworks to the network operator concerned.

(3) Where a network operator makes an application for consent undersection 53(3), the NRA shall, where it proposes to grant consent to the network operator in respect of the application, inform the network operator of the responsibility imposed on the network operator for relocation costs incurred by the network operator referred to insubsection (2)(b).

(4) Where electronic communications infrastructure and any associated physical infrastructure is replaced or improved by a network operator in the course of relocation due to road improvement, the authority concerned shall pay only the costs directly attributable to work done to electronic communications infrastructure and any associated physical infrastructure as a result of roadworks which would have been incurred if the electronic communications infrastructure and any associated physical infrastructure existing immediately before the road improvement had been relocated.

(5) A network operator shall be responsible to an authority for any costs incurred by the authority where the network operator fails to carry out the relocation of its electronic communications infrastructure in a safe, expeditious and efficient manner.

(6) Where an authority, on an application to it by a network operator to carry out roadworks over, along, on (under section 254 of the Act of 2000) or under (undersection 53) a public road, gives the operator notice that the road is due to be improved by the authority within the period of 2 years of the date from which the operator intends to carry out the works, the authority shall not be responsible for the cost of relocating electronic communications infrastructure or anything connected with the works where the road improvement proceeds within that period.

(7) Where a dispute or difference arises between a network operator and an authority in respect of the cost of the relocation of electronic communications infrastructure, the dispute or difference shall be determined by agreed conciliation procedures between both parties or, in default of such agreement, by arbitration under the Arbitration Acts 1954 to 1998.]

56. F153[Regulations and policy directions to authorities.

56.—(1) The Minister may, with the consent of the Minister for Transport, for the purposes ofsections 54(2)and55, make regulations to establish the basis for the calculation by a network operator of costs reasonably attributable to costs incurred by the network operator as a result of roadworks, and to establish an objective measure of works to be deemed to be improvements to electronic communications infrastructure for the purposes of this Part.

(2) The Minister for Transport may, with the consent of the Minister, for the purposes ofsection 53make regulations, in relation to—

(a) any conditions, restrictions or requirements to be made in a consent,

(b) the imposition of charges by authorities,

(c) anything to be contained in schemes undersection 53(11), and

(d) emergency roadworks.

(3) The Minister for Transport after consultation with the Minister, may, subject to any regulations under this section, issue policy directions to authorities in connection with the exercise of the powers of authorities under this Part.]

57. Physical infrastructure sharing by infrastructure providers.

57.—(1) This section applies to that part of the infrastructure of a physical infrastructure provider which is used to support electronic communications infrastructure and to no other part of the infrastructure.

(2) A network operator has the right to negotiate an agreement to share physical infrastructure with other infrastructure providers and may, upon the commencement of any negotiations, serve notice on the Commission of such negotiations.

(3) The Commission may, on its own initiative, or shall, if so requested by either party, specify the period within which negotiations on physical infrastructure sharing shall be completed.

(4) Where agreement is not reached within the period specified by the Commission under subsection (3), the Commission shall take such steps as are necessary to resolve the dispute in accordance with the procedures referred to in subsection (6).

(5) With regard to any intervention by the Commission referred to in subsection (3) or (4), the Commission may—

(a) having carried out a preliminary examination of the matter, decide not to intervene in those negotiations, or

(b) discontinue the intervention in those negotiations where the Commission considers that—

(i) the request for intervention is trivial or vexatious, or

(ii) the person making the request has not taken reasonable steps to reach an agreement on physical infrastructure sharing.

(6) The Commission shall resolve a dispute referred to in subsection (4) in accordance with procedures established and maintained by it and the procedures shall be made available, on a request being made for that purpose, to interested parties free of charge.

(7) In making a decision in relation to a dispute, the Commission may impose conditions for physical infrastructure sharing and such conditions may include, but not necessarily be limited to—

(a) conditions in respect of conformity with the relevant standards relating to establishment, operation, maintenance and repair of electronic communications infrastructure and physical infrastructure,

(b) compliance with essential requirements or the maintenance of the quality of electronic communications services or both, or

(c) rules for the apportionment of the costs of physical infrastructure sharing,

and the Commission shall notify, in writing, the network operator and physical infrastructure provider, as appropriate, of the reasons for such conditions.

(8) The procedures referred to in subsection (6) shall include provisions for public consultation during which all interested parties shall be given an opportunity to express their views.

(9) The Commission, in reaching a decision pursuant to the procedures referred to in subsection (6), shall take into account, inter alia—

(a) the interests of consumers of electronic communications services,

(b) any requirements imposed by an enactment or instrument made thereunder,

(c) the public interest, including traffic control and the protection of the environment and of amenities,

(d) the desirability of encouraging the sharing of electronic communications infrastructure,

(e) the provision of electronic communications services that are not available at the time of the making of the conditions,

(f) the availability of alternatives to the physical infrastructure sharing requested,

(g) the need to provide access to the market for electronic communications services to network operators,

(h) the need to maintain the security of electronic communications networks and the ability of providers of electronic communications services to use different types of electronic communications infrastructure and physical infrastructure,

(i) the nature of the request in relation to the resources available to the network operator or physical infrastructure provider concerned to meet that request,

(j) the promotion of competition between electronic communications services providers, and

(k) the need to maintain a universal service.

(10) In this section, “universal service” means the services which are made available, in accordance with the European Communities (Voice Telephony and Universal Service) Regulations 1999 (S.I. No. 71 of 1999) or any regulations amending or replacing those Regulations, to all consumers of electronic communications services independent of their geographical location.

57A. F154[Power of High Court to make compliance orders in respect of conditions imposed under section 57.

57A.—(1) If, in making a decision undersection 57, the Commission has imposed conditions for infrastructure sharing, and it appears to the Commission that a network operator or physical infrastructure provider to whom the decision relates is failing, or has failed, to comply with any of those conditions, the Commission may apply to the High Court to make a compliance order undersubsection (5). Such an application is to be by motion.

(2) However, the Commission may make an application undersubsection (1)only if—

(a) at least one month previously, it has served on the network operator or physical infrastructure provider concerned a notice in writing requiring the operator or provider to comply with a condition imposed by it undersection 57and has given the operator or provider an opportunity to make representations to it about the matter and to comply with the requirement, and

(b) the operator or provider has failed to comply with the requirement.

(3) The High Court may hear the application only if it is satisfied that the Commission has complied withsubsection (2)(a)and has served a copy of the application on the network operator or physical infrastructure provider concerned. On being served with a copy of the application, that network operator or physical infrastructure provider becomes the respondent to the application.

(4) 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.

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

(6) An application for a compliance order may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the non-compliance.

(7) On hearing the further application, the High Court may, having previously been satisfied that the respondent has not complied with a condition imposed undersection 57and having regard to the circumstances surrounding the non-compliance, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount can be more or less than the amount proposed by the Commission.

(8) The circumstances referred to insubsection (7)include (but are not limited to) the following:

(a) the duration of the non-compliance;

F155[(b) the effect of the non-compliance on other parties to the relevant decision, to end-users and to end-users of premium rate services.]

(c) the submission of the Commission with respect to what it considers to be the appropriate amount;

(d) any excuse or explanation for the non-compliance provided by the respondent.

(9) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.]

58. Lopping of trees.

58.—(1) Subject to this section, a network operator, or any person authorised by him or her in that behalf, may lop or cut any tree, shrub or hedge which obstructs or interferes with any physical infrastructure of the network operator.

(2) Before lopping or cutting any tree, shrub or hedge under this section, a network operator shall give to the landowner or occupier of the land on which the tree, shrub or hedge is standing, notice in writing of its intention to do so and, after the expiration of 28 days from the date of such service, the network operator may lop or cut any tree, shrub or hedge where the landowner or occupier has not already done so.

(3) A network operator may, upon the expiration of the period contained in the notice served by the operator under subsection (2), enter the land (with or without vehicles) at any reasonable time.

(4) Where a network operator carries out the cutting or lopping referred to in subsection (1), he or she shall do so in a manner which causes the least damage to property or the environment or amenities.

(5) Where an occupier or landowner lops or cuts any tree, shrub or hedge under subsection (2), the expense incurred by him or her in so doing shall be paid to him or her on demand by the network operator and the amount of such expenses shall be recoverable from the network operator, in default of agreement, as a simple contract debt in any court of competent jurisdiction.

(6) A network operator shall not carry out the cutting or lopping of trees in contravention of an order under section 205 (which relates to the preservation of trees, a group of trees or woodlands) of the Act of 2000.

(7) Subsection (1) does not apply to any obstruction of or interference with signals transmitted by means of the radio frequency spectrum.

F157[PART 6 Emergency Call Answering Service (ECAS) ] Annotations Amendments: F157 Inserted (15.05.2007) by Communications Regulation (Amendment) Act 2007 (22/2007), s. 16, S.I. No. 224 of 2007.

58A. F158[Interpretation: Part 6.

58A.—In this Part—

"ECAS" means an emergency call answering service operated under a contract entered into undersection 58B;

"ECAS contract" means a contract for the operation of an emergency call handling service;

"ECAS operator" means the person who operates an emergency call answering service in accordance with a contract entered into under section 58B;

"emergency call" means an electronic communication (such as a telephone call) that is forwarded from an undertaking to the ECAS operator for onward transmission to an emergency service, and includes a call that may not be a genuine one;

"emergency service" means the Garda Síochána, a fire brigade, ambulance service, the Irish Coast Guard or a civil emergency service.]

58B. F159[Power of Minister to enter into contract for the operation of emergency call answering service (ECAS).

58B.—(1) The Minister may enter into a contract with a person under which the person undertakes to operate an emergency call answering service for a specified period. The contract shall specify terms and conditions for the effective operation of the service and, in particular, shall—

(a) specify the maximum call handling fee that the operator is permitted to charge during the first 2 years of the operation of the contract, and

(b) specify that the Commission can increase or reduce the amount of that fee after conducting a review in accordance withsection 58D.

(2) On entering into a contract with a person for the operation of the service, the Minister shall, by notice published inIris Oifigiúil, designate the person as its operator.

(3) While the contract remains in force, the ECAS operator shall provide such information as the Minister or Commission requires to enable the Minister or Commission to perform their respective functions under this or any other enactment.

(4) The Minister may terminate a contract entered into under this section without paying compensation if it is proved that the ECAS operator has failed or is failing to comply with a term or condition of the contract or a requirement imposed under this section.

(5) The Minister may from time to time vary a contract entered into under this section, but, subject tosection 58D, only with the consent of the ECAS operator.]

58C. F160[Payment of ECAS call handling fees.