Reform history

F1["Regulation of 2003" means Regulation (EC) No. 1/2003 of 16 December 2002^8on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;]

F1["relevant competition law" has the same meaning as it has in the Act of 2002;]

### Chapter 1

(c) to carry out an investigation, F2[on its own initiative, in response to a complaint made to it by any person, or to assist with an investigation conducted by the European Commission or a competition authority of another Member State in accordance with the Regulation of 2003,] into any suspected breach of—

F2[(6) The Commission may delegate the performance of any of its functions to any member of the Commission, to any member of its staff duly authorised in that behalf by the Commission or to any authorised officer duly authorised in that behalf by the Commission.]

F3[(ca) the referral of a matter to an adjudication officer for decision under section 15M of the Act of 2002,]

(13) A member of the Commission who has served 2 terms of office shall not be eligible for reappointment to the Commission, and any period during which a person serves as a member of the Commission by virtue of *subsection (1)* F4[,*(3)(b)*or*(5)(a)]* shall, for the purposes of this subsection, be deemed not to be a term of office.

F6[(5) A direction given by the Minister under*subsection (1)*shall not be given to, nor apply to—

(a) adjudication officers appointed under section 15O of the Act of 2002, or

(b) assistants to adjudication officers appointed under section 15R of the Act of 2002.]

**24.** (1) F7[Notwithstanding*F8[section 25*and*section 25A*, and section 15AV of the Act of 2002]], information, which in the opinion of the Commission may relate to the commission of an offence which is not an offence under the relevant statutory provisions, may be disclosed by a member of the staff of the Commission authorised by the Commission to act in that behalf to—

**25.** F9[(1) A person shall not, unless authorised by the competent authority, or by a member of the staff of the competent authority duly authorised in that behalf so to do, or required by law, disclose confidential information obtained by him or her in his or her capacity, or while performing duties as—

(a) a member of the competent authority,

(b) a member of the staff of the competent authority,

(c) an authorised officer,

(d) a person engaged by the competent authority in any other capacity, or

(e) an adjudication officer appointed under the Act of 2002.

(2)*Subsection (1)*shall not apply to—

(a) a communication made by a member of the competent authority, a member of the staff of the competent authority, an authorised officer, or an adjudication officer in the performance of any of his or her functions under this Act, being a communication the making of which was necessary for the performance by the member, member of the staff of the competent authority, authorised officer or adjudication officer of any such function, or

(b) the disclosure by a member of the competent authority, a member of the staff of the competent authority, an authorised officer or an adjudication officer to any person or body mentioned in*paragraphs (a)*to*(q)*of*section 24(1)*of information which, in the opinion of the member, member of the staff of the competent authority, authorised officer or adjudication officer, may relate to the commission of an offence (whether an offence under this Act or not).]

(a) to the F9[competent authority], or

F9[(b) by or on behalf of a competent authority to another competent authority or to the Minister.]

(a) information that is expressed by the F9[competent authority] to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) proposals of a commercial nature or tenders submitted to the F9[competent authority] by contractors, consultants or any other person.

F10[(6) Nothing in this section shall prevent the disclosure by a person of material in accordance with section 15AX of the Act of 2002.

(7) In this section, "competent authority" has the meaning it has in the Act of 2002.]

##### 25A. **F11[Professional secrecy under Digital Services Regulation**

**25A.**(1) Notwithstanding*section 25*and without prejudice to the exchange and use of information referred to in Chapter IV of the Digital Services Regulation, an authorised officer, a member of staff of the Commission, a member of the Commission, a person engaged by the Commission in any other capacity or any other person involved shall not contravene Article 84 of the Regulation.

(2) A person who, without reasonable excuse, contravenes*subsection (1)*shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.

(3) In this section, "Digital Services Regulation" means Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022^5on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).]

**F12[27.**(1) Subject to*subsection (2)*, the chairperson of the Commission or a member of the Commission shall, at the request in writing of a Committee, attend before it to give account for the general administration of the Commission.

(2) The chairperson of the Commission or a member of the Commission shall not be required to give account before a Committee in relation to—

(a) any matter which is or has been, or which the Commission has reason to think may in the future be, the subject of proceedings before an adjudication officer or before a court or tribunal in the State,

(b) any matter specified in*paragraphs (a)*to*(d)*of*section 10(7)*,

(c) a determination in relation to a merger or acquisition under section 21(2) of the Act of 2002, or

(d) the powers and functions of adjudication officers.

(3) Where the chairperson or a member of the Commission is of the opinion that a matter in respect of which he or she is requested to give an account before a committee is a matter to which*subsection (2)*applies, he or she shall inform the Committee of that opinion and the reasons for the opinion and, unless the information is conveyed to the committee at a time when he or she is before it, the information shall be so conveyed in writing.

(4) Where a chairperson or member of the Commission has informed a Committee of his or her opinion in accordance with*subsection (3)*and the Committee does not withdraw the requirement referred to in*subsection (2)*in so far as it relates to a matter the subject of that opinion—

(a) the chairperson or member may, not later than 21 days after being informed by the Committee of its decision not to do so, apply to the High Court in a summary manner for determination of the question whether the matter is one to which*subsection (2)*applies, or

(5) Pending the determination of an application under*subsection (4)*, the chairperson or member of the Commission shall not attend before the Committee to give account for the matter the subject of the application.

(6) If the High Court determines that*subsection (2)*applies to the matter concerned, the Committee shall withdraw the requirement referred to in*subsection (2)*, but if the High Court determines that*subsection (2)*does not apply, the chairperson or member of the Commission shall attend before the Committee and give account for the matter.

(7) In the performance of his or her duties under this section, the chairperson of the Commission or a member of the Commission shall not question or express an opinion on—

(a) the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy, or

(b) the carrying out of the functions of an adjudication officer.

(8) In this section—

“adjudication officer”means an adjudication officer appointed in respect of the Commission in accordance with the Act of 2002;

“Committee”means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in*section 26*or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a sub-Committee of such a Committee.]

(2) The disclosure of information may be compelled, or possession of it taken, pursuant to this Act, notwithstanding that it is apprehended that the information is privileged legal material provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by F13[the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002] of the issue as to whether the information is privileged legal material.

shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under *subsection (4)* in relation to the matter concerned) apply to F13[the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002] for a determination as to whether the information is privileged legal material and an application under this section shall be made within 30 days after the disclosure or the taking of possession.

(4) A person who, in the circumstances referred to in *subsection (2)*, is compelled to disclose information, or from whose possession information is taken, pursuant to this Act, may apply to F13[the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002] for a determination as to whether the information is privileged legal material.

(5) Pending the making of a final determination of an application under *subsection (3)* or *(4)*, F13[the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002] may give such interim or interlocutory directions as F13[the court, or the adjudication officer as the case may be,] considers appropriate including, without prejudice to the generality of the foregoing, directions as to—

(a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by F13[the court, or the adjudication officer as the case may be,]

(b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that F13[the court, or the adjudication officer as the case may be,] considers to be appropriate for the purpose of—

(ii) preparing a report for F13[the court, or the adjudication officer as the case may be,] with a view to assisting or facilitating F13[the court, or the adjudication officer as the case may be,] in the making by F13[the court, or the adjudication officer as the case may be,] of its determination as to whether the information is privileged legal material.

(6) An application under *subsection (3)*, *(4)* or *(5)* shall be by motion and may, if F13[the High Court or, in respect of proceedings under Parts 2C, 2D and 2G of the Act of 2002, an adjudication officer appointed under the Act of 2002] directs, be heard otherwise than in public.

### Chapter 2

F14[“records”includes, in addition to records in writing—

(b) films, tapes or other devices in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form,

(c) photographs, and

(d) any form of data or digital communications,

and a reference to a copy of records includes, in the case of records falling within*paragraph (a)*only, a transcript of the sounds or signals embodied therein, in the case of records falling within*paragraph (b)*, a still reproduction of the images embodied therein and, in the case of records falling within both of those paragraphs, such a transcript and such a still reproduction;]

**37.** F15[(1) For the purpose of—

(a) obtaining any information which may be required in relation to a matter under investigation under the Act of 2002 or Article 101 or 102 of the Treaty on the Functioning of the European Union,

(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 under*subsection (3)*or*(3A)*authorising him or her to exercise one or more specified powers under*subsection (2)*, exercise that power or those powers,]

F15[(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 in*subparagraph (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;]

F15[(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 anyplace referred to in*paragraph (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;]

(g) to require a person mentioned in *paragraph (d)* to give to the authorised officer any other information which the officer may reasonably require in regard to the activity referred to in *F15[paragraph (a)*;]

F16[(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.]

(3) F15[Subject to*subsection (3A)*, 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 F15[an offence under the Act of 2002, or an infringement, whether or not the infringement is criminal in nature, of relevant competition law, within the meaning of the Act of 2002,] is to be found in any place, the judge may issue a warrant authorising an authorised officer (accompanied by such other authorised officers or members of An Garda Síochána or both as provided for in *subsection (5)* of *section 35*) 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 under this section.

F16[(3A) 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 in*subsection (1)(d)*—

(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 in*subsection (1)(d)*, 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 under*subsection (2)*in relation to any place or land other than that referred to in*subparagraph (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 of2003, and

(ii) where the warrant would, if issued, authorise the authorised officer to exercise powers under*subsection (2)*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 by such other authorised officers or members of the Garda Síochána or both as provided for in*subsection (5)*of*section 35*) 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 under this section.]

##### 37A. **F17[Requests for information relating to investigations**

**37A.**(1) In the course of investigating a suspected infringement of relevant competition law, the Commission, or a person to whom functions relating to such an investigation have been delegated under*section 10(6)*, may in writing require a person or undertaking under investigation to provide the Commission or delegate, as the case may be, with information that is connected to, and reasonably necessary for, the purposes of the investigation.

(2) A requirement under*subsection (1)*—

(a) shall specify a period of time 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 requirement is made, and

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

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

(4) A person who—

(a) provides the Commission or delegate, 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 under*subsection (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.]

### Chapter 3

‘Council Regulation’ means Council Regulation (EC) No. 139/2004 of 20 January 2004^1 on the control of concentrations between undertakings;”,

(f) if provision is required to be made for the first-mentioned person and another person in any consolidated accounts compiled in accordance with the Seventh Council Directive 83/349/EEC of 13 June 1983^2, that other person;

##### 86. **Res judicata**