Competition (Amendment) Act 2022

PART 1 Preliminary and general

1. Short title, collective citation, construction and commencement

1. (1) This Act may be cited as the Competition (Amendment) Act 2022.

(2) Parts 2 and 3 and the Competition Acts 2002 to 2017 may be cited together as the Competition Acts 2002 to 2022.

(3) This Act shall come into operation on such day or days as the Minister for Enterprise, Trade and Employment may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definitions

2. In this Act—

“Act of 2014” means the Competition and Consumer Protection Act 2014;

“Principal Act” means the Competition Act 2002.

3. Transitional provisions

3. (1) Where a competent authority begins, on or after the date which section 13 comes into operation, an investigation into a suspected infringement of relevant competition law—

(a) where the investigation relates wholly to conduct, behaviour or any matter that took place before the 4th day of February 2021, the provisions of the Principal Act, the Act of 2014 and the Communications Regulation Act 2002, as the case may be, shall, notwithstanding the amendments made to those enactments by Parts 2, 3, 4 and 6, apply to the investigation as if those amendments had not been made, and

(b) where the investigation relates to conduct, behaviour or any matter that, in whole or in part, took place on or after the 4th day of February 2021, the provisions of the Principal Act, the Act of 2014 and the Communications Regulation Act 2002, as the case may be, shall apply to the investigation as amended by such provisions of Parts 2, 3, 4 and 6 as are in operation when the investigation takes place.

(2) Subject to subsection (1), proceedings (whether civil or criminal) or investigations taken or carried out by a competent authority, or any proceedings taken by the Director of Public Prosecutions, that—

(a) arise from, or are otherwise connected to, an investigation into a suspected infringement of relevant competition law, and

(b) are pending or open on the date on which section 13 comes into operation,

shall, where they are continued, be so continued (and any penalty, forfeiture or punishment in respect of such infringement may be imposed and carried out) as if the amendments made by Parts 2, 3, 4 and 6 had not been made.

(3) In this section—

“competent authority” has the meaning it has in the Principal Act;

“relevant competition law” means any of the following provisions:

(a) section 4 of the Principal Act;

(b) section 5 of the Principal Act;

(c) Article 101 of the Treaty on the Functioning of the European Union;

(d) Article 102 of the Treaty on the Functioning of the European Union.

PART 2 Amendments to Principal Act - relevant competition law

4. Amendment of section 3 of Principal Act

4. Section 3 of the Principal Act is amended—

(a) by the insertion of the following definitions in subsection (1):

“‘Act of 2002’ means the Communications Regulation Act 2002;

‘Act of 2014’ means the Competition and Consumer Protection Act 2014;

‘Article 16(1) periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘Article 16(2) periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘administrative sanctions’ means the following sanctions imposed by an adjudication officer under Part 2D—

(a) structural or behavioural remedies,

(b) administrative financial sanctions under section 15AA, or

(c) periodic penalty payments,

and ‘administrative sanctions proceedings’ shall be interpreted accordingly;

‘breach of a procedural requirement’ refers to any of the following contraventions by an undertaking, or by an association of undertakings, of an obligation or requirement imposed by a competent authority in connection with an investigation under Part 2C:

(a) obstructing or impeding the exercise by—

(i) an authorised officer, within the meaning of the Act of 2014, of a power referred to in section 37 or 37A of that Act, or

(ii) an authorised officer, within the meaning of the Act of 2002, of a power referred to in section 39 or 39A of that Act;

(b) breaking a seal affixed by an authorised officer, within the meaning of the Act of 2002 or the Act of 2014, as the case may be, or other accompanying person authorised or appointed by the competent authority, for the purpose of securing any document, record, data equipment, computer or place referred to in—

(i) section 37(2)(c) of the Act of 2014, or

(ii) section 39(3B)(c) of the Act of 2002;

(c) giving a false or misleading answer, failing to answer without reasonable excuse, refusing to provide a complete answer to, or otherwise failing to comply with, a requirement referred to in—

(i) section 37(2) of the Act of 2014, or

(ii) section 39(3B) of the Act of 2002;

(d) providing false, incomplete or misleading information, or failing, without reasonable excuse, to supply information, including books, documents and records, in the power or control of the undertaking or association of undertakings within the time limit specified by the competent authority—

(i) in response to an examination, requirement or notice referred to in paragraph (b), (c) or (d) of section 18(1) or section 37A of the Act of 2014, or

(ii) in response to a requirement under section 38A of the Act of 2002;

(e) failing without reasonable excuse to attend before the competent authority in response to—

(i) a summons referred to in section 18(1)(a) of the Act of 2014,

(ii) a requirement referred to in section 37A of the Act of 2014, or

(iii) a requirement under section 38A of the Act of 2002;

‘bid-rigging’ has the meaning assigned to it by section 4;

‘cartel’ means an agreement or concerted practice between two or more competing undertakings aimed at coordinating their competitive behaviour on the market or influencing the relevant parameters of competition through practices including the following:

(a) the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights;

(b) the allocation of production or sales quotas;

(c) the sharing of markets;

(d) the sharing of customers;

(e) bid-rigging;

(f) restrictions of imports or exports;

(g) anti-competitive actions against other competing undertakings;

‘commercially sensitive information’ means information the disclosure of which could reasonably be expected to—

(a) substantially and materially prejudice or harm the commercial, financial or industrial interests of the undertaking or person to which it relates,

(b) substantially prejudice or harm any other interests of a person in the conduct of the person’s business, profession or occupation, or

(c) substantially prejudice or harm the interests of the State or a public body (within the meaning of section 28N(5) );

‘Directive’ means Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018[^2] to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market;

‘enforcement proceedings’ means proceedings before an adjudication officer or court for the application of relevant competition law, but does not include proceedings—

(a) that are closed by the competent authority under this Act,

(b) in relation to which the competent authority has concluded that there are no grounds for further action, or

(c) in relation to which the European Commission has made a decision under Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002[^3] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty;

‘hearing requirement’ means a requirement imposed by an adjudication officer on an undertaking or association of undertakings under section 15V or 15W;

‘hearing requirement periodic penalty payment’ has the meaning assigned to it in section 15AD;

‘notified undertaking’ means an undertaking, or an association of undertakings, as the case may be, to which a prohibition notice has been issued;

‘periodic penalty payment’ has the meaning assigned to it by section 15AD and, where used without qualification, includes an Article 16(1) periodic penalty payment, an Article 16(2) periodic penalty payment and a hearing requirement periodic penalty payment;

‘prohibition notice’ has the meaning assigned to it by section 15H;

‘relevant competition law’ means any of the following provisions:

(a) section 4;

(b) section 5;

(c) Article 101 of the Treaty on the Functioning of the European Union;

(d) Article 102 of the Treaty on the Functioning of the European Union;

‘relevant Minister’ shall be interpreted in accordance with section 52(3);

‘relevant recipient’, in relation to a statement of objections, means an undertaking or an association of undertakings, as the case may be, on which the statement of objections has been served;

‘settlement submission’ means a submission by, or on behalf of, an undertaking to a competent authority—

(a) describing the undertaking’s acknowledgement of, or renouncing any right of the undertaking to dispute its participation in, an infringement of relevant competition law and its responsibility for that infringement, and

(b) made for the purpose of requesting that the competent authority make a referral, in relation to that infringement, referred to in section 15L(5)(d);

‘structural or behavioural remedy’ has the meaning assigned to it by section 15Z;”,

and

(b) by the substitution of the following definition for the definition of “authorised officer” in subsection (1):

“‘authorised officer’—

(a) in relation to the functions performed by the Competition and Consumer Protection Commission, has the same meaning as it has in the Act of 2014, and

(b) in relation to the functions performed by the Commission for Communications Regulation under this Act, has the same meaning it has in section 39 of the Act of 2002;”.

5. Amendment of section 4 of Principal Act

5. Section 4 of the Principal Act is amended, in subsection (1)—

(a) in paragraph (e), by the substitution of “subject of such contracts, or” for “subject of such contracts.”,

(b) by the insertion of the following paragraph after paragraph (e):

“(f) are concerned with bid-rigging.”,

and

(c) by the insertion of the following subsection after subsection (10):

“(11) In this section—

‘bid-rigging’ means the formation or continuation of an agreement or concerted practice between undertakings concerning or relating to their participation or non-participation in a relevant bidding process without informing the person requesting bids or tenders, and without prejudice to the generality of the foregoing includes the following:

(a) an agreement whereby one or more undertakings agree not to submit a bid or tender in a relevant bidding process, or agree to withdraw a bid or tender submitted as part of such a process;

(b) an agreement whereby one or more undertakings submit a bid or tender, as part of a relevant bidding process, on terms, or subject to conditions, arrived at in accordance with the agreement or concerted practice between such undertakings;

(c) collusive tendering;

‘relevant bidding process’ means a process by which bids or tenders to supply a product or service, to produce a product or to enter into a concession contract are requested.”.

6. Amendment of section 6 of Principal Act

6. Section 6 of the Principal Act is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) An undertaking that—

(a) enters into, or implements, an agreement,

(b) makes or implements a decision, or

(c) engages in a concerted practice,

that is prohibited by section 4(1) or by Article 101(1) of the Treaty on the Functioning of the European Union, and that—

(i) intentionally or recklessly acts to prevent, restrict or distort competition, or

(ii) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.”,

and

(b) in subsection (2)—

(i) in paragraph (b), by the substitution of “sales,” for “sales, or”,

(ii) in paragraph (c), by the substitution of “customers, or” for “customers,”, and

(iii) by the insertion of the following paragraph after paragraph (c):

“(d) engage in bid-rigging.”.

7. Amendment of section 7 of Principal Act

7. Section 7 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) An undertaking that acts in a manner prohibited by section 5(1) or by Article 102 of the Treaty on the Functioning of the European Union, and which—

(a) intentionally or recklessly acts to prevent, restrict or distort competition, or

(b) intentionally or recklessly makes omissions having the effect of preventing, restricting or distorting competition,

shall be guilty of an offence.”.

8. Limitation of certain prosecutions

8. The Principal Act is amended by the insertion of the following sections after section 7:

“Limitation of certain prosecutions

7A. An undertaking shall not be prosecuted for an offence under section 6 unless the offence—

(a) relates to agreements between undertakings, decisions by associations of undertakings or concerted practices, and

(b) involves—

(i) price fixing,

(ii) market sharing,

(iii) output restrictions,

(iv) bid-rigging,

(v) collective boycott agreements,

(vi) sharing information concerning future prices and future quantities of production, or

(vii) restricting the ability of undertakings to carry out research and development or to continue to use their own technology for future research and development.

Defences - administrative proceedings

7B. (1) In administrative proceedings in respect of a breach of section 4 or Article 101 of the Treaty on the Functioning of the European Union—

(a) it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to—

(i) directly or indirectly fix prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice,

(ii) engage in bid-rigging,

(iii) limit output or sales, or

(iv) share markets or customers,

has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State or within the common market, as the case may be, unless the defendant proves otherwise,

(b) it shall be a good defence to prove that the agreement, decision or concerted practice in question did not contravene that prohibition by virtue of section 4(2), and

(c) in which it is alleged that an agreement, decision or concerted practice contravened the prohibition in Article 101(1) of the Treaty on the Functioning of the European Union, it shall be a good defence to prove that—

(i) there was in force, at the material time, in respect of the particular agreement, decision or concerted practice an exemption granted by the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union,

(ii) at the material time the agreement, decision or concerted practice benefited from the terms of an exemption provided for by, or granted under, a regulation made by the Council or the European Commission pursuant to Article 101(3) of the Treaty on the Functioning of the European Union, or

(iii) the agreement, decision or concerted practice did not contravene that prohibition by virtue of Article 101(3) of the Treaty on the Functioning of the European Union.

(2) In administrative proceedings in respect of a breach of section 4 or 5 or of Article 101 or Article 102 of the Treaty on the Functioning of the European Union—

(a) it shall be a good defence to prove that the act concerned was done pursuant to a determination made or a direction given by a statutory body, and

(b) for the purpose of determining liability, any act done by an officer or an employee of an undertaking for the purposes of, or in connection with, the business or affairs of the undertaking shall be regarded as an act done by the undertaking.

(3) In this section—

‘administrative proceedings’ means proceedings, including proceedings before an adjudication officer or court, relating to any of the following:

(a) a prohibition notice;

(b) a statement of objections under section 15L;

(c) a referral to an adjudication officer under section 15M;

(d) administrative sanctions;

‘competing undertakings’ means undertakings that provide or are capable of providing goods or services to the same purchaser or purchasers.”.

9. Amendment of section 8 of Principal Act

9. Section 8 of the Principal Act is amended—

(a) in subsection (1), by the substitution of the following paragraph for paragraph (b):

“(b) on conviction on indictment—

(i) in the case of an undertaking that is not an individual, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, or

(ii) in the case of an individual, to a fine not exceeding whichever of the following amounts is the greater, namely, €50,000,000, or 20 per cent of the turnover of the individual in the financial year ending in the 12 months prior to the conviction or to imprisonment for a term not exceeding 10 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.”,

and

(b) in subsection (2), by the substitution of the following paragraph for paragraph (b):

“(b) on conviction on indictment, to a fine not exceeding the greater of €50,000,000, or 20 per cent of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction.”.

10. Amendment of section 9 of Principal Act

10. Section 9 of the Principal Act is amended—

(1) in subsection (1)—

(a) by the substitution of “who appears to the court or adjudication officer, as the case may be,” for “who appears to the court”, and

(b) in paragraph (b)—

(i) by the substitution of “explanation to the court or adjudication officer, as the case may be,” for “explanation to the court”, and

(ii) by the substitution of “assistance to the judge, adjudication officer or jury, as the case may be” for “assistance to the judge or, as the case may be, jury”.

(2) in subsection (2)—

(a) by the substitution of “a court or adjudication officer, as the case may be, may” for “a court may”, and

(b) by the substitution of “admissible in proceedings under this Act” for “admissible in proceedings for an offence under section 6 or 7”.

11. Amendment of section 12 of Principal Act

11. Section 12 of the Principal Act is amended, in subsection (1) by the substitution of “whether criminal or civil, including proceedings under Parts 2C to 2H” for “whether civil or criminal”.

12. Repeal of sections 13 and 14B of Principal Act

12. Sections 13 and 14B of the Principal Act are repealed.

13. Insertion of Parts 2C to 2H into Principal Act

13. The Principal Act is amended by the insertion of the following Parts after Part 2B:

“PART 2C

Investigations

Conduct of certain investigations

15G. (1) One or more authorised officers may or, where directed to do so by the competent authority, shall, carry out an investigation into any suspected infringement of relevant competition law.

(2) Subject to this Act and any regulations made under it and—

(a) in the case of the Competition and Consumer Protection Commission, the Consumer Protection Act 2007 and the Act of 2014 and any regulations made thereunder, and

(b) in the case of the Commission for Communications Regulation, the Act of 2002 and any regulations made thereunder,

the competent authority may regulate its procedures, by rules or otherwise, for conducting such investigations in such manner as it shall from time to time determine, including the scope and terms of the investigation to be carried out, whether as respects the matters or the period to which an investigation is to extend or otherwise, and may, in particular, limit the investigation to matters connected with particular circumstances or particular issues.

Prohibition notice

15H. (1) Where, at any time during an investigation under this Part, the competent authority suspects that there is a risk that, by virtue of conduct which may give rise to an infringement of relevant competition law, an undertaking or association of undertakings will cause serious and irreparable harm to competition, the competent authority may issue a notice in writing to the undertaking, or association of undertakings, concerned (in this Act referred to as a ‘prohibition notice’).

(2) A prohibition notice—

(a) shall state that the competent authority suspects that there is a risk that a notified undertaking will cause serious and irreparable harm to competition,

(b) shall state the reasons for that suspicion,

(c) shall specify the nature of the infringement of relevant competition law that the competent authority suspects has occurred or may be occurring,

(d) may, where the competent authority considers it appropriate to do so, specify directions as to measures to be taken, and a date before which, or a range of dates within which, they shall be taken, by the notified undertaking in order to—

(i) remedy any suspected infringement of relevant competition law to which the notice relates,

(ii) avoid or limit serious and irreparable harm to competition, or

(iii) otherwise comply with, or address matters specified in, the notice,

(e) shall prohibit the carrying on of the suspected infringement of relevant competition law to which the notice relates for such period as may be specified in the notice,

(f) shall specify a period within which the notified undertaking may make written submissions to the competent authority on the content of the prohibition notice, and

(g) shall be signed and dated by the competent authority.

(3) An undertaking to which a prohibition notice has been issued may, within such period as is specified in the prohibition notice, make written submissions to the competent authority on the content of the prohibition notice.

(4) As soon as is practicable after—

(a) receiving submissions under subsection (3), or

(b) where no submissions under subsection (3) are received, the expiry of the period within which such submissions may be made,

the competent authority shall issue a written notice to the notified undertaking—

(i) confirming that the measures specified in the prohibition notice are required to be put into effect by the notified undertaking in accordance with that notice, with or without modification, or

(ii) withdrawing the prohibition notice.

(5) Subject to subsections (6) and (7), and to any suspension or order made by the High Court under section 15AY, a prohibition notice shall take effect on such date or time as may be specified in the notice, and remain in effect until the earlier of the expiry of the period specified in the notice (including such period as stands extended under subsection (6)) or the date on which the effect of the prohibition notice is ended under section 15J.

(6) The competent authority may, where it considers it necessary to do so, extend a period referred to in a prohibition notice for such further period as it may specify by written notice issued to the notified undertaking, provided such notice is issued—

(a) in the case of the first such notice, before the expiry of the period specified in the prohibition notice, or

(b) where the period referred to in the prohibition notice stands extended by a notice under this subsection, before the expiry of the period as so extended.

(7) An appeal made against a prohibition notice shall not suspend its effect unless an order is made under section 15AY(14)(b).

(8) A notified undertaking shall not, for the period during which a prohibition notice has effect, carry on any suspected infringement of relevant competition law specified in the prohibition notice as being prohibited.

(9) The competent authority may, at any time during which a prohibition notice has effect, where it is of the opinion that the prohibition notice was issued in error or was incorrect in a material respect, issue written notice to a notified undertaking amending the prohibition notice, which notice shall specify the date from which such amendment shall have effect, and the prohibition notice shall have effect as if such amendment was included in the prohibition notice from the day specified in the second-mentioned notice.

(10) The competent authority shall, after issuing a prohibition notice to an undertaking or association of undertakings in accordance with this section, inform the European Competition Network (within the meaning of the Directive).

Appeal against prohibition notice

15I. A notified undertaking may appeal against a prohibition notice in accordance with section 15AY.

Ending of effect of prohibition notice

15J. (1) Subject to subsection (2) and section 15H(5), a prohibition notice shall cease to have effect on and from the earlier of the date on which—

(a) the competent authority issues a written notice to the notified undertaking stating that the prohibition notice is withdrawn, or

(b) the court under section 15AY or 15AZ, as the case may be, confirms the decision of an adjudication officer under section 15X on the matter to which the prohibition notice relates.

(2) Where a prohibition notice was issued in error, or subject to a material error of fact or law, the competent authority may issue a written notice to the notified undertaking stating that the prohibition notice is cancelled, and a prohibition notice in relation to which notice under this subsection is so issued shall be deemed never to have been issued.

Choice of enforcement mechanism

15K. (1) Where, at any time during an investigation under this Part, the competent authority forms a preliminary view that an infringement of relevant competition law may have occurred, or may be occurring, and forms the view that the matter is to be treated as a criminal matter, the competent authority may—

(a) refer the matter to the Director of Public Prosecutions for the purpose of considering commencing criminal proceedings under section 6 or 7, or

(b) bring summary proceedings under section 8(9).

(2) Where, at any stage during an investigation under this Part, the competent authority forms a preliminary view that an infringement of relevant competition law may have occurred, or may be occurring, and that the matter is not to be treated as a criminal matter, the competent authority shall—

(a) issue a statement of objections under section 15L to the undertaking or association of undertakings that, in its view, is responsible for such infringement, or

(b) seek relief against an undertaking by way of an action under section 14A.

(3) Where a matter is referred to the Director of Public Prosecutions under subsection (1)(a) and the Director of Public Prosecutions, in relation to that matter—

(a) commences criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings that are struck out, concluded, discontinued or otherwise determined other than by way of nolle prosequi, the competent authority shall not pursue the proceedings referred to in subsection (1)(b) or (6) against such undertaking or association of undertakings in respect of the same matter,

(b) commences criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings, which are determined by way of nolle prosequi, the competent authority may pursue, against such undertaking or association of undertakings in respect of the same matter, either—

(i) proceedings referred to in subsection (1)(b), or

(ii) one or more of the proceedings referred to in subsection (6),

or

(c) decides not to commence criminal proceedings in respect of an offence under section 6 or 7 against an undertaking or association of undertakings, the competent authority may pursue any one of the proceedings referred to in subsections (1)(b) or (6) against such undertaking or association of undertakings in respect of the same matter.

(4) Where the competent authority initiates proceedings referred to in subsection (6) against an undertaking or association of undertakings and the proceedings are not withdrawn before a decision under section 15X is made, the competent authority may not subsequently pursue any of the proceedings referred to in subsection (1), or paragraphs (b) to (d) of subsection (6), against the same undertaking or association of undertakings in respect of the same matter where—

(a) the adjudication officer finds that there has been no infringement of relevant competition law by the undertaking or association of undertakings,

(b) the adjudication officer finds that there has been an infringement of relevant competition law by the undertaking or association of undertakings and no administrative sanctions have been imposed,

(c) the adjudication officer finds that there has been an infringement of relevant competition law by an undertaking or association of undertakings and administrative sanctions have been imposed, or

(d) the proceedings have been otherwise determined, including by operation of commitments entered into under section 15AE or structural or behavioural remedies imposed under section 15X in accordance with section 15Z.

(5) For the avoidance of doubt, a preliminary view under subsections (1) or (2) may be formed in relation to conduct that is no longer ongoing.

(6) The proceedings referred to in this subsection are proceedings relating to the following:

(a) administrative financial sanctions under section 15AA;

(b) commitments in accordance with section 15AE;

(c) structural or behavioural remedies under section 15Z;

(d) section 14A or 15C.

Statement of objections

15L. (1) A statement of objections shall be in writing and shall—

(a) inform the relevant recipient that the competent authority has formed a preliminary view that—

(i) an infringement of relevant competition law may have occurred or may be occurring,

(ii) a breach of a procedural requirement may have occurred or may be occurring,

(iii) the undertaking or association of undertakings concerned has failed to comply with commitments entered into under section 15AE,

(iv) the undertaking or association of undertakings concerned has failed to comply with a structural or behavioural remedy imposed under section 15X in accordance with section 15Z, or

(v) the undertaking or association of undertakings concerned has failed to comply with a prohibition notice issued under section 15H,

(b) set out the competent authority’s reasons for forming that preliminary view,

(c) provide the relevant recipient with an explanation of how it is responsible, in the preliminary view of the competent authority, for the matter referred to in paragraph (a) in sufficient detail to allow the relevant recipient to fully respond to the statement of objections in accordance with subsection (2), and

(d) inform the relevant recipient of its right to make submissions under subsection (3), and the period within which that right may be exercised.

(2) The competent authority shall, as soon as is practicable after issuing the statement of objections, give the relevant recipient a copy of, or access to, any material relied upon by the competent authority for the purpose of issuing the statement of objections, subject to such redactions as the competent authority may consider necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason.

(3) Subject to subsection (4), a relevant recipient may, within such period as is specified in the statement of objections, make written submissions to the competent authority on the content of the statement of objections.

(4) Notwithstanding the period specified in the statement of objections in accordance with subsection (1)(d), the competent authority may, where it is appropriate to do so in the circumstances of the case, extend the period within which written submissions may be made and shall notify the relevant recipient in writing of the revised period.

(5) Where a statement of objections relates wholly to the matter referred to in subsection (1)(a)(i), the competent authority may, as it considers appropriate and as soon as is practicable after receiving written submissions, if any, on the content of the statement of objections from the relevant recipient under subsection (3) or, where no such submissions are received, as soon as is practicable after the expiry of the period within which such submissions may be made under this section—

(a) carry out further analysis or otherwise continue the investigation into the matter in question,

(b) close the investigation and not take any further action in respect of the matter,

(c) enter into commitments with the relevant recipient under section 15AE,

(d) agree, at any time prior to a decision being made by an adjudication officer under section 15X, a settlement with the relevant recipient concerned and make a referral to an adjudication officer in accordance with section 15M for an order on consent under section 15X(8), or

(e) determine that it should prepare a full investigation report in accordance with subsection (9) for the purpose of considering whether to make a referral to an adjudication officer in accordance with section 15M.

(6) Where a statement of objections relates wholly or partly to a matter referred to in subsection (1)(a)(ii) to (v), the competent authority may, as it considers appropriate and as soon as is practicable after receiving written submissions, if any, on the content of the statement of objections from the relevant recipient under subsection (3) or, where no such submissions are received, as soon as is practicable after the expiry of the period within which such submissions may be made under this section—

(a) not take any further action in respect of the matter, or

(b) determine that it should prepare a full investigation report in accordance with subsection (9) for the purpose of considering whether to make a referral to an adjudication officer in accordance with section 15M.

(7) (a) Where the competent authority, having issued a statement of objections, identifies new or different points of fact or law, or new evidence, having a material impact on its analysis set out in the statement of objections, the competent authority shall issue a supplementary statement of objections to the relevant recipient.

(b) The supplementary statement of objections referred to in paragraph (a) shall—

(i) summarise the new or different points of fact or law or new evidence that have been identified by the competent authority and the material impact of such points of fact or law or such evidence on the competent authority’s analysis, and

(ii) inform the relevant recipient of its right to make written submissions under paragraph (c), and specify the period within which that right may be exercised.

(c) Subject to paragraph (d), the relevant recipient to which a supplementary statement of objections is provided may, within such period as is specified in the supplementary statement of objections, make written submissions to the competent authority on the content of the supplementary statement of objections.

(d) Notwithstanding the period specified in the supplementary statement of objections in accordance with paragraph (b)(ii), the competent authority may, where it is appropriate to do so in the circumstances of the case, extend the period within which the relevant recipient may make written submissions under paragraph (c) and shall notify the relevant recipient in writing of the revised period.

(8) Where a competent authority agrees a settlement with an undertaking or association of undertakings and makes a referral referred to in subsection (5)(d), the competent authority shall—

(a) prepare a simplified investigation report containing—

(i) a summary of the facts of the case,

(ii) the allegations against the undertaking or association of undertakings concerned,

(iii) the specific administrative financial sanction or structural or behavioural remedy which the competent authority is seeking to be imposed by the adjudication officer, and

(iv) a statement that the competent authority and the undertaking or association of undertakings concerned consent to the imposition of the administrative financial sanction or structural or behavioural remedy specified in the simplified investigation report,

(b) give a copy of the simplified investigation report referred to in paragraph (a) to the undertaking or association of undertakings concerned, and

(c) refer the matter to an adjudication officer in accordance with section 15M(1) for an order on consent under section 15X(8).

(9) Where a competent authority makes a referral to an adjudication officer in accordance with section 15M, the competent authority shall—

(a) prepare a full investigation report containing—

(i) a detailed description of the relevant facts of the case,

(ii) the allegations against the undertaking or association of undertakings concerned,

(iii) an outline of the facts and evidence on which the competent authority is relying for the purpose of referring the matter to an adjudication officer under section 15M,

(iv) a summary of any submissions made by the undertaking or association of undertakings concerned to the competent authority during the investigation, including in response to the statement of objections or a supplementary statement of objections, and

(v) any other information that the competent authority considers would be relevant for the adjudication officer to make a decision under section 15X(2),

(b) as soon as is practicable after preparing the full investigation report, give the undertaking or association of undertakings—

(i) a copy of the full investigation report, and

(ii) a copy of, or access to, any material (other than material that has already been provided to the undertaking) relied upon by the competent authority for the purpose of referring the matter to an adjudication officer under section 15M, subject to such redactions as the competent authority considers necessary and appropriate in order to protect commercially sensitive information, protect the rights of the parties or any other person, or for any other good and sufficient reason,

and

(c) if the competent authority forms an opinion in accordance with section 15M(2)(a), refer the matter to an adjudication officer under section 15M(2).

(10) The competent authority shall not make any recommendation, or express any opinion, in a full investigation report prepared under subsection (9), as to the amount of any administrative financial sanction which may be imposed under section 15X in the event that an adjudication officer is satisfied that the undertaking or association of undertakings has committed an infringement or a breach of procedural requirement or has failed to comply with commitments or with a structural or behavioural remedy.

(11) The competent authority may provide a copy of the full investigation report prepared under subsection (9), and any such submissions, to such other persons as the competent authority considers appropriate.

(12) A person who receives—

(a) a full investigation report and any submissions under subsection (9), or

(b) copies of material under subsection (2),

shall not, without the prior authorisation of the competent authority, disclose the existence or the content of the material or report or submissions to any other person.

(13) A person who contravenes subsection (12) shall be guilty of an offence and shall be liable on summary conviction to a class A fine.

(14) The undertaking or association of undertakings which has been provided with the material specified in subsection (9)(b)(ii) may appeal against the decision of the competent authority to impose redactions under that subparagraph—

(a) within 12 working days of the undertaking or association of undertakings receiving a copy of the notice specified in section 15U(1), and

(b) by application to the adjudication officer to whom the matter has been referred under subsection (9)(c), provided that the adjudication officer may at any point refer the appeal to the Chief Adjudication Officer for re-assignment to and determination by another adjudication officer.

Referral

15M. (1) Where the competent authority has agreed a settlement in accordance with section 15L(5)(d) with the undertaking or association of undertakings concerned as to the imposition of an administrative financial sanction or structural or behavioural remedy, and has prepared a simplified investigation report under section 15L, the competent authority shall—

(a) refer the matter to an adjudication officer for an order on consent under section 15X(8), and

(b) furnish the adjudication officer with a copy of the simplified investigation report.

(2) Where, having prepared a full investigation report under section 15L(9), the competent authority—

(a) forms a provisional opinion that—

(i) an undertaking or association of undertakings has infringed or is infringing relevant competition law,

(ii) there has been a breach of a procedural requirement by an undertaking or association of undertakings,

(iii) an undertaking or association of undertakings has failed to comply with commitments entered into under section 15AE,

(iv) an undertaking or association of undertakings has failed to comply with a structural or behavioural remedy ordered under section 15X in accordance with section 15Z, or

(v) an undertaking or association of undertakings has failed to comply with a prohibition notice,

and

(b) has elected to bring proceedings under this section or Part 2D in respect of any matter referred to in paragraph (a),

the competent authority shall refer the matter for decision by an adjudication officer under section 15X.

(3) Where the competent authority refers a matter for decision to an adjudication officer under subsection (2), the competent authority shall furnish each such adjudication officer with—

(a) the statement of objections, and any supplementary statement of objections, issued by the competent authority under section 15L,

(b) the full investigation report prepared by the competent authority under section 15L,

(c) a copy of all material relied upon by the competent authority in referring the matter for decision, and

(d) any submissions made by the undertaking or association of undertakings concerned to the competent authority during the investigation, including in response to the statement of objections issued under section 15L.

(4) Notwithstanding subsection (2), the competent authority may, at any time after making a referral under this section, exercise its power under section 15AE to enter into legally binding commitments with the undertaking or association of undertakings.

(5) The relevant Minister may prescribe—

(a) the procedure for making a referral under this section,

(b) the procedure for withdrawing a referral under section 15N, and

(c) the procedure for making an order on consent under section 15X(8).

(6) The competent authority may, subject to this Act and to any regulations made under subsection (5), make rules detailing—

(a) the procedure for making a referral under this section,

(b) the procedure for withdrawing a referral under section 15N, and

(c) the procedure for making an order on consent under section 15X(8).

Withdrawal of referral

15N. (1) A referral under section 15M may be withdrawn by the competent authority while it is being or before it has been considered by the adjudication officer.

(2) Where a referral is withdrawn under this section, the adjudication officer shall—

(a) notify the undertaking or association of undertakings of the withdrawal, and

(b) take no further action in relation to the matter.

PART 2D

Adjudication officers

Appointment of adjudication officers

15O. (1) A competent authority, as a national administrative competition authority, shall nominate, for appointment by the relevant Minister under this section, persons (referred to in this Act as ‘adjudication officers’) to make decisions on behalf of the competent authority under section 15X and otherwise to exercise functions under this Act.

(2) The relevant Minister may make regulations providing—

(a) for the creation of a panel of adjudication officers to exercise the functions of adjudication officers in relation to relevant competition law in respect of the Commission, the Commission for Communications Regulation, or both,

(b) for the requirements and qualifications necessary for appointment under subsection (1), and

(c) for the relevant Minister to appoint—

(i) a Chief Adjudication Officer in respect of either or both competent authorities, or

(ii) a Chief Adjudication Officer in respect of each respective competent authority.

(3) The relevant Minister shall appoint a person nominated by a competent authority under this section unless the relevant Minister—

(a) is not satisfied that the nominated person meets the requirements and qualifications prescribed by the relevant Minister, or

(b) considers that the nominated person does not have the independence necessary to be appointed as an adjudication officer.

Independence of adjudication officers

15P. (1) (a) Adjudication officers shall be independent in the performance of their functions.

(b) The competent authority shall put in place measures to ensure—

(i) the independence of adjudication officers in the performance of their functions, and

(ii) the effective implementation of and adherence to any regulations made under section 15Q.

(c) Where an adjudication officer believes that performing any of his or her functions as an adjudication officer would—

(i) potentially create a conflict of interest, the adjudication officer shall recuse himself or herself from the functions or proceedings in question and shall notify the competent authority and the undertakings concerned of the recusal, or

(ii) give rise to the perception of any potential conflict of interest, the adjudication officer shall disclose that fact to the competent authority and to the undertakings concerned in the matter with which the adjudication officer is dealing, and shall, having regard to any submissions received from the undertakings concerned or from the competent authority, consider whether it is necessary to recuse himself or herself from the functions or proceedings in question.

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

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

(I) guidelines under section 15AF, or

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

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

(B) referrals under section 15M,

(C) the choice of enforcement mechanism under section 15K,

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

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

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

(iii) Where a decision of a competent authority referred to in subparagraph (i) is made as a college, or in any other manner whereby a decision of a competent authority is treated as having been made by all members of the competent authority, a member of the competent authority who recused himself or herself from the process of making that decision shall, for the purposes of subparagraph (i), be deemed not to have been involved in that decision, provided that the recusal took place at a point and in a manner which does not compromise the independence of the member of a competent authority as an adjudication officer.

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

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

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

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

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

Regulations for appointment and independence of adjudication officers

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

(a) prescribing requirements upon the competent authority and adjudication officers to implement sections 15O and 15P, and

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

(i) section 15G,

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

(iii) the Act of 2002.

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

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

(i) members of the competent authority,

(ii) employees of the competent authority,

(iii) persons who are legally qualified,

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

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

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

(b) provide for—

(i) the term of appointment (including the term of appointment of a Chief Adjudication Officer), which term shall be specified in the instrument of appointment, and may be—

(I) fixed and non-renewable, or

(II) fixed and renewable based upon objective, competence-based and independently-assessed criteria referred to in paragraph (a),

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

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

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

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

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

(iv) the resignation from office of adjudication officers,

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

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

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

(III) the competent authority has been notified of an adjudication officer’s conflict of interest in more than one matter which conflict of interest is assessed to be likely to continue,

without prejudice to the automatic removal from office as an adjudication officer of an employee of the competent authority upon cessation of that employment,

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

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

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

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

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

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

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

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

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

(iii) for arrangements for oversight by specified members or employees of the competent authority for compliance by the competent authority with section 15P and the regulations made thereunder,

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

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

(vi) for the structure of the competent authority,

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

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

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

(i) adjudication officers, and

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

and

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

Appointment of assistants to adjudication officers

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

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

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

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

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

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

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

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

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

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

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

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

Effect of appointment of an adjudication officer upon terms of employment or contract

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

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

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

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

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

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

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

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

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

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

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

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

Division of adjudication officers

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

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

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

Action by adjudication officer after receiving referral

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

(a) a copy of this section,

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

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

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

(a) exercise any of the powers under section 15W;

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

(c) request further information from any other person, and may, for the purposes of doing so, provide, with due regard for the protection of commercially sensitive information, a copy of the full investigation report prepared under section 15L to the person;

(d) conduct an oral hearing.

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

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

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

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

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

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

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

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

Admissibility of evidence and rules for oral hearings

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

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

(a) summon a witness (including an authorised officer) to appear to give evidence, or to produce before the adjudication officer any books, documents or records in such person’s power or control, or to do both, and

(b) require the witness to attend an oral hearing from day to day unless excused, or released from further attendance, by the adjudication officer.

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

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

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

(4) The oath to be taken by a witness for the purposes of this section is an oath that the evidence the witness will give shall be true.

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

(6) Without prejudice to subsections (1) to (5), the adjudication officer has the same powers, rights and privileges as a judge of the High Court when hearing civil proceedings on the occasion of that action including with respect to:

(a) the attendance and examination of witnesses on oath or otherwise (including witnesses who are outside the State);

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

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

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

(a) an authorised officer or other representative of the competent authority or any other person, with leave of the adjudication officer, shall present the evidence in support of the referral, and

(b) the testimony of witnesses attending the oral hearing shall be given in accordance with this section and any regulations made thereunder.

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

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

(10) (a) An oral hearing before an adjudication officer shall be held in public unless the adjudication officer is satisfied that, given the existence of special circumstances (which shall include whether information given or likely to be given in evidence is commercially sensitive information), the hearing or part of the hearing should be held otherwise than in public.

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

(11) The payment or reimbursement of, or of any part of, the reasonable travelling and subsistence expenses of a witness required to attend an oral hearing, is at the discretion of the adjudication officer and such expenses shall be discharged by the competent authority.

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

(13) Nothing in this section or section 15W compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession, power or control.

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

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

(c) Rules made under paragraph (b) shall not have effect until they are published.

Powers and offences

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

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

(b) direct a party to adduce evidence or produce books, documents and records in its power or control, and

(c) direct a party to clarify any issue of fact that an adjudication officer may deem necessary.

(2) An answer to a question put to a person in response to a requirement under subsection (1)(a) is not admissible as evidence against the person in criminal proceedings, other than proceedings for perjury in circumstances where the contested response or information was provided on oath.

(3) A summons issued by the adjudication officer for the purpose of an oral hearing under section 15V may be substituted for and is the equivalent of any formal process capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of records.

(4) A person the subject of a direction under this section shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in this section as a witness appearing in proceedings before the Court.

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

(a) to whom notice is given under section 15V does not comply with a requirement referred to in that section,

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

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

(d) while attending as a witness before an adjudication officer at an oral hearing under section 15V refuses to—

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

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

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

or

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

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

(a) by order require the person to attend before the adjudication officer or to do the thing that the person refused to do, as the case may be, within a period to be specified by the Court, and

(b) make such interim or interlocutory orders as it considers necessary for that purpose.

(7) A person is guilty of an offence if, having been or in anticipation of being required to produce a book, document or record under subsection (1)(b) or under section 15V(2)(a), he or she intentionally or recklessly destroys or otherwise disposes of, falsifies or conceals such book, document or record or causes or permits its destruction, disposal, falsification or concealment.

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

(a) the information or evidence is false or misleading in a material respect, and

(b) the person knows, or ought reasonably to know, that it is false or misleading in a material respect.

(9) A person who provides any information to another person, knowing the information to be false or misleading in a material respect, or who recklessly provides any information to another person which is false or misleading in a material respect, knowing the information is to be used for the purpose of providing information to an adjudication officer in connection with any of his or her functions under this Act, is guilty of an offence.

(10) A person guilty of an offence under subsection (5), (7), (8) or (9) is liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000 or both.

(11) Proceedings may be brought for an offence under this section regardless of whether or not an order has been made, or has been applied for, under subsection (6).

(12) (a) An adjudication officer may refer to the Director of Public Prosecutions a suspected breach of a hearing requirement under this section or section 15V without the necessity for an investigation by the competent authority.

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

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

(14) In this section, ‘Court’ means the High Court.

Decision by the adjudication officer

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

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

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

(vii) Without prejudice to the reckoning of time under subparagraph (vi) of this subsection, a decision under subsection (2) shall not have effect, be questioned under section 15AY or be the subject of a notice under section 15Y until a decision under both subsection (2)(a) and, where applicable, subsection (2)(b) has been made.

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

(a) the matters outlined in sections 15AB and 15AC, and

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

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

(a) the decision made,

(b) the date of the decision,

(c) the reasons for the decision,

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

(e) the right of appeal provided for under section 15AY where a final decision under subsection (2) has been made,

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

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

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

(6) The relevant Minister may make regulations setting out detailed requirements to implement this section and otherwise for the conduct of proceedings before an adjudication officer in any matter referred to an adjudication officer for decision (in this section referred to as ‘proceedings’), having regard to the need for efficiency and the rights of the defence, including but not limited to all or any of the following:

(a) the form and manner of provision of a statement of objections or supplementary statement of objections prepared by the competent authority in accordance with section 15L;

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

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

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

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

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

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

(h) procedures for the separation of proceedings;

(i) the publication on a website maintained by or on behalf of the competent authority of information and documents provided, for the purposes of proceedings, by a party to a proceeding or by a person other than a party to proceedings;

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

(k) any consequential, supplementary or transitional provisions as appear to the Minister to be necessary or expedient for the purpose of giving effect to the regulations.

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

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

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

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

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

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

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

Notice of decision

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

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

(b) The notice under paragraph (a) shall—

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

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

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

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

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

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

(a) to protect commercially sensitive information,

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

(c) for any other good and sufficient reason.

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

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

(6) A person who fails to comply with a request to provide information under section 15X(3)(b)(iv), or a person who contravenes subsection (5), shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine not exceeding €250,000, or both.

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

Structural or behavioural remedies

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

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