Legalize / Ireland / Act

Competition (Amendment) Act 2022

Type Act

Publication 2022-06-29

State In force

Source Irish Statute Book

articles 43

Reform history JSON API

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

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

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

(e) to cease a specified conduct or practice;

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

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

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

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

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

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

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

(5) A decision to impose a structural or behavioural remedy shall not take effect unless the decision is confirmed by the High Court under section 15AY or 15AZ.

Administrative financial sanctions

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

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

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

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

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

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

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

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

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

(b) if—

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

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

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

and

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

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

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

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

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

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

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

Calculation of administrative financial sanctions

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

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

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

(i) the duration of the infringement,

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

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

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

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

(2) Where an administrative financial sanction is imposed on an association of undertakings under section 15AA in respect of an infringement of relevant competition law under Parts 2C to 2G, and such sanction is imposed not only on the association of undertakings but also on its members, the turnover of the members on which an administrative financial sanction is imposed shall not be taken into account when calculating the administrative financial sanction to be imposed on the association.

(3) (a) Where—

(i) an administrative financial sanction is imposed on an association of undertakings under section 15AA in respect of an infringement of relevant competition law under Parts 2C to 2G, and the infringement relates to the activities of its members, and

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

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

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

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

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

(6) The provisions of sections 15AY or 15AZ shall apply, mutatis mutandis, to a decision or requirement of an adjudication officer under subsections (4) or (5).

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

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

(b) it—

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

(ii) actively distanced itself from the infringement before the investigation under Part 2C commenced.

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

(i) immunity from administrative financial sanctions, or

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

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

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

Maximum amount of administrative financial sanctions

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

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

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

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

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

Periodic penalty payments

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

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

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

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

(iv) comply with a prohibition notice;

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

(vi) comply with structural or behavioural remedies.

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

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

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

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

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

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

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

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

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

(ii) specify the information referred to in subparagraphs (i) and (iii) of paragraph (a).

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

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

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

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

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

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

(b) in respect of the matters set out in subsection (1)(b), an adjudication officer may make a decision under section 15X on his or her own motion.

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

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

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

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

(a) the imposition of administrative financial sanctions for—

(i) a breach of a procedural requirement,

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

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

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

(b) the imposition of a structural or behavioural remedy under section 15X in accordance with section 15Z, or

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

(8) In this section—

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

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

‘hearing requirement periodic penalty payment’ means a periodic penalty payment imposed under subsection (1)(b)(i).

Commitments

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

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

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

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

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

(3) Where the competent authority—

(a) has complied with the requirements of subsection (4), and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(9) The competent authority may, notwithstanding subsection (7)—

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

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

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

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

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

Guidelines

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

(a) the conduct of oral hearings,

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

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

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

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

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

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

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

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

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

Conduct of investigations

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

PART 2E

Leniency programme

Definitions (Part 2E)

15AH. In this Part—

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

‘competent prosecuting authority’ means—

(a) in respect of civil proceedings under this Act, including proceedings under Parts 2C to 2H, the competent authority,

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

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

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

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

‘marker’ has the meaning it has in section 15AM.

Immunity from administrative financial sanctions

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

(a) disclosing their participation in a cartel, and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(vi) conclude cooperation agreements that will—

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

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

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

Reduction of administrative financial sanctions

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

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

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

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

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

(a) disclose its participation in the cartel,

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

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

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

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

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

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

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

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

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

General conditions for leniency

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

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

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

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

(I) the name and address of the applicant,

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

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

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

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

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

(iii) making current directors, managers and other members of staff available for interviews with the competent authority and making reasonable efforts to make former directors, managers and other members of staff available for interviews with the competent authority;

(iv) not destroying, falsifying or concealing relevant information or evidence;

(v) unless and to the extent otherwise explicitly authorised by the competent authority, not disclosing the fact of, or any of the content of, its leniency statement before the competent authority has issued a statement of objections in the enforcement proceedings before it,

and

(i) destroyed, falsified or concealed evidence which falls within the scope of the application, or

(ii) disclosed, directly or indirectly, the fact of, or any of the content of the application it is contemplating except to other competent authorities or any competition authorities of member states or the European Commission or competition authorities of third countries.

(2) The competent authority shall, where it is requested to do so by the applicant, communicate a decision in relation to a leniency statement under section 15AI or 15AJ to the applicant in writing.

(3) An undertaking that fails to satisfy all of the requirements specified in subsection (1) shall not be eligible for leniency under section 15AI or 15AJ.

(4) Where a competent authority accedes to an application for leniency under section 15AI or 15AJ, such grant of leniency may be withdrawn where evidence is subsequently obtained by the competent authority which establishes that the undertaking concerned did not satisfy each of the conditions for leniency specified in subsection (1).

(5) Where a competent authority deems that an applicant for leniency does not satisfy each of the conditions for leniency laid down in subsection (1), or withdraws a grant of leniency pursuant to subsection (4), a competent authority may initiate whatever proceedings against the undertaking concerned as the competent authority deems fit.

(6) An undertaking, and the servants or agents of an undertaking, shall be guilty of an offence where, in the context of an application for immunity from administrative financial sanctions under section 15AI, or reduction of administrative financial sanctions under section 15AJ, or a summary application for leniency under section 15AN, it intentionally or negligently—

(a) provides the competent authority with information that is false or misleading in a material respect, or

(b) fails to comply with the obligation in subsection (1)(b)(iv).

(7) An undertaking or other person guilty of an offence under this section is liable—

(a) on summary conviction—

(i) in the case of an undertaking that is not an individual, to a class A fine, or

(ii) in the case of an individual, to a class A fine and to imprisonment for a term not exceeding 6 months, or to both,

(b) on conviction on indictment—

(i) in the case of an undertaking that is not an individual, to a fine not exceeding whichever of the following amounts is the greater, €250,000 or 10 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 €250,000 or 10 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 5 years or to both such fine (that is to say a fine not exceeding the greater of the foregoing monetary amounts) and such imprisonment.

(8) The competent authority may publish, on a website maintained by it or on its behalf, guidance as to applications for leniency including the procedures applicable to and appropriate scales for decisions by a competent authority to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings that cooperate with the investigation of a competent authority in respect of any infringement of relevant competition law.

(9) The relevant Minister may make regulations setting out further details or conditions for the grant of leniency from administrative financial sanction.

Form of leniency statements

15AL. (1) An undertaking may apply for leniency by submitting to the competent authority, whether orally or in writing, a statement (in this Part referred to as a ‘leniency statement’) describing the role the applicant had in, and knowledge the applicant had regarding, a cartel.

(2) The precise form of applications for leniency shall be set out in guidelines published by the competent authorities, on a website maintained by them or on their behalf.

(3) A leniency statement, whether or not it has been withdrawn, shall not be admissible in evidence in proceedings under this Act or otherwise, save in accordance with section 15AM(4).

Markers for applications for leniency from administrative financial sanctions

15AM. (1) Protection (in this section referred to as a ‘marker’) may be afforded to an applicant for leniency under section 15AI or 15AJ by, and at the discretion of, the competent authority for a specified period whereby the applicant is given time to gather necessary information and evidence in order to meet the relevant evidential threshold for leniency, in consequence of which the applicant retains his or her place in the queue of applicants for leniency determined by valid chronological application.

(2) (a) An undertaking that intends to make an application for immunity may apply to a competent authority for a marker.

(b) To be eligible to secure a marker, either when the application for a marker is made or within a period granted by the competent authority upon request of the applicant (which period may be extended by the competent authority), the applicant shall provide the competent authority with its name and address, the information referred to in section 15AK(1)(b)(i), an outline of the facts which led to the application for a marker, and any other information reasonably required by the competent authority.

(c) Any information and evidence provided by the applicant within the period specified in accordance with paragraph (b) is deemed to have been submitted at the time of the initial request.

(3) The competent authorities shall, jointly or separately, publish, on a website maintained by them or on their behalf, guidance on the procedures which shall apply to applications for markers.

(4) Where the competent authority refuses to grant a marker, and where immunity from administrative financial sanctions is refused and an administrative financial sanction is imposed, the applicant may later rely on the contents of its application for leniency in proceedings under this Act (whether criminal or civil, including proceedings under Parts 2C to 2H) or in an appeal under section 15AY and the contents of any such application shall be provided to the High Court on any application under section 15AZ.

(5) For the avoidance of doubt, an undertaking wishing to make an application for the reduction of administrative financial sanctions under section 15AJ may also apply to the competent authority for a marker.

Summary applications for leniency

15AN. (1) A competent authority shall accept summary applications for leniency (in this section referred to as a ‘summary application’) from applicants that have applied to the European Commission for leniency, either by applying for a marker or by submitting a full application in relation to the same alleged cartel.

(2) A summary application shall only be accepted by a competent authority provided that the application to the European Commission covers more than 3 member states as affected territories.

(3) With a view to enabling the competent authority to determine an application for leniency, a summary application shall consist of a short description of each of the following:

(a) the name and address of the applicant;

(b) the names of other parties to the alleged cartel;

(d) the duration and the nature of the alleged cartel conduct;

(e) the Member States in which the evidence of the alleged cartel is likely to be located;

(f) information on any past or possible future leniency statements made to any other competition authorities or competition authorities of third countries in relation to the alleged cartel.

(4) A summary application shall be accompanied by a copy of the application made to the European Commission and any written confirmation of same received.

(5) The relevant Minister may prescribe rules and procedures governing summary applications for leniency, including procedures and decisions concerning upgrading summary applications to full applications, and guidelines for the exercise of the discretion of the competent authority under this section, and any such regulations shall address the following matters:

(a) the precise form of summary applications for leniency;

(b) the grant of summary application markers;

(c) the process for verifying whether another application or other applications has or have been received in relation to the same cartel and for informing an applicant that it is the first applicant for a marker;

(d) consultation between the competent authority and the European Commission in connection with summary applications for leniency;

(e) the power of the competent authority to request further information in the context of summary applications for leniency;

(f) the power of the competent authority to give directions to undertakings concerning submissions, the provision of information and related matters in the context of summary applications for leniency;

(g) the circumstances in which the competent authority may direct that a summary applicant for leniency may be required to submit a full application and the power of the competent authority to give directions in that regard.

Relationship between applications for immunity from administrative financial sanctions and sanctions on natural persons

15AO. (1) Where the conditions in subsection (2) are met, the following individuals are fully protected from any sanctions that may be imposed in administrative and non-criminal judicial proceedings, in relation to their involvement in the cartel covered by an application for immunity from administrative financial sanctions for infringements of relevant competition law:

(a) current and former directors of the undertaking concerned;

(b) managers of the undertaking concerned;

(2) The conditions referred to in subsection (1) are as follows:

(a) that the application for immunity from administrative financial sanctions of the undertaking to the relevant competent authority fulfils the requirements in accordance with paragraphs (a) and (b) of section 15AI(5);

(b) that the individuals referred to in paragraphs (a), (b) and (c) of subsection (1) actively cooperate in this respect with the competent authority concerned;

(c) that the application for immunity from administrative financial sanctions of the undertaking predates the time when the individuals referred to in paragraphs (a), (b) and (c) of subsection (1) were made aware by the competent authority of the proceedings leading to the imposition of sanctions referred to in subsection (1).

(3) The individuals referred to in paragraphs (a), (b) and (c) of subsection (1) shall not be subject to criminal prosecution in relation to their involvement in the cartel covered by the application for immunity from administrative financial sanctions, for infringements of sections 4 or 5, if they meet the conditions set out in guidelines made under subsection (4) and actively cooperate with the competent prosecuting authority.

(4) The competent prosecuting authority or the competent authority, as the case may be, may publish guidelines on the cooperation of individuals with the relevant authorities required under this section.

(5) Where the condition of cooperation with the competent authority, in accordance with subsection (3), is not fulfilled, the competent prosecuting authority may proceed with the investigation, including prosecution of the individual or individuals concerned.

(6) Where the competent authority has opened an investigation into a cartel following a leniency statement received under this Part, and a competition authority or prosecuting authority of another member state is also seised in its jurisdiction of any aspect of the same cartel, the competent authority shall ensure contacts between its authorised officers and the competition authority or prosecuting authority of the other Member State.

(7) The competent authorities may publish, on a website maintained by them or on their behalf, guidance as to the procedures applicable to and appropriate scales for decisions by a competent authority in respect of the operation of immunity from administrative financial sanctions in circumstances where another Member State is investigating in its jurisdiction any aspect of the same cartel.

Leniency programme for other infringements

15AP. (1) The competent authority may put in place a leniency programme, whether as part of a leniency programme under section 15AI or as a separate programme, for infringements of relevant competition law other than cartels to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings in exchange for—

(a) disclosing that they have infringed relevant competition law other than by participating in a cartel, and

(b) voluntarily cooperating with an investigation by the competent authority concerning the application of relevant competition law.

(2) (a) The relevant Minister may prescribe the applicable procedures, conditions, appropriate scales, and factors relevant to decisions by a competent authority under subsection (1) to grant immunity from administrative sanctions to or to reduce administrative financial sanctions on undertakings.

(b) The competent authority may publish, on a website maintained by it or on its behalf, guidance as to the matters set out at paragraph (a).

PART 2F

Mutual assistance

Cooperation with other competition authorities

15AQ. (1) A competent authority may request a competition authority of another Member State to carry out an inspection, interview or other fact-finding measure on its behalf.

(2) A competent authority may, on the request of a competition authority of another Member State, or the European Commission (each of which is in this Part referred to as a ‘requesting competition authority’), carry out an inspection, interview or other fact-finding measure on behalf of the requesting competition authority pursuant to—

(a) this Act,

(b) Article 22 of Regulation (EC) No 1/2003 of 16 December 2002[^5] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty,

(d) section 38A, 39 or 39A of the Act of 2002, or

(e) any other relevant power conferred by law on the competent authority.

(3) The competent authority and the competition authority of another Member State may exchange and use in evidence any material, including confidential information, for the purpose of this section, subject to the following limitations:

(a) information provided to the competent authority by the competition authority concerned pursuant to this section shall only be used in evidence for the purpose of applying Article 101 or Article 102 of the Treaty on the Functioning of the European Union and in connection with the subject-matter for which it was collected by the competition authority concerned, save that the information may also be used for the purpose of applying section 4 or 5 in the same proceedings;

(b) information provided to the competent authority by the competition authority concerned pursuant to this section may be used in evidence to impose sanctions on a natural person where—

(i) the law of the Member State providing the information provides for sanctions of a similar kind in relation to an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union, or

(ii) the information has been collected in a way that affords the same level of protection of the rights of defence of natural persons as is provided for under the law of the State but, in these circumstances, the information provided to the competent authority may not be used in subsequent proceedings before the courts to impose custodial sanctions on a natural person.

(4) (a) A competent authority may appoint as an authorised officer under section 35 of the Act of 2014 or section 39 of the Act of 2002 any person authorised to be so appointed by a competition authority of another Member State.

(b) To the extent to which a competent authority may confer any of its powers and functions under this Act, the Act of 2014 or the Act of 2002 on an authorised officer, it may so confer same upon an authorised officer appointed in accordance with this subsection.

(c) An authorised officer appointed under section 35 of the Act of 2014 or section 39 of the Act of 2002 in accordance with this subsection shall be accountable to the competent authority for the conduct of their duties in the same manner as an authorised officer not authorised or appointed by the competition authority of another Member State.

(d) The relevant Minister may provide by regulations, and (subject to any such regulations) the competent authorities may provide by rules and guidelines, for the appointment of authorised officers in accordance with this subsection.

(5) Where the European Commission conducts an inspection in the State under Article 20 or 21 of Regulation (EC) No. 1/2003 of 16 December 2002[^6] on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, the competent authority shall, where requested to do so by the European Commission, assist the European Commission in carrying out such an inspection.

Requests for the notification of preliminary objections and other documents

15AR. (1) A competent authority may request a competition authority of another Member State to notify an undertaking or association of undertakings, on behalf of the competent authority, of—

(a) any preliminary objections that the undertaking or association of undertakings has infringed relevant competition law, or any decisions made by an adjudication officer under section 15X that an infringement of relevant competition law has occurred or is occurring,

(b) any procedural act adopted in the context of enforcement proceedings which the undertaking or association of undertakings concerned is entitled to be notified of under the law of the State, and

(c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments, related to the application of relevant competition law insofar as the documents concern an infringement by the undertaking or association of undertakings referred by the competent authority.

(2) A competent authority shall, without undue delay following receipt of a request from a competition authority of another Member State and subject to section 15AT(16), notify an undertaking or association of undertakings, on behalf of the requesting competition authority, of—

(a) any complaint that the undertaking or association of undertakings has infringed Article 101 or Article 102 of the Treaty on the Functioning of the European Union or any decisions made by the referring competition authority that an infringement of Article 101 or Article 102 of the Treaty on the Functioning of the European Union has taken place,

(b) any procedural act adopted in the context of enforcement proceedings of which the undertaking or association of undertakings concerned would be entitled to be notified under the law of the State,

(c) any relevant document, including documents which relate to the enforcement of decisions imposing administrative fines or periodic penalty payments, related to the application of Article 101 or Article 102 of the Treaty on the Functioning of the European Union insofar as the documents concern an infringement by the undertaking or association of undertakings which has been referred by the referring competition authority.

(3) This section is without prejudice to any other form of notification made by a requesting competition authority in accordance with the law applicable in the Member State concerned.

Requests for the enforcement of decisions imposing administrative financial sanctions or periodic penalty payments

15AS. (1) A competent authority may request a competition authority of another Member State to enforce a decision of an adjudication officer under section 15X which has become final.

(2) A competent authority shall, without undue delay following receipt of a request of a competition authority in another Member State, take steps to enforce a final decision of that authority imposing administrative fines or periodic penalty payments adopted in accordance with Article 13 or 16 of the Directive.

(3) Subsection (2) shall apply only to the extent that the requesting competition authority has made reasonable efforts to ascertain that the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable does not have sufficient assets in the Member State of the requesting competition authority to enable recovery of such administrative fine or periodic penalty.

(4) In circumstances other than those set out in subsections (2) and (3) a competent authority may, subject to a request from a requesting competition authority, take steps to enforce a decision of that requesting competition authority to impose administrative fines or periodic penalty payments adopted in accordance with Articles 13 or 16 of the Directive including in circumstances where the undertaking or association of undertakings subject to such decision is not established in the Member State of the requesting competition authority.

(5) Section 15AT(3)(e) shall not apply to a request under subsection (4).

(6) Subsections (2) and (4) shall apply only to decisions of the requesting competition authority that are not, or are no longer, capable of being appealed.

(7) (a) A competent authority to which a request has been made under subsection (2) or (4) shall, subject to section 15AT(16), on notice to the undertaking or undertakings concerned, apply to the High Court for confirmation that the competent authority may execute that request.

(b) Section 15AZ shall apply, mutatis mutandis, to an application for confirmation under this subsection, save that—

(i) subsections (3), (4) and (8) of that section shall not apply, and subsection (8) of this section shall apply, and

(ii) subsection (7) of that section shall not apply, and the Court shall make no order as to costs.

(c) Rules of court may make provision for applications for confirmation under this section, and for the expeditious hearing thereof and any such rules shall be in accordance with the procedure set out in section 15AZ.

(8) In an application under subsection (7) for confirmation that a competent authority may execute a request to enforce the decision of a competition authority of another Member State, the High Court shall confirm that the competent authority may execute the decision unless—

(a) it considers that the request does not comply with the requirements of section 15AT, or

(b) the execution of the request would be manifestly contrary to the public policy of the State.

(9) Applications for the enforcement of a decision of a competition authority of another Member State under subsections (2) and (4) shall be made within a period of 6 years from the date of the decision sought to be enforced.

General principles of cooperation

15AT. (1) The requests referred to in sections 15AR and 15AS shall be executed by means of a notice which shall be accompanied by a copy of the preliminary objections, procedural act or other act, or a copy of the decision imposing administrative financial sanctions or periodic penalty payments to be notified or enforced, as the case may be.

(2) The notice referred to in subsection (1) shall indicate:

(a) the name and known address of the undertaking or association of undertakings concerned, and any other relevant information for the identification of the undertaking or association of undertakings concerned;

(b) a summary of the relevant facts and circumstances;

(c) a summary of the attached copy of the preliminary objections, procedural act or other act, or the attached copy of the decision imposing administrative fines or periodic penalty payments to be notified or enforced;

(d) the name, address and other contact details of the competent authority or of the requesting competition authority;

(e) the period within which notification or enforcement should be effected, such as statutory deadlines or limitation periods.

(3) A request under section 15AS shall, in addition to the requirements set out in subsection (2), provide the following:

(a) information about the decision permitting enforcement in the Member State of the requesting competition authority;

(b) the date when the decision became final;

(c) in the case of an administrative financial sanction imposed by a competent authority, the amount of the administrative financial sanction;

(d) in the case of an administrative fine imposed by the requesting competition authority, the amount of the administrative fine;

(e) the amount of the periodic penalty payment;

(f) information showing the reasonable efforts made by the requesting competition authority to enforce the decision in its own territory.

(4) The competent authority shall take all necessary measures for the execution of the request under this section, subject to subsection (16) and section 15AS(8).

(5) The notice referred to in subsection (1) shall be in one of the official languages of the State, unless the competent authority and the requesting competition authority agree on a case-by-case basis that it may be in another official language of the European Union.

(6) When required by the competent authority, the requesting competition authority shall provide a translation of the matter to be notified or the decision permitting enforcement of the administrative fine or periodic penalty payment into one of the official languages of the State.

(7) Subsection (6) is without prejudice to the right of the competent authority and the requesting competition authority to agree on a case-by-case basis that such translation may be provided in another official language of the European Union.

(8) Where the High Court, on an application for confirmation under section 15AS(7), declines to confirm a decision of a requesting competition authority in accordance with section 15AS(8), the competent authority shall notify the requesting competition authority of that decision.

(9) The Court may, on an application for confirmation under section 15AS(7), direct the competent authority to request additional information from the requesting competition authority.

(10) (a) The competent authority may request the reimbursement by the requesting competition authority of all reasonable additional costs in full, including translation, labour and administrative costs, that the competent authority has incurred in responding to requests made to the competent authority under section 15AQ(2) or 15AR(2).

(b) The competent authority shall, where requested to do so by the competition authority to whom the competent authority has made a request under section 15AQ(1) or 15AR(1), reimburse all reasonable additional costs in full, including translation, labour and administrative costs, incurred by that competition authority in relation to that request.

(11) The competent authority may recover the full costs that it has incurred in relation to actions taken to enforce a decision of a requesting competition authority under section 15AS from the administrative fines or periodic penalty payments it has collected on behalf of such requesting competition authority, including translation, labour and administrative costs.

(12) Where, having taken steps to enforce a decision of a requesting competition authority in accordance with section 15AS, the competent authority is unsuccessful in collecting the administrative fines or periodic penalty payments on behalf of such requesting competition authority, the competent authority may request the requesting competition authority to bear the costs that the competent authority has incurred in doing so.

(13) (a) The competent authority may recover the costs incurred in relation to the enforcement of a decision under section 15AS from the undertaking or association of undertakings against which the administrative fine or periodic penalty payment is enforceable.

(b) (i) Where the competent authority fails, within a reasonable period, to recover the costs incurred in relation to the enforcement of a decision under section 15AS from the undertaking or association of undertakings against which the administrative fine or periodic payment is enforceable, the competent authority may initiate proceedings for recovery of same.

(ii) The High Court shall determine the costs of any such proceeding.

(14) The competent authority shall recover the amounts referred to in this section in euro.

(15) The competent authority shall, if necessary, convert the administrative fines or periodic penalty payments referred to in this section into euro at the rate of exchange applying on the date on which the administrative fines or periodic penalty payments were imposed.

(16) The competent authority may not give effect to a request under section 15AR where—

(a) it considers that the request does not comply with the requirements of this section, or

(b) the execution of the request would be manifestly contrary to the public policy of the State.

Disputes concerning requests for notification or enforcement of decisions imposing administrative fines or periodic penalty payments

15AU. (1) Disputes set out in subsection (2)—

(a) shall not be subject to the jurisdiction of the courts of the State, and

(b) where they are the subject of proceedings in the State, shall be resolved by application of the law of the Member State of the requesting competition authority.

(2) The disputes referred to in subsection (1) are those exclusively concerning one or more of the following:

(a) the lawfulness of an act to be notified in accordance with section 15AR;

(b) the lawfulness of a decision to be enforced in accordance with section 15AS;

(d) limitation periods for the enforcement of administrative fines or periodic payments referred to in subsection (9) of section 15AS.

(3) A dispute concerning the enforcement measures taken in the State or concerning the validity of a notification made by the competent authority shall fall within the jurisdiction of the High Court and shall be governed by the law of the State.

PART 2G

Procedural provisions

Access to file by parties and limitations on the use of information

15AV. (1) Where a competent authority or authorised officer requires a natural person to provide a statement or admission on the basis of measures referred to in applicable provisions, any such statement or admission may not be admissible in evidence against that person in criminal proceedings other than criminal proceedings for an offence under section 11(3)(d), 18(4)(c), 35(8)(c) or 36(6) of the Act of 2014, or an offence under section 50(5) of this Act, or for perjury where such statement or admission was provided under oath.

(2) Subject to subsection (3), and save in accordance with law, an adjudication officer, an authorised officer, a competent authority and its respective servants or agents shall not disclose to any person—

(a) any confidential information obtained by virtue of the exercise of powers conferred by or under this Act, or

(b) any information obtained by virtue of the exercise of powers conferred by or under Part 2D or section 18 of the Act of 2014 in relation to an investigation under section 10(1)(c) of that Act where that information was given under power of compulsion.

(3) Notwithstanding subsection (2) an adjudication officer, a competent authority and its servants or agents may disclose information obtained by virtue of the exercise of powers conferred by or under this Act where such disclosure is—

(a) permitted by section 15AX,

(b) otherwise permitted by law, or

(4) Information provided to any person pursuant to subsection (3) may contain such redactions as an adjudication officer or a competent authority may consider necessary and appropriate—

(a) to protect commercially sensitive information,

(b) to protect the rights of the parties or any other person, or

(5) A person who contravenes subsection (2) commits an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.

(6) Subject to this section, the competent authority shall not disclose, or otherwise grant access to, a leniency statement or a settlement submission to any person other than the undertaking or association of undertakings to which the statement or submission relates, other than where such disclosure or access is required to be provided to an undertaking or association of undertakings—

(a) that is a party to proceedings under Part 2D or 2E, or

(b) that is a party to proceedings under Part 2H, other than an undertaking or association of undertakings referred to in section 15AY(1)(b).

(7) Access to a leniency statement or a settlement submission shall only be granted to the undertaking or association of undertakings referred to in subsection (6) for the purpose of defending proceedings before the competent authority under Part 2D or 2E or in any subsequent proceeding under Part 2H.

(8) Where an undertaking or association of undertakings referred to in subsection (6) has been given access to a leniency statement or a settlement submission for the purposes of exercising its right of defence under subsection (7), the undertaking or association of undertakings concerned shall be deemed to have given an undertaking that any such information to which it has been given access shall only be used in proceedings that are directly related to those in which access has been granted, and shall not be retained, stored or otherwise kept following the end of those proceedings or any subsequent proceeding under Part 2H.

(9) Subsection (6) shall only apply where the proceedings concern—

(a) the allocation between cartel participants of an administrative financial sanction imposed jointly and severally on them in proceedings under this Act, or

(b) the review, under Part 2H, of a decision by which an infringement of relevant competition law was found by the competent authority.

(10) The following categories of information obtained by a party during investigations by a competent authority under this Act, or administrative sanctions proceedings before an adjudication officer under this Act, shall not be used by that party in proceedings before a court prior to the competent authority or an adjudication officer, as the case may be, having closed such proceedings with respect to all parties under investigation, whether by making a decision under section 15X or 15AE:

(a) information that was prepared by persons specifically for investigations by the competent authority or administrative sanctions proceedings before an adjudication officer;

(b) information that the competent authority or an adjudication officer has drawn up and sent to the parties in the course of an investigation or administrative financial sanctions proceedings;

(11) A leniency statement shall only be exchanged between a competent authority and the competition authority of another Member State or the European Commission pursuant to Article 12 of Regulation (EC) No 1/2003[^7]—

(a) with the consent of the applicant (within the meaning of Part 2F),

(b) where the competition authority or the European Commission has also received a leniency application relating to the same infringement from the same applicant as the competent authority transmitting the leniency statement, or

(c) subject to subsection (12), where the competent authority has also received a leniency statement relating to the same infringement from the same applicant as the European Commission or the competition authority transmitting the leniency statement.

(12) Subsection (11)(c) shall only apply where, at the time the leniency statement is sent, it is not open to the applicant to withdraw the information which it has submitted to the national competition authority receiving the leniency statement.

(13) The form in which the leniency statement is submitted under section 15AL shall not affect the application of subsections (5) to (11).

(14) In this section, ‘applicable provisions’ means—

(a) sections 18, 37(2)(d)(ii) and 37A of the Act of 2014, and

(b) sections 38A, 39(3A) and (3B) and 39A of the Act of 2002.

Admissibility of evidence

15AW. (1) The types of proof that are admissible as evidence in proceedings under this Act (whether criminal or civil, including proceedings under Part 2 and Parts 2C to 2F before a court or an adjudication officer) shall include relevant documents, oral statements, electronic messages, recordings and all other objects containing information, irrespective of the form it takes and the medium on which information is stored, provided that the proof would be admissible before a court.

(2) If a document contains a statement by a person referred to in subsection (3) asserting that an act has been done, or is or was proposed to be done, by another person, being an act (the ‘relevant act’) that relates to—

(a) the entry into or the making or implementation of an agreement or decision, or the engaging in of a concerted practice, the subject of proceedings under this Act, or

(b) the doing of the act or acts that constitute an abuse of a dominant position, the subject of proceedings under this Act,

then, subject to the conditions specified in subsection (4) being satisfied, that statement shall be admissible as evidence in the proceedings referred to in paragraph (a) or (b) that the relevant act was done by that other person or was proposed (at the time the statement was made or, as the case may be, at a previous time) to be done by him or her.

(3) The first-mentioned person in subsection (2) is a person who has done an act of the kind referred to in that subsection in relation to the agreement, decision, concerted practice or abuse of dominant position concerned (whether or not the same act which the second-mentioned person referred to in that subsection is alleged to have done or proposed to do).

(4) The conditions mentioned in subsection (2) are that the document referred to in that subsection—

(a) has come into existence before the commencement of the proceedings under this Act in which it is sought to tender the document in evidence, and

(b) has been prepared otherwise than in response to any enquiry made or question put by a member or officer of the competent authority, a member of the Garda Síochána, an officer of the European Commission, or an authorised officer relative to any matter the subject of those proceedings.

(5) In estimating the weight, if any, to be attached to evidence admitted by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) Where the proof admitted in evidence by virtue of this section is comprised of a statement by a person—

(a) any evidence which, if the person who made the statement had been called as a witness, would have been admissible as relevant to his or her credibility as a witness shall be admissible for that purpose,

(b) evidence may, with the leave of the court or adjudication officer seised of the proceedings, be given of any matter which, if that person had been called as a witness, could have been put to him or her in cross-examination as relevant to his or her credibility but of which evidence could not be adduced by the cross-examining party, and

(c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) a statement which is inconsistent with it shall, if not already admissible by virtue of any rule of law or other enactment, be admissible for the purpose of showing that he or she has contradicted himself or herself.

(7) Nothing in this section shall prejudice the admissibility in any proceedings under this Act before a court or an adjudication officer of any document, as evidence of any matters stated in it—

(a) that is so admissible by virtue of this Act, any rule of law or any other enactment, or

(b) in respect of adjudication officers, that would be admissible before a Court hearing civil proceedings by virtue of this Act, any rule of law or any other enactment.

(8) The provisions of Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 shall apply to proceedings under this Act (whether criminal or civil, including proceedings under Parts 2C to 2H of this Act).

Confidentiality rings

15AX. (1) Where, in accordance with a provision to which this section applies, a competent authority provides, or otherwise makes available, a document to any person or undertaking, the competent authority may notify the person or undertaking concerned that such document, or such part of the document as it may specify, is provided subject to this section.

(2) A document, or part of a document, provided subject to this section may not be viewed by, or shared with, any person other than one or more of the following, as the competent authority may specify:

(a) the person or undertaking to whom the document is provided or otherwise made available;

(b) a legal adviser, or other professional adviser, of the person or undertaking to whom the document is provided or otherwise made available;

(3) This section applies to the following provisions:

(a) section 15L;

(b) Part 2E;

(4) A person who allows a document provided to the person subject to this section to be viewed by, or shared with, a person other than in accordance with this section shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.

PART 2H

Appeals, Confirmations and Judicial Review

Appeal against certain decisions

15AY. (1) (a) (i) An undertaking or association of undertakings the subject of a decision under section 15X (including a decision on the basis of which an Article 16(1) periodic penalty payment is imposed), other than section 15X(8), may appeal to the Court against that decision not later than 28 working days after the undertaking or association of undertakings receives notice of such decision under section 15Y.

(ii) An undertaking or association of undertakings the subject of an order on consent under section 15X(8) may appeal to the Court against that decision not later than 12 working days after the undertaking or association of undertakings receives notice of such decision under section 15Y.

(iii) A decision of an adjudication officer under section 15X shall not be questioned, including as to its validity, other than by way of an appeal under this section, and no proceedings questioning such a decision (including an application for judicial review referred to in section 15AAA or otherwise) may be brought before the courts other than an appeal under this section or an application for confirmation under section 15AZ.

(b) An undertaking or association of undertakings affected by, but not the subject of, a decision under section 15X may, not later than 14 working days after that decision is published, apply to the Court for leave to appeal to the Court against that decision.

(c) A notified undertaking may appeal to the Court against a prohibition notice not later than 12 working days after the notified undertaking was served with the prohibition notice.

(d) The respondent to an appeal under this section shall be the competent authority.

(2) (a) On application, the Court may extend the period within which an appeal may be brought under subsection (1)(a) or (c), or within which an application for leave to appeal may be brought under subsection (1)(b), where it is satisfied that—

(i) there is exceptional, good and sufficient reason for doing so,

(ii) the circumstances that resulted in the failure to bring an appeal within the period provided for in subsection (1) were outside the control of the applicant for the extension, and

(iii) if an application for confirmation has been brought under section 15AZ—

(I) the Court has not heard the application for confirmation of the decision, and

(II) the Court has not determined the application for confirmation of the decision,

(b) Where an application for confirmation has been brought pursuant to section 15AZ the Court may, upon application or of its own motion, stay the proceedings under section 15AZ.

(c) (i) An application for leave under subsection (1)(b) shall be made by motion ex parte and shall be grounded in the manner specified in rules of court in respect of an ex parte motion for leave.

(ii) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the competent authority or the undertaking or association of undertakings concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis, and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(iii) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion for leave) to any person specified for that purpose by order of the Court.

(d) An undertaking or association of undertakings that appeals under subsection (1), or makes an application under subsection (14)—

(i) may include in such appeal or application, as the case may be, any ground that could, but for section 15AAA(2), be relied upon by the notified undertaking in an application seeking judicial review, and

(ii) shall, on the same date as it makes such appeal or application, as the case may be, notify the respondent of the fact that it has made the appeal or application, and of the grounds on which it has made the appeal or application.

(e) The Court may—

(i) on the consent of all of the parties to an application for leave under subsection (1)(b) (including notice parties), or

(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application as if it were the hearing of the appeal and may for that purpose adjourn the hearing on such terms as it may direct.

(f) The Court shall not grant leave under subsection (1)(b) unless it is satisfied that—

(i) there are substantial grounds for contending that the decision concerned is invalid or ought to be quashed, including any of the grounds of challenge that could have been raised by the undertaking in judicial review proceedings but for section 15AY(1)(a), and

(ii) the applicant is materially affected by the decision or otherwise has a sufficient interest in the matter which is the subject of the application.

(g) A sufficient interest for the purposes of paragraph (f)(ii) of this subsection is not limited to a financial interest.

(h) If the Court grants leave to appeal under subsection (1)(b), no grounds shall be relied upon in the appeal under the order other than those determined by the Court to be substantial under paragraph (f)(i) of this subsection.

(3) The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, issue directions in respect of the conduct of the appeal.

(4) An appellant shall, when making an appeal or an application for leave to appeal, precisely state all of the grounds in law and fact upon which the appeal is made and shall provide to the Court all of the documents and evidence which it is alleged support the granting of the appeal or upon which he or she intends to rely to support those grounds.

(5) A party to an appeal other than the appellant shall, when responding to an appeal, state all of the grounds upon which he or she responds to the appeal and provide to the Court all of the documents and evidence upon which he or she intends to rely to support those grounds.

(6) Subject to subsection (7), a party to an appeal shall not be entitled during the course of an appeal to make submissions to the Court other than submissions related to the grounds stated, or documents and evidence provided, under subsections (4) and (5).

(7) (a) The Court may, upon application and where it considers it necessary for the fair and proper determination of an appeal, require or permit a party to an appeal to—

(i) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided under subsections (4) and (5), and

(ii) provide documents or evidence to the Court other than documents or evidence provided under subsections (4) and (5),

(b) The Court shall refuse to consider submissions, documents or evidence where—

(i) the submissions, documents or evidence are not relevant to the appeal, or

(ii) it is considered appropriate so as to avoid undue repetition of submissions.

(c) Where the Court has granted leave to deliver additional submissions, documents or evidence in an application under paragraph (a), the Court shall give directions as to the scope, form and timeframe for delivery of such additional submissions, documents or evidence.

(d) The Court may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(8) The Court, on hearing an appeal under subsection (1), may consider—

(a) whether the decision made is supported by the evidence including evidence admitted in accordance with subsections (7) and (9),

(b) whether the law was correctly applied in reaching the decision,

(d) whether the jurisdiction existed to make the decision against which an appeal has been brought.

(9) (a) In considering an appeal, the Court—

(i) shall have regard to the record of the decision the subject of the appeal, and

(ii) shall have regard to any submissions, documents or evidence admitted under subsection (7).

(b) The Court may draw inferences of fact in accordance with law.

(10) The Court may, on the hearing of an appeal under subsection (1)—

(a) confirm the decision or prohibition notice the subject of the appeal, or

(b) where it is satisfied by reference to the grounds of appeal that a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error, was made in making the decision, or that the decision was made without complying with fair procedures—

(i) annul the decision in its totality or in part, and—

(I) remit the decision for reconsideration by the adjudication officer or competent authority as the case may be, subject to such directions as the Court considers appropriate and, in the case of a decision by an adjudication officer, including whether the decision should be reconsidered by another adjudication officer, or

(II) vary the decision and substitute such other decision as the Court considers appropriate,

and

(ii) direct how the costs of the appeal or the application for leave to appeal are to be borne.

(11) The Court shall, in determining an appeal or an application for leave to appeal under subsection (1), act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals under subsection (1)(c).

(12) Rules of court may make provision for the conduct of appeals under this section including—

(a) for the expeditious hearing thereof,

(b) for the procedures concerning the hearing of appeals and applications for leave to appeal,

(c) for the manner in which the issues on any such appeal or application for leave to appeal may be pleaded and evidence adduced in connection therewith, and

(d) for expedited hearings of appeals in respect of the imposition of a prohibition notice, or the imposition of a periodic penalty payment under section 15X.

(13) The making of an appeal under subsection (1)(c), or an application for leave to appeal under subsection (1)(b), does not suspend the effect of the decision to which the appeal relates unless the Court, on application by the undertaking bringing the appeal, places a stay on the decision.

(14) Where an appeal is made under subsection (1)(c)—

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