Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

44. Commission may require information regarding end-user complaints

44. The Commission may require providers to collate and—

• (a) publish, or

• (b) provide to it,

in such form as the Commission may specify, comparable data in relation to complaints made to it by end-users and in relation to the procedures that providers have in place for dealing with complaints and for settling disputes with end-users.

45. Notification to end-user of right to refer dispute to Commission

45. Where a provider receives a complaint from an end-user in respect of its services, the provider shall inform the end-user of his or her right to refer a relevant dispute to the Commission for resolution in accordance with section 47.

46. Commission may require provider to comply with code of practice

46. Where the Commission considers that a provider has failed to implement its code of practice, the Commission may serve a direction on the provider specifying the provisions of the code which have not been implemented and requiring the provider to implement them.

47. Resolution of relevant disputes by Commission

47. (1) An end-user may refer a dispute with a provider to the Commission and, where the Commission is satisfied that the dispute is a relevant dispute, and—

• (a) a period of at least 10 days has elapsed since the complaint giving rise to the dispute was made, or

• (b) the procedures for the resolution of disputes provided for in the provider’s code of practice have been completed,

the Commission, or such independent person as may be appointed by the Commission, shall, in accordance with such procedures as may be specified by the Commission under section 48, carry out a dispute resolution process and propose a resolution to the dispute referred.

• (2) Where the Commission proposes a resolution under subsection (1) the end-user that referred the dispute may elect to accept the resolution proposed and where the end-user so elects the resolution shall be binding on the provider concerned.

• (3) An end-user who has referred a dispute to the Commission for resolution under this section may withdraw the dispute at any stage up to the time at which the Commission, or such independent person as may be appointed by the Commission, proposes a resolution to the dispute, by notifying the Commission, or the person, in writing to that effect, or, where there is an oral hearing in relation to the dispute, by notifying the Commission, or the person, at the hearing.

48. Procedure for resolution of disputes by Commission

48. (1) The Commission may specify procedures for the resolution of disputes under section 47 and such procedures shall—

• (a) be transparent, non-discriminatory, simple, and inexpensive,

• (b) enable disputes to be settled fairly and promptly, and

• (c) be made publicly available by the Commission, together with any amendments to such procedures.

• (2) The Commission, or such independent person as may be appointed by the Commission under section 47(1), shall, as soon as practicable after an end-user refers a dispute, inform the end-user—

• (a) of his or her right under section 47(2) to elect to accept the resolution proposed,

• (b) of his or her right under section 47(3) to withdraw the dispute,

• (c) that the procedure is without prejudice to any other right to seek redress, including by court proceedings,

• (d) that the resolution proposed may be different from an outcome determined by a court,

• (e) of the legal effect of electing to accept the resolution proposed,

• (f) that he or she will be given a reasonable period of time to consider whether to elect to accept the proposed solution, and

• (g) that if the end-user does not elect to accept the resolution proposed within the period specified for the purposes of paragraph (f), the end-user shall be deemed to have rejected the proposed solution.

49. Direction

49. (1) Where the Commission is satisfied that a provider has failed to comply with a proposed resolution that is binding upon it by virtue of section 47(2), the Commission may serve a direction on the provider requiring the provider to take such measures to ensure compliance with the resolution as are specified in the direction.

• (2) Without prejudice to the generality of subsection (1), a direction may require all or any of the following:

• (a) the reimbursement of payments by a provider to an end-user;

• (b) payment of compensation by a provider to an end-user;

• (c) payment by a provider in settlement of losses suffered by an end-user;

• (d) where the Commission is satisfied that the conditions, requirements or circumstances permitting such termination have been met, the termination of a contract between a provider and an end-user without the end-user incurring further costs;

• (e) the giving of an apology by a provider to an end-user;

• (f) the giving of an explanation by a provider to an end-user for any matter giving rise to a complaint;

• (g) compliance with a term or condition of the contract between the provider and the end-user;

• (h) compliance with a legal obligation pursuant to the law relevant to the relevant dispute.

• (3) The maximum amount of compensation that a provider may be directed to pay to any end-user under this section shall be €5,000 or such other lesser or greater amount as the Minister may prescribe.

50. Disputes involving parties in more than one Member State

50. Where a person refers a relevant dispute to the Commission under section 47 that involves parties in different Member States the Commission shall coordinate its efforts with any relevant regulatory authority in the other Member States with a view to bringing about a resolution of the dispute.

51. Remuneration and expenses of person appointed by Commission to carry out dispute resolution process

51. The Commission may pay such remuneration and expenses to an independent person appointed by the Commission referred to in section 47(1) as it considers appropriate and the amount of such payments shall be included in the expenses of the Commission for the purpose of section 30 of the Principal Act.

52. Enforcement

52. (1) The following provisions are regulatory provisions:

• (a) section 41(1).

• (b) subsections (1) and (2) of section 42;

• (c) section 43;

• (d) section 45.

• (2) A provider that fails to comply with—

• (a) a requirement under section 41(2).

• (b) an obligation to take a measure prescribed by a regulation under section 41(3) that is stated in the regulations to be a penal provision,

• (c) subsections (1) and (2) of section 42,

• (d) a direction under section 42(4).

• (e) section 43(a).

• (f) a requirement under section 44,

• (g) a direction under section 46, or

• (h) a direction under section 49,

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

• (3) In proceedings for the prosecution of an offence consisting of a failure to comply with section 43 it is a defence for a provider to show that it took all reasonable steps and exercised all due diligence to avoid committing the offence.

53. Commission to be listed as alternative dispute resolution entity

53. (1) The Competition and Consumer Protection Commission shall, notwithstanding paragraph (1) of Regulation 8 of the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015 (S.I. No. 343 of 2015) (referred to in this section as the “Regulations of 2015”) add the Commission to the list of ADR entities established and maintained by it under that Regulation.

• (2) The Regulations of 2015 do not apply to an ADR process conducted by the Commission or a person appointed by the Commission under section 47.

54. Procedure under this Part without prejudice to other remedies

54. This Part is without prejudice to an end-user’s right to pursue a dispute to which this section applies by other legal means or proceedings.

55. Application of Universal Service Regulations to certain disputes

55. Where on the coming into operation of this section, a dispute is before the Commission, or an independent person, for resolution in accordance with Regulation 27(4) of the Universal Service Regulations then, notwithstanding any repeal of the Universal Service Regulations, those Regulations shall continue to apply in respect of such a dispute.

56. Continuation of measures under Universal Services Regulations

56. (1) Any measure that is in force under Regulation 27 of the Universal Services Regulations on the coming into operation of this section shall continue in force and be deemed to have been made under, and in accordance with, this Part.

• (2) Without prejudice to the generality of subsection (1), for the purposes of this section “measure” includes any decision, specification, requirement, direction, notification and notice, and any other act of an equivalent nature.

PART 6 Interim Measures

57. Urgent interim measures

57. (1) The Commission may, at any time where it has evidence of a breach of a regulatory provision or a breach of conditions, or of a substantial risk that either such breach will take place, that—

• (a) represents an immediate and serious threat to public safety, public security or public health, or

• (b) risks creating serious economic or operational problems for other providers or users of electronic communications networks or services or other users of the radio spectrum,

impose urgent interim measures (referred to in this Act as “urgent interim measures”) to remedy the breach or the risk of the breach.

• (2) The urgent interim measures that the Commission may impose in accordance with subsection (1) may include a requirement—

• (a) that the suspected breach cease and that specified measures be taken to remedy the suspected breach, or

• (b) in the case of an anticipated breach, that specified measures be taken to prevent the breach from taking place,

immediately or within a reasonable time limit.

• (3) Where the Commission imposes urgent interim measures it shall serve a notice in writing (referred to in this Act as an “urgent interim measures notice”) on the person suspected of the breach or, as the case may be, the anticipated breach.

• (4) An urgent interim measures notice shall—

• (a) identify the evidence referred to in subsection (1).

• (b) specify the suspected, or anticipated, regulatory breach or breach of conditions,

• (c) identify any suspected breach that is required to cease,

• (d) specify any measure that is required to be taken to remedy the suspected breach concerned or to prevent the anticipated breach from taking place,

• (e) specify any date or time by which the breach is to cease or any measure is to be taken, and

• (f) be signed and dated by the Commission.

• (5) An urgent interim measure shall take effect on such date as the Commission specifies in the notice.

• (6) The Commission shall, subject to subsection (8), allow a reasonable period, having regard to the urgency of the measures and the particular circumstances, before an urgent interim measure takes effect to enable the person to whom the measure is directed to make written submissions to the Commission in relation to the measure including any remedies that the person concerned may wish to propose.

• (7) A person to whom an urgent interim measure is directed may, within the period specified in the urgent interim measures notice, or where the measure is varied within the period specified in the notice of such variation, make written submissions to the Commission in relation to the measure or the variation of the measure.

• (8) Exceptionally, and in circumstances of extreme urgency, the Commission may specify that an urgent interim measure take effect without the person to whom it is directed having an opportunity to make submissions and where the Commission does so it shall provide the person with an opportunity to make such submissions as soon as possible after the measure takes effect.

• (9) Where the Commission receives written submissions in accordance with subsection (7) or (8) in relation to an urgent interim measure it shall—

• (a) consider such submissions, and

• (b) by notice in writing to each person on which the urgent interim measures notice was served, confirm, revoke or vary the urgent interim measure.

• (10) Subject to subsection (11) and to any order made by the High Court on an appeal under section 105 an urgent interim measure shall remain in effect until the earlier of—

• (a) such date as the Commission may specify in the urgent interim measures notice, and

• (b) the expiry of a period of 3 months beginning on the date on which the measure first came into effect.

• (11) The Commission may by notice in writing to each person on which the urgent interim measures notice was served, in circumstances where enforcement procedures have not been completed, extend the period during which an urgent interim measure remains in force up to a maximum period of 6 months beginning on the date on which the measure first came into effect.

• (12) Where there is a material change of circumstances while an urgent interim measure is in effect a person to whom the measure is directed may make representations to the Commission to have the measure varied or revoked.

• (13) The Commission may vary or revoke an urgent interim measure at any time by notice in writing to the person on whom the urgent interim measures notice was served, setting out how the measure is to be varied or stating that the measure is to be revoked and stating the date on which such variation or revocation is to take effect.

• (14) An urgent interim measures notice shall cease to have any effect if it is revoked by the Commission.

• (15) A person to whom an urgent interim measures notice is directed shall comply with any urgent interim measures contained in such notice.

• (16) Where a person fails to comply with an urgent interim measure the Commission may apply to the High Court for an order compelling compliance.

• (17) Where an urgent interim measure—

• (a) requires the cessation of a breach that constitutes a criminal offence, or

• (b) requires a person to do something in circumstances where a failure to do the thing required constitutes a criminal offence,

and the Commission has—

• (i) brought proceedings in respect of such offence, or

• (ii) given a notice under section 44 of the Principal Act in respect of such offence,

the Commission shall not make an application for an order under subsection (16) compelling compliance with the urgent interim measures notice.

• (18) A person to whom an urgent interim measure is directed may appeal the measure in accordance with Chapter 8 of Part 7.

• (19) Where the Commission imposes urgent interim measures under this section in relation to a suspected regulatory breach that is the subject of an investigation by an authorised officer, the authorised officer shall, as soon as reasonably practicable thereafter, conclude the investigation and determine whether or not to serve a notice of suspected non-compliance within the meaning of Part 7.

58. Imposition of urgent interim measures by High Court

58. (1) The High Court may, on an application to it in that behalf, where it is satisfied that a person is—

• (a) committing a regulatory breach, or

• (b) engaging in conduct which may give rise to a regulatory breach,

that gives rise to a serious risk of—

• (i) irreparable harm to public safety, public security, public health, competition or the rights of end-users, or

• (ii) substantial economic or operational difficulties for other providers or users of electronic communications networks or services or other users for radio spectrum,

by order require that, on the expiry of any specified urgent interim measure imposed by the Commission under section 57, the breach or conduct cease immediately or within a reasonable time period and that specified measures be taken to remedy the breach or the effects of the conduct concerned.

• (2) The High Court may in particular—

• (a) make an order on the same or similar terms as an urgent interim measures notice under section 57 that has expired or is to expire, or

• (b) extend urgent interim measures imposed under section 57 for a period beyond the period referred to in subsection (11) of that section.

PART 7 Administrative Sanctions

Chapter 1 Interpretation and application of Part 7

59. Interpretation (Part 7)

59. In this Part—

“Act of 2002” means the Competition Act 2002;

“adjudication” means—

• (a) a decision by an adjudicator under section 90, and

• (b) any decision of the adjudicator under section 91 on foot of that decision,

or either such decision;

“adjudicator” has the meaning given to it by section 76;

“administrative sanction” means—

• (a) a requirement to cease a regulatory breach or to take specified measures to remedy the breach,

• (b) a requirement to pay a financial penalty, refund or compensation, or

• (c) the withdrawal or suspension of authorisation or rights of use,

imposed under section 91 and “administrative sanctions proceedings” shall be interpreted accordingly;

“appeal” means an appeal under Chapter 8;

“authorised officer” shall be construed in accordance with section 39 of the Principal Act;

“commercially sensitive information” means information the disclosure of which could reasonably be expected to—

• (a) substantially and materially prejudice the commercial or industrial interests of—

• (i) the person required to provide the information,

• (ii) another person, or

• (iii) a class of persons in which a person referred to in subparagraph (i) or (ii) falls,

• (b) substantially prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation, or

• (c) substantially prejudice the financial position of—

• (i) the State,

• (ii) a Department of State,

• (iii) the Garda Síochána,

• (iv) the Permanent Defence Force within the meaning of the Defence Act 1954,

• (v) a local authority within the meaning of the Local Government Act 2001, or

• (vi) a body established by or under any enactment or charter other than the Companies Act 2014 or a former enactment relating to companies within the meaning of section 5 of that Act;

“licence” means a licence granted under section 5 of the Act of 1926 to keep and have possession of apparatus for wireless telegraphy for the provision of an electronic communications network or service and which grants a right of use for radio spectrum;

“notice of suspected non-compliance” has the meaning given to it by section 63;

“notified person” means a person on whom a notice of suspected non-compliance has been served;

“referral report” has the meaning given to it by section 70.

60. Regulatory provisions and power of Minister to apply Part to certain breaches

60. (1) In this Part, “regulatory provision” means any of the following:

• (a) a provision of this Act that is stated in this Act to be a regulatory provision;

• (b) the Code Regulations;

• (c) an Act or a provision of an Act (other than this Act) that is stated in such Act to be a regulatory provision for the purposes of this Part;

• (d) regulations or a provision of regulations made by the Minister prescribed by the Minister as a regulatory provision for the purposes of this Part;

• (e) an act, or provision of an act, adopted by an institution of the European Union, prescribed by the Minister as a regulatory provision for the purposes of this Part;

• (f) a decision or action of the Commission (referred to in this section as a “regulatory decision”) the effect of which is to require a person to do, or refrain from doing, something and including the making of a requirement or direction, the imposition of an obligation, the designation of a person or thing, the determination that certain provisions apply to a person or thing, the making of a specification (including the specification of a standard) and the giving of notice, or the notification of, such a requirement, under—

• (i) this Act,

• (ii) the Code Regulations,

• (iii) an Act, or a provision of an Act, referred to in paragraph (c).

• (iv) a regulation, or a provision of regulations, referred to in paragraph (d), or

• (v) an act, or provision of an act, referred to in paragraph (e).

• (g) a condition or restriction of a licence granted to a provider under section 5 of the Act of 1926.

• (2) The Minister may when making regulations under any Act, in order to ensure that the penalties provided for the breach of such regulations, or any decision made under such regulations, are appropriate, effective, proportionate and dissuasive, apply the provisions of this Part to a breach of any provision of such regulations, and any regulatory decision made under such regulations, and may, for that purpose, state in such regulations that the regulations or any provision thereof is a regulatory provision for the purposes of this Part.

• (3) The Minister may, in order to ensure that the penalties provided for the breach of such act or decision are appropriate, effective, proportionate and dissuasive, apply the provisions of this Part to a breach of any provision of an act adopted by an institution of the European Union, and any regulatory decision made under such act, and may, for that purpose prescribe such act or any provision of such act as a regulatory provision for the purposes of this Part.

61. Application of Part

61. (1) This Part applies in respect of a licence notwithstanding anything to the contrary in—

• (a) the Act of 1926,

• (b) any Regulations made under section 6 (inserted by section 182 of, and Schedule 2 to, the Broadcasting Act 2009) of the Act of 1926, and

• (c) the licence itself.

• (2) This Part is without prejudice to any power of the Commission to suspend or withdraw general authorisation or rights of use for radio spectrum or rights of use for numbering resources.

Chapter 2 Preliminary procedure

62. Power of Commission to resolve suspected regulatory breach, etc.

62. (1) Where the Commission suspects on reasonable grounds that a person has committed or is committing a regulatory breach it may enter into an agreement in writing with the person to resolve the matter.

• (2) Such an agreement is to be on such terms as are specified in the agreement and is binding on the Commission and the person concerned.

• (3) The terms of such an agreement may include terms under which that person accepts the imposition of administrative sanctions.

• (4) The Commission may enter into an agreement under this section—

• (a) without any investigation into the matter taking place under this Act, or

• (b) after beginning such an investigation, as long as an adjudicator has not made a decision in respect of the matter under section 90.

• (5) Where a person with whom the Commission has entered into an agreement under this section fails to comply with any of the terms of the agreement, the Commission may apply to the High Court for an order under subsection (6).

• (6) If satisfied on application to it under subsection (5) that the person concerned has failed to comply with any of the terms of the agreement under this section, the High Court may make an order requiring that person to comply with those terms or that term, as the case may be.

• (7) The Commission may, by proceedings brought in a court of competent jurisdiction, recover as a debt due to the Commission the amount of any amount agreed to be paid under an agreement entered into under this section.

63. Notice of suspected non-compliance

63. (1) In this Act, “notice of suspected non-compliance” means a notice in writing informing the person on whom it is served of the details of a regulatory breach of which the person is suspected.

• (2) Where an authorised officer suspects on reasonable grounds that a person has committed or is committing a regulatory breach that does not constitute a criminal offence the authorised officer may serve a notice of suspected non-compliance on the person.

• (3) Where an authorised officer suspects on reasonable grounds that a person has committed or is committing a regulatory breach that constitutes a criminal offence, the authorised officer may serve a notice of suspected non-compliance on the person if—

• (a) the offence is an offence that may be prosecuted summarily by the Commission and the Commission has elected not to prosecute the offence, or

• (b) the authorised officer refers the matter to the Director of Public Prosecutions and the Director of Public Prosecutions has not commenced criminal proceedings in respect of the regulatory breach.

• (4) A notice of suspected non-compliance shall be in such form as the Commission may specify, and shall—

• (a) inform the notified person that the authorised officer suspects that the person has committed or is committing a regulatory breach,

• (b) set out the grounds for the authorised officer’s suspicion in sufficient detail to allow the notified person to fully respond to the notice of suspected non-compliance in accordance with subsection (6), and

• (c) inform the notified person of its right to make submissions under subsection (6), and the period within which that right may be exercised.

• (5) The authorised officer shall, as soon as is practicable after issuing the notice of suspected non-compliance, serve on the notified person a copy of, or access to, any material relied upon by the authorised officer for the purpose of issuing the notice of suspected non-compliance, subject to such redactions as the authorised officer may consider necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason.

• (6) Subject to subsection (7), a notified person may, within such period as is specified in the notice, make written submissions to the authorised officer on the notice of suspected non-compliance.

• (7) Notwithstanding the period specified in the notice of suspected non-compliance in accordance with subsection (4)(c), the authorised officer may, where it is appropriate to do so in the circumstances of the case, extend the period within which written submissions may be made and shall notify the notified person in writing of the extended period.

64. Supplementary notice of suspected non-compliance

64. (1) Where an authorised officer, having served a notice of suspected non-compliance, identifies—

• (a) new or different points of fact or law, or new evidence, having a material impact on its analysis or the grounds set out in the notice of suspected non-compliance, or

• (b) any error or inaccuracy in the notice of suspected non-compliance,

the authorised officer shall serve a notice (referred to in this Act as a “supplementary notice of suspected non-compliance”) on each notified person.

• (2) A supplementary notice of suspected non-compliance shall—

• (a) be in such form as the Commission may specify,

• (b) summarise the new or different points of fact or law or new evidence that have been identified by the authorised officer and the material impact of such points of fact or law or such evidence on the analysis or the grounds set out in the notice of suspected non-compliance of the authorised officer, and

• (c) inform the notified person of its right to make written submissions under subsection (3), and specify the period within which that right may be exercised.

• (3) Subject to subsection (4), the notified person on which a supplementary notice of suspected non-compliance is served may, within such period as is specified in the supplementary notice, make written submissions to the authorised officer on the supplementary notice of suspected non-compliance.

• (4) Notwithstanding the period specified in the supplementary notice of suspected non-compliance in accordance with subsection (3), the authorised officer may, where it is appropriate to do so in the circumstances of the case, extend the period within which the notified person may make written submissions in accordance with that subsection and shall notify each notified person in writing of the extended period.

65. Commission may revoke notice of suspected non-compliance, etc.

65. The Commission may revoke a notice of suspected non-compliance or a supplementary notice of suspected non-compliance.

66. Commission may publish notice of suspected non-compliance, etc.

66. The Commission may (save where such publication would, in the opinion of the Commission, prejudice the achievement of the objectives of this Act) publish a notice of suspected non-compliance or a supplementary notice of suspected non-compliance on the website of the Commission, with due regard for the protection of commercially sensitive information.

67. Commitments

67. (1) A notified person may at any time prior to the date on which an adjudicator makes a decision under section 90 in relation to the regulatory breach specified in a notice of suspected non-compliance (referred to in this section as the “relevant breach”), propose to the Commission in writing measures to appropriately address the breach.

• (2) Where the Commission 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 other persons,

• (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 person that made the proposal, require the person 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 the subject of a commitment, propose to the person modifications, alterations, additions or other changes to the proposal.

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

• (a) appropriately address the relevant breach, and

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

it may notify the person in writing that it is willing to accept a commitment from the person in relation to the proposal.

• (4) Where a person enters into a commitment with the Commission in accordance with this section (referred to in this Act as a “commitment”), the Commission shall publish the commitment (save where such publication would, in the opinion of the Commission, prejudice the achievement of the objectives of this Act) on the website of the Commission, with due regard for the protection of commercially sensitive information, as soon as practicable after the notified person has entered into the commitment.

• (5) The Commission shall not take any further step in administrative sanctions proceedings in relation to the relevant breach as long as it is satisfied that—

• (a) the notified person is in compliance with the commitment, and

• (b) that the information submitted by the notified person at the time it entered into the commitment was not incomplete, incorrect, false, or misleading in a material respect.

• (6) A commitment may be amended or terminated where both the notified person and the Commission agree to the amendment or termination.

• (7) Where the Commission is no longer satisfied that a notified person is in compliance with a commitment it shall notify the person that it intends to take further steps in the administrative sanctions proceedings and afford the person an opportunity to make submissions in relation to its compliance with the commitment.

68. Settlements

68. (1) An authorised officer may, with the approval of the Commission, at any time prior to the date on which an adjudicator makes a decision under section 90 in relation to the regulatory breach specified in a notice of suspected non-compliance agree a settlement with a notified person.

• (2) An authorised officer may at any time refer a proposed settlement to the Commission for its approval.

• (3) Where the Commission approves a settlement with a notified person, the authorised officer shall—

• (a) prepare a report containing at least the following:

• (i) a summary of the facts of the case;

• (ii) the regulatory breach alleged against the notified person;

• (iii) details of any administrative sanction to be imposed on the notified person as part of the settlement;

• (iv) a statement that the Commission and the notified person consent to the imposition of the administrative sanction referred to in subparagraph (iii); and

• (v) details of any other measures agreed to be taken either by the Commission or by the notified person on foot of the settlement agreement,

• (b) give a copy of the report referred to in paragraph (a) to the notified person, and

• (c) subject to subsection (4), refer the matter to an adjudicator for an adjudication on consent.

• (4) Where at the time the notified person is given a copy of the report in accordance with subsection (3)(b) where the matter has been referred for adjudication under section 69(b)—

• (a) the authorised officer shall notify the adjudicator concerned of the withdrawal of the referral under section 69(b), and

• (b) the matter shall be deemed to have been referred to an adjudicator under subsection (3)(c) for an adjudication on consent.

• (5) Where, following the confirmation of an adjudication on consent under section 109(1) the notified person fails to comply with any of the terms of the settlement, the Commission may apply to the High Court for an order under subsection (6).

• (6) If satisfied on application to it under subsection (5) that a notified person has failed to comply with an adjudication on consent confirmed under section 109(1), the High Court may make an order requiring that person to comply with the adjudication.

• (7) The Commission may, by summary proceedings brought in a court of competent jurisdiction, recover as a debt due to the Commission any amount agreed to be paid by the notified person as part of a settlement confirmed by an order of the Court under section 109(1).

69. Actions by authorised officer following investigation

69. An authorised officer, having investigated a suspected regulatory breach, may, subject to section 68 and with the consent of the Commission—

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

• (b) where the authorised officer suspects on reasonable grounds that the notified person has committed or is committing a regulatory breach, refer the matter in accordance with section 71 for adjudication.

70. Referral report

70. Prior to referring a matter for adjudication an authorised officer shall prepare a report (referred to in this Act as a “referral report”) containing—

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

• (b) details of the regulatory breach concerned,

• (c) an outline of the facts and evidence on which the authorised officer is relying for the purpose of referring the matter to the Commission for adjudication,

• (d) a summary of any submissions made by the notified person to the authorised officer during the investigation, including in response to the notice of suspected non-compliance or any supplementary notice of suspected non-compliance,

• (e) the authorised officer’s assessment of the extent to which the notified person cooperated with the investigation, and

• (f) any other information that the authorised officer considers to be relevant to an adjudication.

71. Referral of matter by authorised officer to adjudicator for adjudication

71. (1) Where an authorised officer refers a matter for adjudication he or she shall provide the adjudicator with—

• (a) the notice of suspected non-compliance served by the authorised officer under section 63, and any supplementary notice of suspected non-compliance served by the authorised officer under section 64,

• (b) the referral report,

• (c) a copy of all material relied upon by the authorised officer in forming his or her opinion, and

• (d) any submissions made by the notified person during the investigation.

• (2) An authorised officer shall, as soon as is practicable after providing an adjudicator with the information specified in subsection (1), give the notified person—

• (a) a copy of the referral report, and

• (b) a copy of, or access to, any material (other than material that has already been provided to the notified person) relied upon by the authorised officer for the purpose of referring the matter for adjudication, subject to such redactions as the authorised officer considers necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason.

72. Withdrawal by Commission of matter referred to adjudicator

72. (1) A referral under section 68(3)(c) or section 69 may be withdrawn by the Commission at any time before the adjudicator makes an adjudication or, as the case may be, an adjudication on consent.

• (2) Where a referral is withdrawn under this section, the adjudicator shall—

• (a) notify the notified person of the withdrawal, and

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

73. Power of Commission to share certain documents

73. (1) The Commission may provide a copy of any notice or document referred to in section 63, 64, 71 or 83 to such other persons as the Commission considers appropriate, subject to such redactions as the Commission considers appropriate.

• (2) A person that is provided with a copy of a notice or document under subsection (1) subject to redactions may appeal against the decision of the Commission to make such redactions—

• (a) within 14 days of the date of service the copy of the notice or document, and

• (b) by application to the adjudicator to whom the matter has been referred under section 71.

• (3) A person who receives—

• (a) a copy of a document referred to in subsection (1), or

• (b) copies of materials under section 63(5) or section 71(2).

shall not, without the prior authorisation of the Commission, disclose the existence or the content of the document or materials to any other person.

• (4) A person who contravenes subsection (3) commits an offence and is liable on summary conviction to a class A fine.

74. Regulations and rules relating to referrals to adjudicator

74. (1) The Minister may prescribe the procedure for—

• (a) making a referral under section 68(3)(c).

• (b) withdrawing a referral under section 72, and

• (c) making an application for an adjudication on consent under section 109(1).

• (2) The Commission may, subject to this Act and to any regulations made under subsection (1), make rules detailing the procedure for—

• (a) making a referral under section 68(3)(c).

• (b) withdrawing a referral under section 72, and

• (c) making an application for an adjudication on consent under section 109(1).

Chapter 3 Adjudicators

75. Nomination of adjudicators

75. (1) The Commission shall nominate persons who may be appointed by the Minister under section 76.

• (2) The Commission may nominate persons under subsection (1), including members of the Commission, employees and members of staff of the Commission,who have, in the opinion of the Commission, sufficient relevant expertise to merit such appointment whether or not the persons are members or employees of the Commission.

• (3) The Minister shall, in a manner ensuring the independence of adjudicators in the performance of their functions, prescribe categories of persons who may be nominated and criteria, including requirements and qualifications, by which to determine whether or not a person is eligible to be nominated by the Commission for appointment by the Minister as adjudicators (including a Chief Adjudicator).

76. Appointment of adjudicators

76. (1) The Minister shall appoint persons (referred to in this Act as “adjudicators”) to make adjudications.

• (2) The Minister shall appoint a person nominated by the Commission under section 75 unless the Minister—

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

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

• (3) The Commission shall appoint one of the adjudicators appointed under this section to be the Chief Adjudicator.

• (4) Nothing in this Act or the Act of 2002 or in any regulations made under either Act shall prevent—

• (a) the Minister appointing, under and in accordance with this section, as an adjudicator a person who is, on the nomination of the Commission, appointed as an adjudication officer or Chief Adjudication Officer under the Act of 2002, or

• (b) a person who is appointed by the Minister, under and in accordance with this section, as an adjudicator being appointed as an adjudication officer or Chief Adjudication Officer under the Act of 2002.

• (5) The Minister may make regulations providing for the creation of a panel of adjudicators to perform the functions of adjudicators under this Act.

• (6) If no Chief Adjudicator stands appointed by the Commission under this section the adjudicators standing appointed may agree that one of them perform the functions of Chief Adjudicator.

77. Independence of adjudicators

77. (1) Adjudicators shall be independent in the performance of their functions.

• (2) The Commission shall put in place measures to ensure—

• (a) the independence of adjudicators in the performance of their functions, and

• (b) the effective implementation of, and adherence to, any regulations made under section 80.

• (3) Where an adjudicator believes that performing any of his or her functions as an adjudicator in particular administrative sanctions proceedings would potentially create a conflict of interest, then the adjudicator shall recuse himself or herself from the proceedings in question and shall notify the Commission and the parties concerned of the recusal.

• (4) Where an adjudicator believes that performing any of his or her functions as an adjudicator would give rise to the perception of any potential conflict of interest, the adjudicator shall disclose that fact to the Commission and to the parties concerned in the matter with which the adjudicator is dealing, and shall, having regard to any submissions received from the person concerned or from the Commission, consider whether it is necessary to recuse himself or herself from the proceedings in question.

• (5) An adjudicator shall not make an adjudication where that adjudicator has been involved in any decision of the Commission whether or not to exercise any of the powers referred to in Chapter 2 or Part 6 for the purposes of an investigation in relation to the matter the subject of the adjudication.

• (6) An adjudicator shall not, during the period of his or her appointment, draw up or decide upon—

• (a) guidelines under section 98 (other than subsection (1)(g)), or

• (b) the policy of the Commission concerning—

• (i) the bringing of criminal prosecutions, the referral of matters to the Director of Public Prosecutions or the making of referrals under section 68(3)(c) or 71, and

• (ii) administrative sanctions that may be imposed under section 91,

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

• (7) Where a decision of the Commission referred to in subsection (5) is made as a college, or in any other manner whereby a decision of the Commission is treated as having been made by all members of the Commission, a member of the Commission who recused himself or herself from the process of making that decision shall, for the purposes of subsection (5), be deemed not to have been involved in that decision, provided that the recusal took place at a point and in a manner which does not compromise the independence of the member of the Commission as an adjudicator.

• (8) The chairperson of the Commission shall not during his or her term of office serve as an adjudicator.

• (9) A member of the Commission may not during his or her term of office serve as Chief Adjudicator.

• (10) A member of the Commission or a member of staff of the Commission who is appointed as an adjudicator or is appointed to assist an adjudicator under section 81 shall not be required by the Commission or by any other person to perform any duty, including any statutory duty, of a member of the Commission or a member of staff of the Commission or of an authorised officer or of an adjudicator the performance of which interferes with his or her independence in making an adjudication or, in the case of a person appointed to assist an adjudicator under section 81, the independence of an adjudicator whom he or she is assisting or may assist.

78. Regulations to ensure independence of adjudicators

78. (1) The Minister shall make regulations prescribing requirements to be imposed upon the Commission and adjudicators to implement section 77.

• (2) Adjudicators shall not be involved in investigations of regulatory breaches and shall not act as authorised officers under section 39 of the Principal Act subject to such exceptions as the Minister may prescribe.

• (3) Regulations under this section may make further provision for the independence of adjudicators (including an effective internal separation between the functions of the Commission and the functions of adjudicators) and any such regulations shall (where appropriate) include provision for—

• (a) a requirement that adjudicators, and employees of the Commission tasked with assisting adjudicators, shall not communicate with authorised officers, employees and members of the Commission in respect of any proceeding relating to a regulatory breach before the Commission arising under this Act save on notice to the persons concerned in those proceedings the subject of a referral under section 68(3)(c) or 71, or as otherwise permitted by regulations, which may include communications relating to investigations in which the adjudicators, and employees of the Commission tasked with assisting the adjudicators, have not been nor will be involved in any decision under section 71,

• (b) a requirement that documentation and other information concerning an investigation conducted under Chapter 2 which have been obtained by the Commission in the performance of its functions under this Act, shall not be disclosed to adjudicators that have been directed to make an adjudication in relation to that same investigation or to employees of the Commission or other persons (including any consultant or adviser) tasked with assisting such adjudicators save in accordance with this Act and upon notice to the persons concerned in any referral under section 68(3)(c) or 71,

• (c) arrangements for oversight by specified members or employees of the Commission for compliance by the Commission with the provisions of section 77,

• (d) reporting to the Minister or the Commission by specified members or employees of the Commission or by adjudicators of any breach of section 77 and for remedying any such breach,

• (e) a requirement that the Commission publish policies and implement measures sufficient to identify and manage conflicts of interest on the part of—

• (i) adjudicators, and

• (ii) any employee of the Commission or other person (including any consultant or adviser) tasked with assisting an adjudicator in the performance of his or her functions under this Act,

and

• (f) a requirement that the Chief Adjudicator and the Commission report annually to the Minister on the Commission’s compliance with the principle of independence under section 77 and any regulations made hereunder and the policies the adjudicators or the Commission have adopted in order to do so.

79. Adjudicators may sit together

79. The powers and functions of an adjudicator shall be exercisable by each adjudicator for the time being standing appointed save that the Chief Adjudicator may direct that an uneven number of adjudicators sit together for the purpose of a particular adjudication or part of an adjudication and where the Chief Adjudicator so directs the functions of an adjudicator for that purpose shall be performed by those adjudicators sitting together.

80. Regulations in relation to adjudicators

80. The Minister shall, in a manner ensuring the independence of adjudicators in the performance of their functions, make regulations to provide for each of the following:

• (a) the term of appointment of adjudicators (including the term of appointment of a Chief Adjudicator), which term shall be specified in the instrument of appointment, and may be—

• (i) fixed and non-renewable, or

• (ii) fixed and renewable based upon objective, independently assessed competence-based criteria prescribed by the Minister under section 75(3).

• (b) the remuneration of the Chief Adjudicator and other adjudicators, which remuneration may—

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

• (ii) vary depending on the category of person prescribed by the Minister under section 75(3) into which the adjudicator falls;

• (c) such prohibitions on remuneration of adjudicators during their term of office, by persons or bodies other than the Commission, as are necessary to ensure that actual or perceived conflicts of interest do not arise in the performance of the adjudicator’s functions;

• (d) the renewal of appointment of adjudicators, including criteria for such renewal;

• (e) the resignation from office of adjudicators;

• (f) procedures and criteria whereby the revocation of appointments of adjudicators may only take place upon decision by the Government after independent assessment and recommendation by persons outside the Commission with relevant experience and expertise and where—

• (i) the adjudicator concerned has become incapable through ill-health of effectively performing his or her functions,

• (ii) the adjudicator concerned has engaged in serious misconduct, or

• (iii) the Commission has been notified of an adjudicator’s conflict of interest in more than one matter, which conflict of interest is assessed to be likely to continue,

without prejudice to the automatic removal from office as an adjudicator of an employee of the Commission upon cessation of that employment;

• (g) the functions of the Chief Adjudicator;

• (h) the rules concerning adjudications by adjudicators sitting together;

• (i) the rules concerning promotion and increments of employees of the Commission who act as adjudicators;

• (j) the rules concerning the tasking of any employee of the Commission to assist an adjudicator in their performance of his or her functions under this Act;

• (k) the rules concerning the appointment of consultants or advisers for the purpose of assisting an adjudicator in the performance of his or her functions under this Act.

81. Assistants to adjudicators

81. (1) The Commission may from time to time—

• (a) require any employee of the Commission, or

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

to assist adjudicators, or an individual adjudicator (including the Chief Adjudicator), in the performance of functions under this Act.

• (2) Persons assisting an adjudicator in accordance with subsection (1) shall not provide such assistance in connection with any matter in which they have or may have a conflict of interest.

• (3) The Chief Adjudicator may at any time direct that an employee of the Commission required to assist the adjudicators, or an individual adjudicator, under subsection (1)(a) in the performance of powers and functions under this Act, be reassigned by the Commission.

• (4) Persons required to, or appointed to as the case may be, assist adjudicators under subsection (1) may perform other tasks on behalf of the Commission, including performing tasks in any investigation in which they have not been, and will not be, involved in assisting an adjudicator under this section, but they shall be solely responsible to the Chief Adjudicator, or to the adjudicator or adjudicators to which they have been individually assigned, in relation to providing assistance in accordance with subsection (1).

• (5) Employees of the Commission who have been required to assist adjudicators under subsection (1)(a) and persons appointed by the Commission to assist adjudicators under subsection (1)(b) shall not be subject to the direction of any member or employee of the Commission, (other than, where such member or employee is the adjudicator) in relation to the performance of the functions referred to in that subsection.

• (6) Nothing in subsection (5) shall preclude an employee of the Commission or other person appointed by the Commission being subject to the direction of a member or employee of the Commission in relation to the performance of functions not referred to in subsection (1)(a).

• (7) Without prejudice to the responsibility of the Commission for employment and for entering into contracts and determining all matters relevant thereto, where an adjudicator has made a determination that specific assistance is required in a particular matter referred to the adjudicator for a decision under section 90, the adjudicator shall be consulted on decisions concerning the appointment and assignment of a person to provide assistance to the adjudicator.

• (8) The Minister may prescribe detailed requirements governing the appointment and assignment of persons to assist adjudicators under subsection (1)(b).

• (9) The Minister may, where it is necessary to enable the proper functioning of the Commission, make regulations prescribing such limited exceptional circumstances in which persons referred to in subsection (5) may be subject to a direction referred to in that subsection.

82. Effect of appointment as adjudicator on terms of employment or contract with Commission

82. (1) Nothing in this Part shall preclude the Commission from relying on any aspect of a contract of service or contract for services in relation to the performance or non-performance of tasks other than—

• (a) the functions of an adjudicator under this Act, and

• (b) the functions of a person required to assist adjudicators under section 81(1)(a) when assisting an adjudicator.

• (2) The appointment of a person as an adjudicator shall not in itself—

• (a) constitute employment by or within the Commission,

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

• (c) otherwise create a contract between an adjudicator on the one part and the Minister or the Commission on the other part.

• (3) Save in relation to the application of independence requirements to an adjudicator, nothing in this Part shall alter the terms and conditions of employment of an adjudicator who is an employee of the Commission on the date on which this section comes into operation.

• (4) Save for such limited exceptions consistent with the independence of adjudicators in the performance of their functions that the Minister may prescribe, nothing in this Part shall prevent the application by the Commission of disciplinary procedures under a contract of employment save in respect of—

• (a) the tasks of an adjudicator under this Act, and

• (b) the tasks of a person required to assist adjudicators under section 81(1)(a) when assisting an adjudicator.

• (5) The Minister may make regulations to give further effect to this section.

Chapter 4 Procedure following referral to adjudicator

83. Notification by adjudicator following referral

83. As soon as practicable after a referral is made to an adjudicator under s ection 68(3)(c) or 71, the adjudicator shall serve on the notified person—

• (a) a copy of this section,

• (b) in the case of a referral under s ection 68(3)(c), a notice in writing stating that the matter has been referred for an adjudication on consent under section 109, and asking the person to confirm the matters set out in the report prepared in accordance with section 68(3)(a) within the period of 15 days from the date of service of the notice, or such further period, not exceeding 7 days, as the adjudicator may specify in the notice, and

• (c) in the case of a referral under section 71, a notice in writing stating that the person may make written submissions to the adjudicator on the referral report within the period of 30 days beginning on the date of service of the notice, or such further period, not exceeding 15 days, as the adjudicator may specify in the notice.

84. Actions following referral under s ection 68(3)(c)

84. Where a notified person served with a notice in accordance with section 83(b) confirms the matters set out in the report prepared in accordance with section 68(3)(a), an adjudicator may, at any time following such confirmation, impose on the person, in accordance with the report any of the following:

• (a) a requirement to cease the regulatory breach or to take specified measures to remedy the breach;

• (b) a financial penalty in accordance with section 94;

• (c) a requirement to pay a refund in accordance with section 95;

• (d) a requirement to pay compensation in accordance with section 96;

• (e) a suspension or withdrawal of authorisation or rights of use for radio spectrum or rights of use for numbers, in accordance with section 97.

85. Actions following referral under section 71

85. (1) In the case of a referral under section 71 the adjudicator may do any of the following that he or she considers necessary to resolve an issue of fact or otherwise enable the adjudicator to make an adjudication:

• (a) exercise any of the powers under section 87;

• (b) request further information from the person concerned;

• (c) request further information from any other person, and may, for the purposes of doing so, provide, with due regard for the protection of commercially sensitive information, a copy of the referral report to the person;

• (d) conduct an oral hearing.

• (2) Where there is a dispute of fact which cannot be successfully resolved in accordance with paragraphs (a) to (c) of subsection (1) the adjudicator concerned shall, on the request of the notified person, conduct an oral hearing in order to resolve the dispute.

• (3) Where an oral hearing takes place at which a person may make submissions to the adjudicator on the referral report, the adjudicator shall not be required to give to the person the material referred to in subsection (5).

• (4) As soon as practicable after making a request under subsection (1)(c), the adjudicator shall give to the Commission, and shall, with due regard for the protection of commercially sensitive information, give to the notified person, a copy of the request.

• (5) As soon as practicable after receiving any information pursuant to a request under subsection (1)(c), the adjudicator shall, with due regard for the protection of commercially sensitive information, give the Commission and the person—

• (a) a copy of the information or, where commercial confidentiality means that such information cannot be provided in full, a summary of such information, and

• (b) written notice stating that the Commission and the person may make written submissions to the adjudicator on the information within the period of 21 days beginning on the date of service of the notice, or such further period, not exceeding 14 days, as the adjudicator may specify in the notice.

• (6) A person who receives a copy of a report under subsection (1)(c), shall not, without the prior authorisation of the adjudicator, disclose the existence or the content of the report to any other person.

• (7) A person who contravenes subsection (6) commits an offence and is liable on summary conviction to a class A fine.

• (8) An adjudicator may direct an employee of the Commission who has been required under section 81(1)(a) to assist the adjudicator in the performance of his or her functions to make any communication on his or her behalf.

86. Admissibility of evidence and rules for oral hearings conducted by adjudicators

86. (1) This section applies to an oral hearing before an adjudicator.

• (2) An adjudicator may, by notice, in writing—

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

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

• (3) An adjudicator may require evidence to be given on oath or affirmation, and may for that purpose—

• (a) require a witness to take an oath or affirmation, and

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

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

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

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

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

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

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

• (8) At the oral hearing before the adjudicator—

• (a) an authorised officer or other representative of the Commission or any other person, with leave of the adjudicator, shall present the evidence in support of the referral, and

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

• (9) A person to whom notice is given under subsection (2), or an authorised officer, may be examined and cross-examined at the oral hearing.

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

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

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

• (13) The payment or reimbursement of, or of any part of, the reasonable travelling and subsistence expenses of a witness required to attend an oral hearing, is at the discretion of the adjudicator, and such expenses shall be discharged by the Commission.

• (14) The rules of evidence shall apply to an oral hearing before an adjudicator save as may be otherwise prescribed.

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

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

• (17) Subject to any regulations under subsection (16), the Commission shall make rules providing for the conduct of an oral hearing under this section and shall publish such rules on the website of the Commission.

• (18) Rules made under subsection (17) shall not have effect until they are published.

87. Powers of adjudicators and offences

87. (1) At any time after a referral under section 69 an adjudicator may, on an application by the Commission or the notified person or of the adjudicator’s own motion, where the adjudicator is satisfied that such direction is necessary for the determination of the issues before the adjudicator—

• (a) direct authorised officers of the Commission, or the notified person (each of which, in this section, is referred to as a “party”) to answer (whether on oath or affirmation or otherwise) an identified question or questions in whatever manner or form the adjudicator may specify,

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

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

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

• (3) A summons issued by the adjudicator for the purpose of an oral hearing under section 86 may be substituted for, and is the equivalent of, any formal process capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of records.

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

• (5) A person commits an offence if the person—

• (a) is served with a notice under section 86(2) and does not comply with that notice,

• (b) is subject to a direction under subsection (1) and fails to comply with such direction,

• (c) having been duly summoned to attend before an adjudicator under section 86(2) fails without reasonable excuse to attend at the time and place indicated on the summons,

• (d) while attending as a witness before an adjudicator at an oral hearing under section 86 refuses to—

• (i) give evidence in the manner lawfully required by the adjudicator to be taken,

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

• (iii) answer any question that the person is lawfully required by the adjudicator to answer,

or

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

• (6) Where a person fails to comply with a requirement of an adjudicator under section 86, with a direction under subsection (1), or with a summons to attend before an adjudicator, or refuses, while attending as a witness before the adjudicator, to do anything referred to in subsection (5) that the person is lawfully required by an adjudicator to do, or otherwise fails to comply with a direction of the adjudicator, the Court, on summary application by a party, on notice to that person, may—

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

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

• (7) A person commits an offence if, having been, or in anticipation of being, required to produce a book, document or record under subsection (1) or under section 86(2), he or she intentionally or recklessly destroys or otherwise disposes of, falsifies or conceals such book, document or record or causes or permits its destruction, disposal, falsification or concealment.

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

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

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

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

• (10) A person who commits an offence under subsection (5), (7), (8) or (9) is liable—

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

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

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

• (12) The Minister may make regulations setting out further details or conditions for the exercise of the powers of adjudicators under this section.