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Number 14of2002
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COMPETITION ACT, 2002
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ARRANGEMENT OF SECTIONS
PART 1
Preliminary and General
Section
1. Short title.
2. Commencement.3. Interpretation.
PART 2
Competition Rules and Enforcement
4. Anti-competitive agreements, decisions and concerted
practices.
5. Abuse of dominant position.6. Offence in respect of breach of section 4(1) or Article 81(1)
of the Treaty.
7. Offence in respect of breach of section 5(1) or Article 82 of
the Treaty.
8. Penalties and proceedings in relation to offences under
sections 6 and 7.
9. Provisions as respects expert evidence.
10. Provision of information to juries.11. Trial of persons for certain offences by Central Criminal
Court.
12. Presumptions.13. Admissibility of statements contained in certain documents.[No. 14.] Competition Act, 2002. [2002.]
2Section
14. Right of action for breaches of competition rules.
15. Appeal to High Court against declaration under section 4(3) .
PART 3
Mergers and Acquisitions
16. Mergers and acquisitions for the purposes of Act.17. Application of sections 18 to22.
18. Obligation to notify certain mergers and acquisitions.19. Limitation on merger or acquisition being put into effect.20. Examination by the Authority of notification.21. Determination of issues concerned without full investigation,
etc.
22. Determination of issues concerned on foot of full inves-
tigation.
23. Provisions with regard to media mergers.24. Appeal to the High Court against determination of the
Authority.
25. Laying of order under section 23(4) before Houses of the
Oireachtas.
26. Enforcement of certain commitments, determinations and
orders.
27. Alteration of certain monetary amounts.28. Relationship between this Part and other enactments.
PART 4
The Competition Authority
29. The Competition Authority.
30. Functions of the Authority.31. Investigations of the Authority — general provisions.32. Prohibition on unauthorised disclosure of information.33. Strategic plans and work programmes.34. Provisions for co-operation between the Authority and statu-
tory bodies.
35. Membership.36. Disqualification.[2002.] Competition Act, 2002. [ No. 14.]
Section
37. Meetings and business.
38. Functions and accountability of chairperson.39. Staff.40. Seal of the Authority.41. Accounts and audits.42. Annual report.43. Grants and borrowing powers.44. Superannuation.45. Authorised officers and their powers.46. Relationship of Authority with foreign competition bodies.47. Information relating to offences under this Act may be dis-
closed to Authority.
PART 5
Miscellaneous
48. Repeals.49. Restrictive Practices (Groceries) Order, 1987.50. Protections for person reporting breaches of Act.51. Amendment of Industrial and Provident Societies Act, 1893.52. Regulations and orders.53. Expenses.54. Provision with respect to fees payable under this Act.55. Saving and transitional provisions.
SCHEDULE 1
Statutory Bodies and their responsible Ministers of the
Government
SCHEDULE 2
Saving and Transitional Provisions
SCHEDULE 3
Redress for Contravention of Section 50(3)
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3[No. 14.] Competition Act, 2002. [2002.]
4Acts Referred to
Broadcasting Act, 2001 2001, No. 4Civil Service Commissioners Act, 1956 1956, No. 45Civil Service Regulation Acts, 1956 and 1958Competition Act, 1991 1991, No. 24Competition Acts, 1991 and 1996Competition (Amendment) Act, 1996 1996, No. 19Comptroller and Auditor General (Amendment) Act, 1993 1993, No. 8European Parliament Elections Act, 1997 1997, No. 2Industrial and Provident Societies (Amendment) Act, 1971 1971, No. 31Industrial and Provident Societies Act, 1893 56 & 57 Vict. c. 39Interpretation Act, 1937 1937, No. 38Mergers and Takeovers (Control) Acts, 1978 to 1996Mergers, Take-overs and Monopolies (Control) Act, 1978 1978, No. 17Minimum Notice and Terms of Employment Acts, 1973 and 1984Organisation of Working Time Act, 1997 1997, No. 20Petty Sessions (Ireland) Act, 1851 1851, c. 93Public Offices Fees Act, 1879 1879, c. 58Radio and Television Act, 1988 1988, No. 20Redundancy Payments Acts, 1967 to 1990Restrictive Practices (Amendment) Act, 1987 1987, No. 31Terms of Employment (Information) Act, 1994 1994, No. 5Unfair Dismissals Act, 1977 1977, No. 10Unfair Dismissals Acts, 1977 to 1993————————
Number 14of2002
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COMPETITION ACT, 2002
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AN ACT TO MAKE NEW PROVISION, BY ANALOGY WITH
ARTICLES 81 AND 82 OF THE TREATY ESTABLISHINGTHE EUROPEAN COMMUNITY, AND IN THEINTERESTS OF THE COMMON GOOD, FOR THE PRO-HIBITION OF ACTIVITIES WHICH PREVENT,RESTRICT OR DISTORT COMPETITION IN TRADE INTHE STATE OR WHICH CONSTITUTE AN ABUSE OF ADOMINANT POSITION IN SUCH TRADE, TO COM-PLEMENT THE POWERS AVAILABLE TO THE COM-MISSION OF THE EUROPEAN COMMUNITIES WITHREGARD TO THE ENFORCEMENT OF THE SAIDARTICLES 81 AND 82, TO MAKE NEW PROVISION, INTHE INTERESTS OF THE COMMON GOOD, FOR THECONTROL OF CERTAIN MERGERS OR ACQUISITIONS,TO CONTINUE IN BEING THE COMPETITION AUTH-ORITY AND MAKE NEW PROVISION ABOUT ITSFUNCTIONS, TO REPEAL THE COMPETITION ACTS,1991 AND 1996, THE MERGERS AND TAKEOVERS(CONTROL) ACTS, 1978 TO 1996, AND CERTAIN OTHERENACTMENTS, TO AMEND THE INDUSTRIAL ANDPROVIDENT SOCIETIES ACT, 1893, WITH RESPECT TOTHE REQUIREMENTS FOR CERTAIN SPECIAL RESOL-UTIONS THEREUNDER, AND TO PROVIDE FORRELATED MATTERS. [10 th April, 2002]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary and General
1.—This Act may be cited as the Competition Act, 2002.
2.—This Act shall come into operation on such day or days as the
Minister may appoint by order or orders either generally or withreference to any particular purpose or provision and different daysmay be so appointed for different purposes or different provisions.
3.—(1) In this Act, unless the context otherwise requires—
‘‘authorised officer’’ means a person appointed under section 45 ;
Short title.
Commencement.
Interpretation.[No. 14.] Competition Act, 2002. [2002.]
Pt.1 S.3
6‘‘Authority’’ means the Competition Authority continued in being
bysection 29 ;
‘‘Commission’’ means the Commission of the European Com-
munities;
‘‘conditional determination’’ shall be construed in accordance with
section 22 ;
‘‘contravention’’ includes, in relation to any provision, a failure to
comply with that provision and ‘‘contravene’’ shall be construedaccordingly;
‘‘Council’’ means the Council of the European Communities;‘‘court’’, where used without qualification, means the District Court,
the Circuit Court or the High Court as appropriate, or, in the caseof an appeal, the Circuit Court, the High Court or the SupremeCourt as appropriate;
‘‘director’’ includes a person in accordance with whose directions or
instructions the directors of the undertaking concerned are accus-tomed to act but does not include such a person if the directors areaccustomed so to act by reason only that they do so on advice givenby the person in a professional capacity;
‘‘functions’’ includes powers and duties and a reference to the per-
formance of functions includes, with respect to powers and duties, areference to the exercise of the powers and the carrying out of theduties;
‘‘Minister’’ means the Minister for Enterprise, Trade and
Employment;
‘‘prescribed’’ means prescribed by regulations made by the Minister
under this Act;
‘‘publish’’, in relation to a matter, includes to place a notice in
relation to it in a national newspaper and to post a notice in relationto it on a website maintained by the Authority, any Minister of theGovernment or a statutory body;
‘‘statutory body’’ means a person specified in column (1) ofSchedule 1 ;
‘‘Treaty’’ means the Treaty establishing the European Community;‘‘undertaking’’ means a person being an individual, a body corporate
or an unincorporated body of persons engaged for gain in the pro-duction, supply or distribution of goods or the provision of a service.
(2) In this Act references, however expressed, to an agreement
being concluded in respect of a merger or acquisition shall be con-strued as including references to an agreement (of whatever kindand whether expressed to be in respect of a merger or acquisition ornot) being entered into the result of which will, if the agreement isimplemented, be that a merger or acquisition occurs.
(3) Where—
(a) proof of any matter is, by any provision of this Act, placed
on the defendant in the proceedings concerned it shallbe sufficient, for the purposes of that provision, for the[2002.] Competition Act, 2002. [ No. 14.]
Pt.1 S.3 defendant to prove the matter on the balance of prob-
abilities,
(b) any provision of this Act provides that any specified matter
or matters is or are presumed to be fact unless the con-trary is shown (as distinct from being presumed to be factunless or until the contrary is proved) the provision shallbe construed as placing on the defendant in the pro-ceedings concerned an evidential burden only withrespect to the matter or matters.
(4) In this Act references, however expressed, to an act that is
done with the consent of a person shall be construed as includingreferences to an act that is done with the connivance of a person.
(5) In this Act a reference to a section or Schedule is a reference
to a section of, or Schedule to, this Act, unless it is indicated that areference to some other provision is intended.
(6) In this Act a reference to a subsection, paragraph or subpara-
graph is a reference to the subsection, paragraph or subparagraph ofthe provision in which the reference occurs, unless it is indicated thatreference to another provision is intended.
(7) In this Act a reference to any other enactment shall be con-
strued as a reference to that enactment as amended, extended oradapted by or under any subsequent enactment (including this Act).
PART 2
Competition Rules and Enforcement
4.—(1) Subject to the provisions of this section, all agreements
between undertakings, decisions by associations of undertakings andconcerted practices which have as their object or effect the preven-tion, restriction or distortion of competition in trade in any goods orservices in the State or in any part of the State are prohibited andvoid, including in particular, without prejudice to the generality ofthis subsection, those which—
(a) directly or indirectly fix purchase or selling prices or any
other trading conditions,
(b) limit or control production, markets, technical development
or investment,
(c) share markets or sources of supply,
(d) apply dissimilar conditions to equivalent transactions with
other trading parties thereby placing them at a competi-tive disadvantage,
(e) make the conclusion of contracts subject to acceptance by
the other parties of supplementary obligations which bytheir nature or according to commercial usage have noconnection with the subject of such contracts.
(2) An agreement, decision or concerted practice shall not be pro-
hibited under subsection (1) if it complies with the conditions
referred to in subsection (5) or falls within a category of agreements,
decisions, or concerted practices the subject of a declaration for thetime being in force under subsection (3) .
7Anti-competitive
agreements,decisions andconcerted practices.[No. 14.] Competition Act, 2002. [2002.]
Pt.2 S.4
Abuse of dominant
position.
8(3) The Authority may declare in writing that in its opinion a
specified category of agreements, decisions or concerted practicescomplies with the conditions referred to in subsection (5) ; such a
declaration may be revoked by the Authority if it becomes of theopinion that the category no longer complies with those conditions.
(4) The Authority shall publish, in such manner as it thinks fit,
notice of the making of a declaration under subsection (3) , and of
any revocation by it of such a declaration.
(5) The conditions mentioned in subsections (2) and (3)are that
the agreement, decision or concerted practice or category of agree-ment, decision or concerted practice, having regard to all relevantmarket conditions, contributes to improving the production or distri-bution of goods or provision of services or to promoting technicalor economic progress, while allowing consumers a fair share of theresulting benefit and does not—
(a) impose on the undertakings concerned terms which are not
indispensable to the attainment of those objectives,
(b) afford undertakings the possibility of eliminating compe-
tition in respect of a substantial part of the products orservices in question.
(6) The prohibition in subsection (1) shall not prevent the court,
in exercising any jurisdiction conferred on it by this Act concerningan agreement, decision or concerted practice which contravenes thatprohibition and which creates or, but for this Act, would havecreated legal relations between the parties thereto, from applying,where appropriate, any relevant rules of law as to the severance of
those terms of that agreement, decision or concerted practice whichcontravene that prohibition from those which do not.
(7) In respect of an agreement, decision or concerted practice such
as is referred to in subsection (6) a court of competent jurisdiction
may make such order as to recovery, restitution or otherwisebetween the parties to such agreement, decision or concerted prac-tice as may in all the circumstances seem just, having regard in par-ticular to any consideration or benefit given or received by such par-ties on foot thereof.
(8) The putting into effect of a merger or acquisition in accordance
with the provisions of Part 3 of this Act, together with any arrange-
ments constituting restrictions which are directly related and neces-sary to the implementation of the merger or acquisition and arereferred to in the notification of the merger or acquisition undersubsection (1) or(3)ofsection 18 , shall not be prohibited under sub-
section (1) .
(9) For the avoidance of doubt, references in this Part of this Act
to the parties to an agreement, decision or concerted practice of akind referred to in subsection (1) include references to one or more
of the parties to such an agreement, decision or concerted practice.
(10) Subsection (9) is without prejudice to section 11( a) of the
Interpretation Act, 1937.
5.—(1) Any abuse by one or more undertakings of a dominant
position in trade for any goods or services in the State or in any partof the State is prohibited.[2002.] Competition Act, 2002. [ No. 14.]
Pt.2 S.5 (2) Without prejudice to the generality of subsection (1) , such
abuse may, in particular, consist in—
(a) directly or indirectly imposing unfair purchase or selling
prices or other unfair trading conditions,
(b) limiting production, markets or technical development to
the prejudice of consumers,
(c) applying dissimilar conditions to equivalent transactions
with other trading parties, thereby placing them at a com-petitive disadvantage,
(d) making the conclusion of contracts subject to the acceptance
by other parties of supplementary obligations which bytheir nature or according to commercial usage have noconnection with the subject of such contracts.
(3) The putting into effect of a merger or acquisition in accordance
with the provisions of Part 3 of this Act, together with any arrange-
ments constituting restrictions which are directly related and neces-sary to the implementation of the merger or acquisition and arereferred to in the notification of the merger or acquisition undersubsection (1) or (3)o fsection 18 , shall not be prohibited under sub-
section (1) .
6.—(1) An undertaking which—
(a) enters into, or implements, an agreement, or
(b) makes or implements a decision, or
(c) engages in a concerted practice,
that is prohibited by section 4(1) or by Article 81(1) of the Treaty
shall be guilty of an offence.
(2) In proceedings for an offence under subsection (1) , it shall be
presumed that an agreement between competing undertakings, adecision made by an association of competing undertakings or a con-certed practice engaged in by competing undertakings the purposeof which is to—
(a) directly or indirectly fix prices with respect to the provision
of goods or services to persons not party to the agree-ment, decision or concerted practice,
(b) limit output or sales, or
(c) share markets or customers,
has as its object the prevention, restriction or distortion of compe-
tition in trade in any goods or services in the State or in any part ofthe State or within the common market, as the case may be, unlessthe defendant proves otherwise.
(3) In proceedings for an offence under subsection (1) in which it
is alleged that an agreement, decision or concerted practice contra-vened the prohibition in section 4(1) , it shall be a good defence to
prove that the agreement, decision or concerted practice in questiondid not contravene that prohibition by virtue of section 4(2) .
9Offence in respect
of breach of section
4(1) or Article
81(1) of the Treaty.[No. 14.] Competition Act, 2002. [2002.]
Pt.2 S.6
Offence in respect
of breach of section
5(1) or Article 82 of
the Treaty.
Penalties and
proceedings inrelation to offencesunder sections 6 and
7.
10(4) In proceedings for an offence under subsection (1) in which it
is alleged that an agreement, decision or concerted practice contra-vened the prohibition in Article 81(1) of the Treaty, it shall be agood defence to prove that—
(a) there was in force, at the material time, in respect of the
particular agreement, decision or concerted practice anexemption granted by the Commission pursuant toArticle 81(3) of the Treaty,
(b) at the material time the agreement, decision or concerted
practice benefited from the terms of an exemption pro-vided for by, or granted under, a regulation made by theCouncil or the Commission pursuant to that Article81(3), or
(c) the agreement, decision or concerted practice did not con-
travene that prohibition by virtue of that Article 81(3).
(5) In proceedings for an offence under subsection (1) , it shall be
a good defence to prove that the act or acts concerned was or weredone pursuant to a determination made or a direction given by astatutory body.
(6) For the purpose of determining liability for an offence under
subsection (1) , any act done by an officer or an employee of an
undertaking for the purposes of, or in connection with, the businessor affairs of the undertaking shall be regarded as an act done by theundertaking.
(7) In this section ‘‘competing undertakings’’ means undertakings
that provide or are capable of providing goods or services to thesame applicable market and, for the purposes of this definition,‘‘applicable market’’ means a market comprising the provision ofgoods or services that are regarded by those to whom they are pro-vided as interchangeable with, or substitutable for, each other byreason of the goods’ or services’ characteristics, prices and intendeduse or purpose.
7.—(1) An undertaking that acts in a manner prohibited by section
5(1) or by Article 82 of the Treaty shall be guilty of an offence.
(2) In proceedings for an offence under subsection (1) , it shall be
a good defence to prove that the act or acts concerned was or weredone pursuant to a determination made or a direction given by astatutory body.
(3) For the purpose of determining liability for an offence under
subsection (1) , any act done by an officer or an employee of an
undertaking for the purposes of, or in connection with, the businessor affairs of the undertaking shall be regarded as an act done by theundertaking.
8.—(1) An undertaking guilty of an offence under section 6 (being
an offence involving an agreement, decision or concerted practice to
which subsection (2) of that section applies) shall be liable—
(a) on summary conviction—
(i) in the case of an undertaking that is not an individual,
to a fine not exceeding \3,000, or[2002.] Competition Act, 2002. [ No. 14.]
Pt.2 S.8 (ii) in the case of an individual, to such a fine or to impris-
onment for a term not exceeding 6 months or to bothsuch fine and such imprisonment,
(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 followingamounts is the greater, namely, \4,000,000 or 10 per
cent of the turnover of the undertaking in the finan-cial year ending in the 12 months prior to the convic-tion, or
(ii) in the case of an individual, to a fine not exceeding
whichever of the following amounts is the greater,namely, \4,000,000 or 10 per cent of the turnover of
the individual in the financial year ending in the 12months prior to the conviction or to imprisonmentfor a term not exceeding 5 years or to both suchfine (that is to say a fine not exceeding the greaterof the foregoing monetary amounts) and suchimprisonment.
(2) An undertaking guilty of an offence under section 6 (other
than one to which subsection (1) applies) or section 7 shall, whether
the undertaking is an individual or otherwise, be liable—
(a) on summary conviction, to a fine not exceeding \3,000, or
(b) on conviction on indictment, to a fine not exceeding which-
ever of the following amounts is the greater, namely,\4,000,000 or 10 per cent of the turnover of the undertak-
ing in the financial year ending in the 12 months prior tothe conviction.
(3)Sections 6 and7operate so that if the contravention concerned
continues one or more days after the date of its first occurrence theundertaking referred to in section 6 or7, as the case may be, is guilty
of a separate offence under that section for each day that the contra-vention occurs; but in respect of the second or subsequent offenceof which the undertaking is guilty by reason of that continued contra-vention, subsections (1) and (2)shall have effect as if—
(a) in the case of subsection (1) —
(i) in paragraph (a) ,‘ ‘\300’’ were substituted for
‘‘\3,000’’ and references to imprisonment were dis-
regarded, and
(ii) in paragraph (b) —
(I) references to a fine not exceeding \40,000 were
substituted for the references to a fine notexceeding the greater of the monetary amountsmentioned therein, and
(II) references to imprisonment were disregarded,
and
(b) in the case of subsection (2) —
11[No. 14.] Competition Act, 2002. [2002.]
Pt.2 S.8
12(i) in paragraph (a) ,‘ ‘\300’’ were substituted for
‘‘\3,000’’, and
(ii) in paragraph (b) , a reference to a fine not exceeding
\40,000 were substituted for the reference to a fine
not exceeding the greater of the monetary amountsmentioned therein.
(4) Where a court imposes a fine or affirms or varies a fine
imposed by another court for an offence under section 6 or7in pro-
ceedings brought by the Authority, it shall, on the application of theAuthority (made before the time of such imposition, affirmation orvariation), provide by order for the payment of the amount of thefine to the Authority and such payment may be enforced by theAuthority as if the payment were due to the Authority on foot of adecree or order made by the court in civil proceedings.
(5) The amount of any fine paid to, or recovered by, the Authority
under subsection (4) shall be disposed of by it in such manner as the
Minister for Finance directs.
(6) Where an offence under section 6 or7has been committed by
an undertaking and the doing of the acts that constituted the offencehas been authorised, or consented to, by a person, being a director,manager, or other similar officer of the undertaking, or a personwho purports to act in any such capacity, that person as well as theundertaking shall be guilty of an offence and shall be liable to beproceeded against and punished as if he or she were guilty of thefirst-mentioned offence.
(7) Where a person is proceeded against as aforesaid for such an
offence and it is proved that, at the material time, he or she was adirector of the undertaking concerned or a person employed by itwhose duties included making decisions that, to a significant extent,could have affected the management of the undertaking, or a personwho purported to act in any such capacity, it shall be presumed, untilthe contrary is proved, that that person consented to the doing ofthe acts by the undertaking which constituted the commission by itof the offence concerned under section 6 or7.
(8) Where the affairs of a body corporate are managed by its
members, subsections (6) and (7)shall apply in relation to the acts
or defaults of a member in connection with his or her functions ofmanagement as if he or she were a director of the body corporate.
(9) Summary proceedings in relation to an offence under section
6or7may be brought by the Authority.
(10) An action under section 14 may be brought whether or not
there has been a prosecution for an offence under section 6 or7in
relation to the matter concerned and such an action shall not preju-dice the initiation of a prosecution for any such offence.
(11) Notwithstanding section 10(4) of the Petty Sessions (Ireland)
Act, 1851, summary proceedings for an offence under section 6 or7
may be instituted within 2 years after the day on which the offencewas committed.
(12) In this section ‘‘turnover’’ does not include any payment in
respect of value-added tax on sales or the provision of services or inrespect of duty of excise.[2002.] Competition Act, 2002. [ No. 14.]
9.—(1) In proceedings under this Act, the opinion of any witness
who appears to the court to possess the appropriate qualifications orexperience as respects the matter to which his or her evidence relatesshall, subject to subsection (2) , be admissible in evidence as regards
any matter calling for expertise or special knowledge that is relevantto the proceedings and, in particular and without prejudice to thegenerality of the foregoing, the following matters, namely—
(a) the effects that types of agreements, decisions or concerted
practices may have, or that specific agreements, decisionsor concerted practices have had, on competition in trade,
(b) an explanation to the court of any relevant economic prin-
ciples or the application of such principles in practice,where such an explanation would be of assistance to thejudge or, as the case may be, jury.
(2) Notwithstanding anything contained in subsection (1) , a court
may, where in its opinion the interests of justice require it to so directin the proceedings concerned, direct that evidence of a general orspecific kind referred to in the said subsection shall not be admissiblein proceedings for an offence under section 6 or7or shall be admiss-
ible in such proceedings for specified purposes only.
10.—In a trial on indictment of an offence under section 6 or7,
the trial judge may order that copies of any or all of the followingdocuments shall be given to the jury in any form that the judge con-siders appropriate:
(a) any document admitted in evidence at the trial,
(b) the transcript of the opening speeches of counsel,
(c) any charts, diagrams, graphics, schedules or agreed summar-
ies of evidence produced at the trial,
(d) the transcript of the whole or any part of the evidence given
at the trial,
(e) the transcript of the closing speeches of counsel,
(f) the transcript of the trial judge’s charge to the jury.
11.—A person indicted (whether as a principal or an accessory)
for an offence under section 6 or7or the offence of attempting to
commit such an offence or the offence of conspiracy to commit suchan offence shall be tried by the Central Criminal Court.
12.—(1) The presumptions specified in this section shall apply in
any proceedings, whether civil or criminal, under this Act.
(2) Where a document purports to have been created by a person
it shall be presumed, unless the contrary is shown, that the documentwas created by that person and that any statement contained therein,unless the document expressly attributes its making to some otherperson, was made by that person.
(3) Where a document purports to have been created by a person
and addressed and sent to a second person, it shall be presumed,unless the contrary is shown, that the document was created and sent
13Pt.2
Provisions as
respects expertevidence.
Provision of
information tojuries.
Trial of persons for
certain offences byCentral CriminalCourt.
Presumptions.[No. 14.] Competition Act, 2002. [2002.]
Pt.2 S.12
Admissibility of
statementscontained in certaindocuments.
14by the first person and received by the second person, and that any
statement contained therein—
(a) unless the document expressly attributes its making to some
other person, was made by the first person, and
(b) came to the notice of the second person.
(4) Where a document is retrieved from an electronic storage and
retrieval system, it shall be presumed, unless the contrary is shown,that the author of the document is the person who ordinarily usesthat electronic storage and retrieval system in the course of his orher business.
(5) Where an authorised officer who, in the exercise of his or her
powers under section 45 , has removed one or more documents from
any place, gives evidence in any proceedings under this Act that, tothe best of the authorised officer’s knowledge and belief, the materialis the property of any person, then the material shall be presumed,unless the contrary is shown, to be the property of that person.
(6) Where, in accordance with subsection (5) , material is pre-
sumed in proceedings under this Act to be the property of a personand the authorised officer concerned gives evidence that, to the bestof the authorised officer’s knowledge and belief, the material ismaterial which relates to any trade, profession, or, as the case maybe, other activity, carried on by that person, the material shall bepresumed, unless the contrary is proved, to be material which relatesto that trade, profession, or, as the case may be, other activity, car-ried on by that person.
(7) References in this section to a document are references to a
document in written, mechanical or electronic form and, for this pur-pose, ‘‘written’’ includes any form of notation or code whether byhand or otherwise and regardless of the method by which, or mediumin or on which, the document concerned is recorded.
13.—(1) If a document contains a statement by a person referred
to in subsection (2) asserting that an act has been done, or is or was
proposed to be done, by another person, being an act (the ‘‘relevantact’’) that relates to—
(a) the entry into or the making or implementation of an agree-
ment or decision, or the engaging in of a concerted prac-
tice, 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 thisAct,
then, subject to the conditions specified in subsection (3) being satis-
fied, that statement shall be admissible as evidence in the pro-ceedings referred to in paragraph (a) or(b)that the relevant act was
done by that other person or was proposed (at the time the statementwas made or, as the case may be, at a previous time) to be done byhim or her.
(2) The person mentioned in subsection (1) is a person who has
done an act of the kind referred to in that subsection in relation tothe agreement, decision, concerted practice or abuse of dominantposition concerned (whether or not the same act which the other[2002.] Competition Act, 2002. [ No. 14.]
Pt.2 S.13 person referred to in that subsection is alleged to have done or pro-
posed to do).
(3) The conditions mentioned in subsection (1) are that the docu-
ment 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 tenderthe document in evidence, and
(b) has been prepared otherwise than in response to any
enquiry made or question put by a member or officer ofthe Authority, a member of the Garda Sı ´ocha´na, an
officer of the Commission or an authorised officer rela-tive to any matter the subject of those proceedings.
(4) In estimating the weight, if any, to be attached to a statement
admitted in evidence by virtue of this section, regard shall be had toall the circumstances from which any inference can reasonably bedrawn as to its accuracy or otherwise.
(5) Where a statement is admitted in evidence by virtue of this
section—
(a) any evidence which, if the person who made the statement
had been called as a witness, would have been admissibleas relevant to his or her credibility as a witness shall beadmissible for that purpose,
(b) evidence may, with the leave of the court, 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-examinationas relevant to his or her credibility but of which evidencecould 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 ornot) a statement which is inconsistent with it shall, if notalready admissible by virtue of any rule of law or otherenactment, be admissible for the purpose of showing thathe or she has contradicted himself or herself.
(6) Nothing in this section shall prejudice the admissibility in any
proceedings under this Act of any document, as evidence of any mat-ters stated in it, that is so admissible by virtue of any rule of law orother enactment.
14.—(1) Any person who is aggrieved in consequence of any
agreement, decision, concerted practice or abuse which is prohibitedunder section 4 or5shall have a right of action under this subsection
for relief against either or both of the following, namely—
(a) any undertaking which is or has at any material time been
a party to such an agreement, decision or concerted prac-tice or has done any act that constituted such an abuse,
(b) any director, manager or other officer of such an undertak-
ing, or a person who purported to act in any suchcapacity, who authorised or consented to, as the case maybe, the entry by the undertaking into, or the implemen-tation by it of, the agreement or decision, the engaging
15
Right of action for
breaches ofcompetition rules.[No. 14.] Competition Act, 2002. [2002.]
Pt.2 S.14
Appeal to High
Court againstdeclaration undersection 4(3) .
16by it in the concerted practice or the doing by it of the
act that constituted the abuse.
(2) The Authority shall have a right of action under this subsec-
tion in respect of an agreement, decision or concerted practice or anabuse which is prohibited under section 4 or5or by Article 81 or 82
of the Treaty.
(3) Subject to subsection (4) , an action under subsection (1) or(2)
may be brought in the Circuit Court or in the High Court.
(4) Where an action under subsection (1) is brought in the Circuit
Court any relief by way of damages, including exemplary damages,shall not, except by consent of the necessary parties in such form asmay be provided for by rules of court, be in excess of the limit ofthe jurisdiction of the Circuit Court in an action founded on tort.
(5) Without prejudice to subsection (7) , the following reliefs, or
any of them, may be granted to the plaintiff in an action under sub-
section (1) :
(a) relief by way of injunction or declaration,
(b) damages, including exemplary damages.
(6) Without prejudice to subsection (7) , relief by way of injunction
or declaration may be granted to the Authority in an action undersubsection (2) .
(7) Where in an action under subsection (1) or(2)it is finally
decided by the Court that an undertaking has, contrary to section 5 ,
abused a dominant position, the Court may, either at its own instanceor on the application of the Authority, by order either—
(a) require the dominant position to be discontinued unless con-
ditions specified in the order are complied with, or
(b) require the adjustment of the dominant position, in a man-
ner and within a period specified in the order, by a saleof assets or otherwise as the Court may specify.
(8) Where in an action under subsection (1) or(2)it is proved that
the act complained of was done by an undertaking it shall be pre-sumed, until the contrary is proved, that each (if any) director of theundertaking and person employed by it whose duties included mak-ing decisions that, to a significant extent, could have affected themanagement of the undertaking, and any other person who pur-ported to act in any such capacity at the material time, consented tothe doing of the said act.
(9) In an action under subsection (1) for damages, it shall be a
good defence to prove that the act complained of was done pursuantto a determination made or a direction given by a statutory body.
15.—(1) Any undertaking or association of undertakings con-
cerned or any other person aggrieved by the making of the particulardeclaration may appeal to the High Court against the making of adeclaration under section 4(3) .
(2) Such an appeal shall be made to the High Court within 28 days
after the date of the publication of the notice under section 4(4) in
relation to the declaration or such greater period as the High Court[2002.] Competition Act, 2002. [ No. 14.]
Pt.2 S.15 may, on application being made to it, specify for the purposes of this
subsection in relation to the particular appeal.
(3) On the hearing of an appeal under this section, the High Court
may confirm, amend or annul the declaration concerned.
(4) The High Court, on application being made to it, may by order
provide that, pending the hearing and determination of an appealunder this section in relation to a declaration, the declaration shallnot have effect for the purposes of section 4(2) .
PART 3
Mergers and Acquisitions
16.—(1) For the purposes of this Act, a merger or acquisition
occurs if—
(a) 2 or more undertakings, previously independent of one
another, merge, or
(b) one or more individuals or other undertakings who or which
control one or more undertakings acquire direct orindirect control of the whole or part of one or more otherundertakings, or
(c) the result of an acquisition by one undertaking (the ‘‘first
undertaking’’) of the assets, including goodwill, (or a sub-stantial part of the assets) of another undertaking (the‘‘second undertaking’’) is to place the first undertaking ina position to replace (or substantially to replace) thesecond undertaking in the business or, as appropriate, thepart concerned of the business in which that undertakingwas engaged immediately before the acquisition.
(2) For the purposes of this Act, control, in relation to an under-
taking, shall be regarded as existing if, by reason of securities, con-tracts or any other means, or any combination of securities, contractsor other means, decisive influence is capable of being exercised withregard to the activities of the undertaking and, in particular, by—
(a) ownership of, or the right to use all or part of, the assets of
an undertaking, or
(b) rights or contracts which enable decisive influence to be
exercised with regard to the composition, voting ordecisions of the organs of an undertaking.
(3) For the purposes of this Act, control is acquired by an individ-
ual or other undertaking if he or she or it—
(a) becomes holder of the rights or contracts, or entitled to use
the other means, referred to in subsection (2) ,o r
(b) although not becoming such a holder or entitled to use those
other means, acquires the power to exercise the rightsderived therefrom.
(4) The creation of a joint venture to perform, on an indefinite
basis, all the functions of an autonomous economic entity shall con-stitute a merger falling within subsection (1)(b) .
17Mergers and
acquisitions for thepurposes of Act.[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.16
Application of
sections 18 to22.
Obligation to notify
certain mergers andacquisitions.
18(5) In determining whether influence of the kind referred to in
subsection (2) is capable of being exercised regard shall be had to all
the circumstances of the matter and not solely to the legal effectof any instrument, deed, transfer, assignment or other act done ormade.
(6) For the purposes of this Act, a merger or acquisition shall not
be deemed to occur if—
(a) the person acquiring control is a receiver or liquidator acting
as such or is an underwriter or jobber acting as such, or
(b) all of the undertakings involved in the merger or acquisition
are, directly or indirectly, under the control of the sameundertaking, or
(c) control is acquired solely as a result of a testamentary dispo-
sition, intestacy or the right of survivorship under a jointtenancy, or
(d) control is acquired by an undertaking referred to in subsec-
tion (7) in the circumstances specified in subsection (8) .
(7) The undertaking mentioned in subsection (6)(d) is an under-
taking the normal activities of which include the carrying out oftransactions and dealings in securities for its own account or for theaccount of others.
(8) The circumstances mentioned in subsection (6)(d) are that the
control concerned is constituted by the undertaking’s holding, on atemporary basis, securities acquired in another undertaking and anyexercise by the undertaking of voting rights in respect of those securi-ties, whilst that control subsists, is for the purpose of arranging forthe disposal, within the specified period, of all or part of the otherundertaking or its assets or securities and not for the purpose ofdetermining the manner in which any activities of the other under-taking, being activities that could affect competition in markets forgoods or services in the State, are carried on.
(9) In subsection (8) ‘‘specified period’’ means—
(a) the period of 1 year from the date on which control of the
other undertaking was acquired, or
(b) if in a particular case the undertaking shows that it is not
reasonably possible to effect the disposal concernedwithin the period referred to in paragraph (a) , within
such longer period as the Authority determines andspecifies with respect to that case.
17.—Sections 18 to22are subject to section 23 (which provides for
additional procedures in the case of a media merger).
18.—(1) Where a merger or acquisition is agreed or will occur if
a public bid that is made is accepted and—
(a) in the most recent financial year—
(i) the world-wide turnover of each of 2 or more of the
undertakings involved in the merger or acquisition isnot less than \40,000,000,[2002.] Competition Act, 2002. [ No. 14.]
Pt.3 S.18 (ii) each of 2 or more of the undertakings involved in the
merger or acquisition carries on business in any partof the island of Ireland, and
(iii) the turnover in the State of any one of the undertak-
ings involved in the merger or acquisition is not lessthan \40,000,000,
or
(b) the merger or acquisition falls within a class of merger or
acquisition specified in an order under subsection (5) ,
each of the undertakings involved in the merger or acquisition shall
notify the Authority in writing of the proposal to put the merger oracquisition into effect, and provide full details thereof, within 1month after the conclusion of the agreement or the making of thepublic bid.
(2) For the purpose of subsection (1) —
(a) ‘‘turnover’’ does not include any payment in respect of
value-added tax on sales or the provision of services orin respect of duty of excise,
(b) subject to paragraph (c) an undertaking shall not be deemed
to be involved in a merger or acquisition by virtue onlyof its being the vendor of any securities or other propertyinvolved in the merger or acquisition, and
(c) in relation to a merger or acquisition that will occur by
reason of the acquisition concerned being an acquisitionreferred to in section 16(1)(c)—
(i)subparagraphs (i) and (iii) ofparagraph (a) ofsubsec-
tion (1) , in their application to the second-mentioned
undertaking in section 16(1)(c) , shall apply as if the
references in them to the world-wide turnover andturnover in the State were, in relation to that under-taking, references, respectively, to the world-wideturnover and turnover in the State generated fromthe assets of that undertaking that are the subject ofthe acquisition mentioned in section 16(1)(c) , and
(ii) notwithstanding paragraph (b) , that second-men-
tioned undertaking shall, for the purposes of para-
graph (a) or(b)ofsubsection (1) but not so as to
place on it an obligation to notify the Authority ofthe proposal to put the merger or acquisition intoeffect, be deemed to be involved in the merger oracquisition.
(3) If—
(a) 2 or more undertakings agree to a merger or acquisition, or
(b) a merger or acquisition will occur if a public bid that is made
is accepted,
being in either case a merger or acquisition to which subsection (1)
does not apply, any of the undertakings which have agreed to or areinvolved in the merger or acquisition may notify the Authority inwriting of the proposal to put the merger or acquisition into effect,
19[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.18
20and provide full details thereof, within 1 month after the conclusion
of the agreement or the making of the public bid.
(4) Nothing in this section or any other provision of this Act preju-
dices the operation of Council Regulation (EEC) No. 4064/89 on thecontrol of concentrations between undertakings.
(5) Where he or she is of opinion that the exigencies of the com-
mon good so warrant, the Minister may, after consultation with theAuthority, by order specify a class or classes of merger or acquisitionfor the purposes of subsection (1)(b) .
(6) The Minister may by order amend or revoke an order under
subsection (5) or a previous order under this subsection.
(7) Every order under this section shall have effect on and from
the date on which it is made and shall be laid before each House ofthe Oireachtas as soon as may be after it is made; if a resolutionconfirming the order is not passed by each such House within thenext 21 days after that House has sat after the order is laid before it,the order shall lapse, but without prejudice to the validity of anythingpreviously done thereunder.
(8) A notification in accordance with this section shall be
accompanied by such fee as may be prescribed and different fees maybe prescribed for different classes of notification; if the notification isnot accompanied by that fee the notification shall be invalid.
(9) Where there is a contravention of subsection (1) orsection
20(2) the person in control of an undertaking which has failed to
notify the Authority within the specified period or failed to supplythe information required within the period specified by the Auth-ority, as the case may be, shall be guilty of an offence and shall,subject to subsection (10) , be liable—
(a) on summary conviction, to a fine not exceeding \3,000,
(b) on conviction on indictment, to a fine not exceeding
\250,000.
(10) Subsection (9) operates so that if the contravention con-
cerned continues one or more days after the date of its first occur-rence, the person referred to in that subsection is guilty of a separateoffence under that subsection for each day that the contraventionoccurs; but in respect of the second or subsequent offence of whichhe or she is guilty by reason of that continued contravention, subsec-
tion (9) shall have effect as if—
(a)i n paragraph (a) ,‘ ‘\300’’ were substituted for ‘‘ \3,000’’,
(b)i n paragraph (b) ,‘ ‘\25,000’’ were substituted for
‘‘\250,000’’.
(11) For the purposes of subsection (9) the person in control of an
undertaking is—
(a) in the case of a body corporate, any officer of the body cor-
porate who knowingly and wilfully authorises or permitsthe contravention,
(b) in the case of a partnership, each partner who knowingly
and wilfully authorises or permits the contravention,[2002.] Competition Act, 2002. [ No. 14.]
Pt.3 S.18 (c) in the case of any other form of undertaking, any individual
in control of that undertaking who knowingly and wilfullyauthorises or permits the contravention.
(12) A notification for the purposes of subsection (1) or(3)shall
not be valid where any information provided or statement madeunder subsection (1) or(3)orsection 20(2) is false or misleading in
a material respect, and any determination under this Part made onfoot of such notification is void.
(13) The transmission to the Authority by the Commission of a
copy of a notification made to the Commission under Council Regu-lation (EEC) No. 4064/89 on the control of concentrations betweenundertakings shall constitute a notification under subsection (1) in
relation to the merger or acquisition concerned.
(14) Irrespective of the date on which the Commission transmits
a copy of the notification referred to in subsection (13) , the date of
receipt by the Authority of the Commission’s decision under CouncilRegulation No. 4064/89 in relation to the merger or acquisition, thesubject of the notification, shall be deemed to be the date of thenotification for the purposes of this Act.
19.—(1) A merger or acquisition to which paragraph (a) or(b)of
section 18(1) applies, or which is referred to in subsection (3) of
section 18 and has been notified to the Authority in accordance with
that subsection, shall not be put into effect until—
(a) subject to subsection (3) , the Authority, in pursuance of
section 21 or22, has determined that the merger or
acquisition may be put into effect, or
(b) the Authority has made a conditional determination in
relation to the merger or acquisition, or
(c) subject to subsection (4) , the period specified in subsection
(2)ofsection 21 has elapsed without the Authority having
informed the undertakings which made the notificationconcerned of the determination (if any) it has madeunder paragraph (a) or(b)of that subsection (2) ,o r
(d) subject to subsection (5) , 4 months after the appropriate
date have elapsed without the Authority having made adetermination under section 22 in relation to the merger
or acquisition,
whichever first occurs.
(2) Any such merger or acquisition which purports to be put into
effect, where that putting into effect contravenes subsection (1) ,i s
void.
(3) Notwithstanding subsection (1)(a) , the determination referred
to in that provision shall not operate to permit the merger or acquis-ition concerned to be put into effect if the merger or acquisition isnot put into effect before the expiry of the period of 12 months afterthe date on which the determination is made.
(4) Notwithstanding subsection (1)(c) , the failure by the Authority
to inform the undertakings concerned of the matter referred to inthat provision shall not operate to permit the merger or acquisitionconcerned to be put into effect if the merger or acquisition is not put
21Limitation on
merger oracquisition beingput into effect.[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.19
22into effect before the expiry of the period of 13 months after the
appropriate date.
(5) Notwithstanding subsection (1)(d) , the absence of a determi-
nation by the Authority in the circumstances referred to in that pro-vision shall not operate to permit the merger or acquisition con-cerned to be put into effect if the merger or acquisition is not putinto effect before the expiry of the period of 16 months after theappropriate date.
(6) In this section ‘‘appropriate date’’ means—
(a) unless paragraph (b) applies, the date of receipt by the
Authority of the notification of the merger or acquisitionconcerned under section 18 ,
(b) if the Authority has, under section 20(2) , made, within 1
month from the date of receipt by it of the notificationof the merger or acquisition concerned under section 18 ,
a requirement or requirements of one or more of theundertakings concerned—
(i) the date on which the requirement is complied with
or, in case 2 or more requirements are made andeach is complied with, whichever of the dates onwhich the requirements are complied with is the lateror latest,
(ii) where the requirement is not complied with or each
of the 2 or more requirements is not complied with,the date immediately following the expiry of the per-iod specified in the requirement or, as the case may
be, the date immediately following the expiry ofwhichever of the respective periods specified in therequirements is the last to expire, or
(iii) in case 2 or more requirements are made but one or
more but not all of them are complied with, the lateror latest of the following dates, namely the dates pro-vided by applying—
(I)subparagraph (i) to the requirement or require-
ments complied with, and
(II) subparagraph (ii) to the requirement or require-
ments not complied with.
(7) The reference in the definition of ‘‘appropriate date’’ in sub-
section (6) to the period specified in a requirement is a reference to
the period specified in the requirement as being the period withinwhich the information concerned shall be supplied.
(8) For the purpose of the reference in subsection (6) , and in any
other provision of this Act, to the date on which the Authorityreceives a notification under section 18 , if a single notification is not
made by all the undertakings concerned, the said reference shall beconstrued as a reference to the later or latest of the dates on whicha notification of the merger or acquisition concerned under section
18is received by the Authority.
(9)Subsection (8) is without prejudice to section 18(14) .[2002.] Competition Act, 2002. [ No. 14.]
20.—(1) In respect of a notification received by it, the Authority—
(a) shall, unless the circumstances involving the merger or
acquisition are such that the Authority considers it wouldnot be in the public interest to comply with thisparagraph—
(i) cause a notice of the notification to be published
within 7 days after the date of receipt of it,
(ii) consider all submissions made, whether in writing or
orally, by the undertakings involved in the merger oracquisition or by any individual or any otherundertaking,
(b) may enter into discussions with the undertakings involved
in the merger or acquisition or with any individual or anyother undertaking with a view to identifying measureswhich would ameliorate any effects of the merger oracquisition on competition in markets for goods or ser-vices, and
(c) shall form a view as to whether the result of the merger or
acquisition would be to substantially lessen competitionin markets for goods or services in the State.
(2) Where the Authority is of the opinion that, in order to consider
for the purposes of this Part a merger or acquisition, it requires furtherinformation it may, by notice in writing served on the undertaking,require any one or more of the undertakings concerned to supply to itwithin a specified period specified information, and an undertaking ofwhom such a requirement is made shall comply with it.
(3) In the course of the Authority’s activities under subsection
(1)(b) , any of the undertakings involved in the merger or acquisition
concerned may submit to the Authority proposals of the kind men-tioned in subsection (4) with a view to the proposals becoming bind-
ing on it or them if the Authority takes the proposals into accountand states in writing that the proposals form the basis or part of thebasis of its determination under section 21 or22in relation to the
merger or acquisition.
(4) The proposals referred to in subsection (3) are proposals with
regard to the manner in which the merger or acquisition may be put
into effect or to the taking, in relation to the merger or acquisition,of any other measures referred to in subsection (1)(b) .
21.—(1) In this section ‘‘appropriate date’’ has the same meaning
as it has in section 19 .
(2) In respect of a notification received by it, the Authority shall,
within 1 month after the appropriate date, inform the undertakingswhich made the notification and any individual or any other under-taking from whom a submission concerning the notification wasreceived of whichever of the following determinations it has made,namely—
(a) that, in its opinion, the result of the merger or acquisition
will not be to substantially lessen competition in marketsfor goods or services in the State and, accordingly, thatthe merger or acquisition may be put into effect, or
23Pt.3
Examination by the
Authority ofnotification.
Determination of
issues concernedwithout fullinvestigation, etc.[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.21
Determination of
issues concerned onfoot of fullinvestigation.
24(b) that it intends to carry out an investigation under section 22
in relation to the merger or acquisition.
(3) Where the Authority makes a determination referred to in
paragraph (a) or(b)ofsubsection (2) , it shall publish that determi-
nation, with due regard for commercial confidentiality, within 2months after the making of the determination.
(4) If any of the undertakings which have made the notification
concerned submits to the Authority proposals to which section 20(3)
applies, then subsection (2) shall have effect as if ‘‘45 days’’ were
substituted for ‘‘1 month’’ in that subsection.
22.—(1) In this section ‘‘appropriate date’’ has the same meaning
as it has in section 19 .
(2) Having considered a notification made to it, the Authority
may decide that it shall carry out an investigation (in this sectionreferred to as a ‘‘full investigation’’) in relation to the merger oracquisition concerned.
(3) On completion of a full investigation in relation to the merger
or acquisition concerned, the Authority shall make whichever of thefollowing determinations it considers appropriate, namely that themerger or acquisition—
(a) may be put into effect,
(b) may not be put into effect, or
(c) may be put into effect subject to conditions specified by it
being complied with,
on the ground that the result of the merger or acquisition will or will
not, as the case may be, be to substantially lessen competition inmarkets for goods or services in the State or, as appropriate, will notbe to substantially lessen such competition if conditions so specifiedare complied with.
(4) Where the Authority makes a determination under subsection
(3), it shall reduce the determination to writing (and the determi-
nation in that form is referred to in paragraph (a) and subsection (7)
as a ‘‘written determination’’) and—
(a) furnish to the undertakings which made the notification a
copy of the written determination within 4 months afterthe appropriate date, and
(b) publish the determination, with due regard for commercial
confidentiality, within 1 month after the making of thedetermination.
(5) A determination under subsection (3)(c) that the merger or
acquisition may be put into effect subject to specified conditionsbeing complied with is referred to in this section as a ‘‘conditionaldetermination’’.
(6) A conditional determination shall include a condition requir-
ing the merger or acquisition to be put into effect within 12 monthsafter the making of the determination.[2002.] Competition Act, 2002. [ No. 14.]
Pt.3 S.22 (7) A written determination under subsection (3) shall state the
reasons for its making and shall include a report in relation to thefull investigation.
(8) Before making a determination under subsection (3) , the
Authority shall have regard to any relevant international obligationsof the State.
23.—(1) Within 5 days after the receipt by it of a notification in
relation to a media merger, the Authority shall—
(a) forward a copy of the notification to the Minister, and
(b) notify the undertakings involved in the merger that it con-
siders the merger to be a media merger.
(2) If the Authority makes a determination referred to in section
21(2)(a) in relation to a media merger it shall, immediately after
doing so, inform the Minister of that fact and the Minister may, not-withstanding that determination, within 10 days after the date onwhich that determination is made, direct the Authority to carry outan investigation under section 22 in relation to the merger.
(3) Upon such a direction being given—
(a) the determination referred to in section 21(2)(a) shall not
operate to permit the media merger to be put into effect,and
(b) the Authority shall notify the undertakings involved in the
merger that an investigation under section 22 in relation
to the merger will be carried out pursuant to thedirection.
(4) Where the Authority makes a determination under paragraph
(a)or(c)ofsubsection (3) ofsection 22 in relation to a media merger
it shall, immediately after doing so, inform the Minister of the deter-mination and the Minister may within 30 days after the date of themaking of that determination, notwithstanding that determination,having regard to, and only to, the relevant criteria, by orderprovide—
(a) that the merger may be put into effect,
(b) that the merger may be put into effect subject to specified
conditions being complied with, or
(c) that the merger may not be put into effect.
(5) The Minister shall publish, with due regard for commercial
confidentiality, a statement of the reasons for his or her making suchan order within 2 weeks after the date on which the order is made.
(6) For the purpose of the exercise of the power under subsection
(4), the Minister may consider such submissions or observations from
persons claiming to be interested in the matter as the Minister thinksproper.
(7) In addition to the functions conferred on it by section 22 in
relation to a merger or acquisition, the Authority shall, in dealingwith a merger or acquisition under that section that is a mediamerger, form an opinion as to how the application of the relevant
25Provisions with
regard to mediamergers.[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.23
26criteria should affect the exercise by the Minister of his or her powers
under subsection (4) in relation to the merger.
(8) The Authority shall inform the Minister of the opinion it has
so formed on request being made by the Minister of it to do so.
(9) The following provisions shall have effect on account of the
additional procedures provided by the foregoing provisions inrelation to media mergers:
(a) a media merger which could otherwise be put into effect
upon a determination referred to in section 21(2)(a) being
made in relation to it may not be put into effect until theexpiry of 10 days after the date on which that determi-nation is made,
(b) a determination under section 22 in relation to a media
merger shall not have effect until the expiry of 30 daysafter the date on which that determination is made andthen only if, within that period, the Minister has not madean order under subsection (4) in relation to the merger
or has stated in writing that he or she does not proposemaking such an order in relation to the merger.
(10) In this section—
‘‘broadcasting service’’ means a service which comprises a compi-
lation of programme material of any description and which is trans-mitted or relayed by means of wireless telegraphy, a cable system ora multipoint microwave distribution system, a satellite device or anyother transmission system, directly or indirectly for reception by thegeneral public, whether that material is actually received or not, andincludes a sound broadcasting service within the meaning of theRadio and Television Act, 1988, but does not include any such ser-vice (whether involving audio-visual material or audio material) thatis provided by means of the system commonly known as the Internet;
‘‘cable system’’ has the same meaning as it has in the Broadcasting
Act, 2001;
‘‘media business’’ means—
(a) a business of the publication of newspapers or periodicals
consisting substantially of news and comment on currentaffairs,
(b) a business of providing a broadcasting service, or
(c) a business of providing a broadcasting services platform;
‘‘media merger’’ means a merger or acquisition in which one or more
of the undertakings involved carries on a media business in the State;
‘‘programme material’’ has the same meaning as it has in the Broad-
casting Act, 2001;
‘‘providing a broadcasting service’’ shall be construed in accordance
with subsection (11) ;
‘‘providing a broadcasting services platform’’ shall be construed in
accordance with subsection (12) ;
‘‘relevant criteria’’ means the following matters—[2002.] Competition Act, 2002. [ No. 14.]
Pt.3 S.23 (a) the strength and competitiveness of media businesses
indigenous to the State,
(b) the extent to which ownership or control of media busi-
nesses in the State is spread amongst individuals andother undertakings,
(c) the extent to which ownership and control of particular
types of media business in the State is spread amongstindividuals and other undertakings,
(d) the extent to which the diversity of views prevalent in Irish
society is reflected through the activities of the variousmedia businesses in the State, and
(e) the share in the market in the State of one or more of the
types of business activity falling within the definition of‘‘media business’’ in this subsection that is held by any ofthe undertakings involved in the media merger con-cerned, or by any individual or other undertaking who orwhich has an interest in such an undertaking.
(11) A reference in this section to providing a broadcasting service
shall be construed as a reference to the doing of either or both ofthe following:
(a) supplying a compilation of programme material for the pur-
pose of its being transmitted or relayed as a broadcastingservice,
(b) transmitting or relaying as a broadcasting service pro-
gramme material.
(12) A reference in this section to providing a broadcasting ser-
vices platform shall be construed as a reference to the transmittingor re-transmitting of programme material by means of wireless tel-egraphy, a cable system or a multipoint microwave distribution sys-tem, a satellite device or any other transmission system.
24.—(1) An appeal may be made to the High Court against a
determination of the Authority under paragraph (b) or(c)ofsection
22(3) .
(2)Subsection (1) does not apply to a determination made in
relation to a media merger unless it is a determination that has effectby virtue of section 23(9) or25(2) .
(3) An appeal under this section—
(a) may be made by any of the undertakings which made the
notification in relation to the merger or acquisition con-cerned, and
(b) shall be made within 1 month after the date on which the
undertaking is informed by the Authority of the determi-nation concerned or, in case the determination is one inrelation to a media merger, after the expiry of the periodspecified in section 23(9) .
(4) Any issue of fact or law concerning the determination con-
cerned may be the subject of an appeal under this section but, withrespect to an issue of fact, the High Court, on the hearing of the
27Appeal to the High
Court againstdetermination ofthe Authority.[No. 14.] Competition Act, 2002. [2002.]
Pt.3 S.24
Laying of order
under section 23(4)
before Houses ofthe Oireachtas.
Enforcement of
certaincommitments,determinations andorders.
28appeal, may not receive evidence by way of testimony of any witness
and shall presume, unless it considers it unreasonable to do so, thatany matters accepted or found to be fact by the Authority in exercis-ing the relevant powers under section 22 were correctly so accepted
or found.
(5) Notwithstanding subsection (4) , the High Court, on the hear-
ing of an appeal under this section, may receive evidence by way ofthe testimony of one or more witnesses if it considers it wasunreasonable for the Authority to have accepted or found as a factany matter concerned.
(6) Without limiting the exercise of the judicial function with
respect to a particular case, it shall be the duty of the High Court, inso far as it is practicable, to hear and determine an appeal under thissection within 2 months after the date on which the appeal is madeto it.
(7) On the hearing of an appeal under this section, the High Court
may, as it thinks fit—
(a) annul the determination concerned,
(b) confirm the determination concerned, or
(c) confirm the determination concerned subject to such modifi-
cations of it as the court determines and specifies in itsdecision.
(8) The High Court may, where it appears to the court that the
circumstances so warrant, or shall, where the operation of section
25(1) results in an order under section 23(4) being annulled after the
expiry of the period hereafter mentioned, extend the period men-tioned in subsection (3)(b) in which an appeal under this section may
be made to it.
(9) An appeal to the Supreme Court against a decision of the High
Court under any of the foregoing provisions of this section shall lieonly on a question of law.
25.—(1) An order under section 23(4) shall be laid before each
House of the Oireachtas as soon as may be after it is made and, if aresolution annulling the order is passed by either such House withinthe next 21 days on which that House has sat after the order is laidbefore it, the order shall be annulled accordingly.
(2) If an order under section 23(4) is annulled pursuant to subsec-
tion (1) the determination made by the Authority under section 22(3)
in relation to the media merger concerned shall, notwithstandingsection 23(9) but without prejudice to the right of appeal under
section 24 , have effect.
26.—(1) In this section—
‘‘commitment’’ means an obligation on the part of an undertaking
arising by virtue of a proposal put forward by it being the subject ofa statement in writing by the Authority such as is mentioned insection 20(3) ;
‘‘determination’’ means a determination of the Authority made
under section 21 or22;[2002.] Competition Act, 2002. [ No. 14.]
Pt.3 S.26 ‘‘order’’ means an order made by the Minister under section 23(4) .
(2) It shall be lawful for a court of competent jurisdiction to grant
an injunction on the motion of the Authority or of any other personto enforce compliance with the terms of a commitment, a determi-nation or an order, for the time being in force.
(3)Subsection (2) shall not affect any other right of the Authority
or other person to bring proceedings (whether civil or criminal) forthe enforcement of compliance with the terms of a commitment, adetermination or an order.
(4) A person who contravenes (whether by act or omission) a pro-
vision of a commitment, a determination or an order for the timebeing in force shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding \3,000 or to
imprisonment for a term not exceeding 6 months or toboth such fine and such imprisonment, or
(b) on conviction on indictment, to a fine not exceeding \10,000
or to imprisonment for a term not exceeding 2 years orto both such fine and such imprisonment.
(5) Every person who aids, abets or assists another person, or con-
spires with another person, to do anything (whether by way of act orof omission) the doing of which is an offence by virtue of subsection
(4)shall himself or herself be guilty of an offence under this section
and shall be liable to be proceeded against and punished as if he orshe were guilty of the first-mentioned offence.
(6) Where an offence under subsection (4) or(5)which is commit-
ted by a body corporate or by a person purporting to act on behalf
of a body corporate or an unincorporated body of persons is provedto have been so committed with the consent or connivance of, or tobe attributable to any neglect on the part of, any person who is adirector, manager, secretary, member of the committee of manage-ment or other controlling authority of any such body, or who is anyother similar officer of any such body, that person shall also be guiltyof an offence and shall be liable to be proceeded against and pun-ished as if he or she was guilty of the first-mentioned offence.
(7)Subsections (4) ,(5)and(6)operate so that if the contravention
concerned continues one or more days after the date of its first occur-rence, the person referred to in the subsection concerned is guiltyof a separate offence under that subsection for each day that thecontravention occurs; but in respect of the second or subsequentoffence of which he or she is guilty by reason of that continued con-travention, subsection (4) shall have effect as if—
(a)i n paragraph (a) ,‘ ‘\300’’ were substituted for ‘‘ \3,000’’, and
(b)i n paragraph (b) ,‘ ‘\1,000’’ were substituted for ‘‘ \10,000’’.
(8) Summary proceedings in relation to an offence under this
section may be brought by the Authority.
(9) Notwithstanding section 10(4) of the Petty Sessions (Ireland)
Act, 1851, summary proceedings for an offence under this sectionmay be instituted within 12 months after the day on which theoffence was committed.
29[No. 14.] Competition Act, 2002. [2002.]
Pt.3
Alteration of
certain monetaryamounts.
Relationship
between this Partand otherenactments.
The Competition
Authority.
3027.—(1) The Minister may make an order once, and once only, in
each year, beginning with the year following the year in which thissection is commenced, amending subsection (1)(a) ofsection 18 by
substituting for the monetary amount standing specified in subpara-
graph (i) or(iii) of that provision for the time being a monetary
amount that is greater than that amount.
(2) In making an order under subsection (1) , the Minister shall
have regard to, and only to, such economic data as the Minister con-siders to be relevant to the purpose.
(3) Every order under this section shall have effect on and from
the date on which it is made and shall be laid before each House ofthe Oireachtas as soon as may be after it is made; if a resolutionconfirming the order is not passed by each such House within thenext 21 days after that House has sat after the order is laid before it,the order shall lapse, but without prejudice to the validity of anythingpreviously done thereunder.
28.—(1) Nothing in an enactment specified in subsection (2) preju-
dices the operation of this Part.
(2) The enactment mentioned in subsection (1) is an enactment
(other than an enactment contained in this Part) that requires, inrespect of the doing of the act or acts that comprise a merger or
acquisition to which paragraph (a) or(b)ofsection 18(1) applies, the
doing of that act or those acts to be either—
(a) sanctioned, whether such sanctioning takes the form of the
making by a court of an order or the granting by a personof any other form of consent, or
(b) the subject of any form of registration of a resolution passed
by one or more undertakings.
(3) Neither the giving of a sanction such as is referred to in subsec-
tion (2)(a) nor the carrying out of a registration such as is referred
to in subsection (2)(b) shall be done or completed in relation to a
merger or acquisition to which paragraph (a) or(b)ofsection 18(1)
applies unless and until no step remains to be taken, or power of anyperson or court or of either House of the Oireachtas remains to beexercised, under this Part, being a step or power the taking orexercising of which would, by virtue of this Part, prevent the mergeror acquisition from being put into effect.
PART 4
The Competition Authority
29.—(1) Notwithstanding the repeals effected by section 48 , the
Authority shall continue in being.
(2) The Authority shall be a body corporate with perpetual suc-
cession and power to sue and be sued in its own name and, with theconsent of the Minister, to acquire, hold and dispose of land or aninterest in or rights over or in respect of land or any other property.
(3) The Authority shall be independent in the performance of its
functions.[2002.] Competition Act, 2002. [ No. 14.]
30.—(1) The Authority shall have, in addition to the functions
assigned to it by any other provision of this Act or of any otherenactment, the following functions:
(a) to study and analyse any practice or method of competition
affecting the supply and distribution of goods or the pro-vision of services or any other matter relating to compe-tition (which may consist of, or include, a study or analy-sis of any development outside the State);
(b) to carry out an investigation, either on its own initiative or
in response to a complaint made to it by any person, intoany breach of this Act that may be occurring or hasoccurred;
(c) to advise the Government, Ministers of the Government and
Ministers of State concerning the implications for compe-tition in markets for goods and services of proposals forlegislation (including any instruments to be made underany enactment);
(d) to publish notices containing practical guidance as to how
the provisions of this Act may be complied with;
(e) to advise public authorities generally on issues concerning
competition which may arise in the performance of theirfunctions;
(f) to identify and comment on constraints imposed by any
enactment or administrative practice on the operation ofcompetition in the economy;
(g) to carry on such activities as it considers appropriate so as
to inform the public about issues concerning competition.
(2) The Minister may request the Authority to carry out a study
or analysis of any practice or method of competition affecting thesupply and distribution of goods or the provision of services or anyother matter relating to competition and submit a report to the Mini-ster in relation to the study or analysis; the Authority shall complywith such a request within such period as the Minister may specifyin the request.
(3) The Authority may delegate the performance of any of the
functions assigned to it by this Act or any other enactment to anymember of the Authority or to any member of its staff.
(4) Notwithstanding subsection (3) , the Authority may not del-
egate the performance of the following functions—
(a) functions under section 4(3) ,
(b) the power to initiate proceedings for an offence under
section 6 or7, for relief under section 14 or for an offence
under section 26 ,
(c) the power to make determinations under section 22 ,
(d) functions under sections 33 ,39,42and 43.
31Pt.4
Functions of the
Authority.[No. 14.] Competition Act, 2002. [2002.]
Pt.4
Investigations of the
Authority —general provisions.
Prohibition on
unauthoriseddisclosure ofinformation.
3231.—(1) The Authority may, for the purposes of its functions
under this Act, do all or any of the following things:
(a) summon witnesses to attend before it,
(b) examine on oath (which the Authority, or any member of
staff of the Authority duly authorised by the Authority,is by this section authorised to administer) the witnessesattending before it,
(c) require any such witness to produce to the Authority any
document in his or her power or control.
(2) A witness before the Authority pursuant to subsection (1)(a) ,
shall be entitled to the same immunities and privileges as if he or shewere a witness before the High Court.
(3) A summons to be issued for the purposes of subsection (1)(a)
shall be signed by a member of the Authority.
(4) Any person who—
(a) on being duly summoned as a witness before the Authority
makes default in attending, or
(b) being in attendance as a witness refuses to take an oath
legally required by the Authority to be taken, or toproduce any document in his or her power or control leg-ally required by the Authority to be produced by him orher, or to answer any question to which the Authoritymay legally require an answer, or
(c) does any other thing which, if the Authority were a court
having power to commit for contempt of court, would becontempt of such court,
shall be guilty of an offence and shall be liable on summary convic-
tion to a fine not exceeding \3,000 or to imprisonment for a term
not exceeding 6 months or to both such fine and such imprisonment.
32.—(1) A person shall not disclose information that—
(a) comes into the possession of the Authority by virtue of the
exercise by it of its powers under this Act to obtain infor-mation, or
(b) comes into the possession of the Authority in the course of
a meeting of the Authority held in private at which he orshe is present.
(2)Subsection (1) shall not apply to—
(a) a communication made by a member of the Authority, a
member of staff of the Authority or an authorised officerin the performance of any of his or her functions underthis Act, being a communication the making of which wasnecessary for the performance by the member or officerof any such function, or
(b) the disclosure of information in a report of the Authority or
for the purpose of legal proceedings under this Act or[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.32 pursuant to an order of a court of competent jurisdiction
for the purposes of any proceedings in that court, or
(c) the disclosure by a member of the Authority, a member of
staff of the Authority or an authorised officer to anymember of the Garda Sı ´ocha´na of information which, in
the opinion of the member or member of staff of theAuthority or authorised officer, may relate to the com-mission of an offence (whether an offence under this Actor not).
(3) If any person contravenes subsection (1) he or she shall be
guilty of an offence and shall be liable on summary conviction to afine not exceeding \3,000 or to imprisonment for a term not
exceeding 6 months or to both such fine and such imprisonment.
(4) A person who suffers loss or harm as a result of a contra-
vention of subsection (1) shall be entitled to bring proceedings
against the person referred to in subsection (5) in any court of com-
petent jurisdiction seeking one, or more than one as appropriate, ofthe following reliefs in respect of that loss or harm:
(a) relief by way of injunction or declaration,
(b) damages.
(5) The person mentioned in subsection (4) is—
(a) if the person who contravened subsection (1) is other than
a member or a member of staff of the Authority or anauthorised officer, that person,
(b) if the person who contravened subsection (1) is a member
or a member of staff of the Authority or an authorisedofficer and the relief sought, or to the extent that therelief sought, in the proceedings is—
(i) relief referred to in subsection (4)(a) , that person,
(ii) relief referred to in subsection (4)(b) , the Authority.
(6) An action under subsection (4) shall be regarded as an action
founded on tort.
(7) The Authority shall be entitled, in any proceedings, to the
same privilege in respect of a communication to or by the Authority,any member of the Authority or any member of staff of the Auth-ority as any Minister of the Government.
33.—(1) As soon as practicable after the commencement of this
section, and thereafter within 6 months before each third anniversaryof such commencement, the Authority shall prepare and submit tothe Minister a plan (in this section referred to as a ‘‘strategic plan’’)for the ensuing 3 year period.
(2) A strategic plan shall—
(a) comprise the key objectives, outputs and related strategies,
including use of resources, of the Authority,
(b) be prepared in a form and manner in accordance with any
directions issued from time to time by the Minister, and
33Strategic plans and
work programmes.[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.33
Provisions for co-
operation betweenthe Authority andstatutory bodies.
34(c) have regard to the need to ensure the most beneficial, effec-
tive and efficient use of the resources of the Authority.
(3) The Minister shall, as soon as practicable after a strategic plan
has been submitted to him or her under subsection (1) , cause a copy
of it to be laid before each House of the Oireachtas.
(4) The Authority shall prepare and submit to the Minister by the
end of each year a programme of the activities it proposes to carryon in the following year.
(5) Such a programme shall be prepared in such form and manner
as may be directed by the Minister.
34.—(1) There shall, as soon as practicable after the commence-
ment of this section, be entered into between the Authority andevery one of the statutory bodies one or more agreements for thepurposes of—
(a) facilitating co-operation between the Authority and the
statutory bodies in the performance of their respectivefunctions in so far as they relate to issues of competitionbetween undertakings,
(b) avoiding duplication of activities by the Authority and any
of the statutory bodies, being activities involving thedetermination of the effects on competition of any actdone, or proposed to be done, and
(c) ensuring, as far as practicable, consistency between decisions
made or other steps taken by the Authority and the statu-tory bodies in so far as any part of those decisions orsteps consists of or relates to a determination of any issueof competition between undertakings,
and each such agreement that is entered into is referred to in this
section as a ‘‘co-operation agreement’’.
(2) It shall not be necessary, for the purposes of subsection (1) ,
that the same statutory bodies be party to each agreement enteredinto with the Authority in pursuance of that subsection.
(3) A co-operation agreement shall include—
(a) a provision enabling each party to furnish to another party
information in its possession if the information isrequired by that other party for the purpose of the per-formance by it of any of its functions,
(b) a provision enabling each party to forbear to perform any
of its functions in relation to a matter in circumstanceswhere it is satisfied that another party is performing func-tions in relation to that matter, and
(c) a provision requiring each party to consult with any other
party before performing any functions in circumstanceswhere the respective exercise by each party of the func-tions concerned involves the determination of issues ofcompetition between undertakings that are identical toone another or fall within the same category of such anissue, being a category specified in the agreement.[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.34 (4) A co-operation agreement may be varied by the parties
concerned.
(5) The Minister and the relevant Minister or Ministers shall,
within 6 months after the commencement of this section, each befurnished by one of the parties concerned with a copy of every co-operation agreement that has been entered into.
(6) A co-operation agreement, or any variation made to it, shall
be in writing and, as soon as practicable after the making of theagreement or variation, notice of its making shall be published bythe parties in such manner as they think fit.
(7) Such a notice shall state that a copy of the agreement con-
cerned (including the agreement as varied) may be inspected at suchplace, or by such means as is specified in the notice and that a copyof the agreement may be purchased from the parties in such manneras is so specified (and a copy of the agreement shall, accordingly, bemade available for such inspection and be made available for suchpurchase (at a cost not exceeding the reasonable cost of making acopy or, where appropriate, such cost and the amount of any postageinvolved)).
(8) Without prejudice to subsection (9) , nothing in any enactment
shall be construed as preventing the provisions of a co-operationagreement from having effect in accordance with their terms.
(9) If information is furnished by one party to another party pur-
suant to a provision of a co-operation agreement of the kind referredto in subsection (3)(a) , the provisions of any enactment concerning
the disclosure of that information by the first-mentioned party shallapply to the second-mentioned party with respect to thatinformation.
(10) A failure by the Authority or a statutory body to comply
with a provision of a co-operation agreement shall not invalidate theexercise by it of any power.
(11) The Minister may, after consultation with the other Minister
of the Government concerned, by order—
(a) amend column (1) ofSchedule 1 by adding to, or deleting
from, that column any person, and
(b) in consequence of that amendment, amend column (2) of
that Schedule by adding to, or deleting from, that columnthe title of a Minister of the Government, being the Mini-ster of the Government who has responsibility for thefirst-mentioned person.
(12) In this section—
‘‘issue of competition between undertakings’’ includes an issue of
competition between undertakings that arises generally in the sectoror sectors of activity in relation to which the Authority or the statu-tory body may exercise powers and such an issue that falls, or couldfall, to be the subject of the exercise by the Authority or the statutorybody of powers in particular circumstances;
‘‘party’’ means a party to a co-operation agreement and a reference
to another party (whether that expression or the expression ‘‘theother party’’ is used) shall, where there are 2 or more other partiesto the agreement, be construed as a reference to one or more ofthose other parties or each of them, as appropriate;
35[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.34
Membership.
36‘‘relevant Minister’’ means the Minister of the Government specified
incolumn (2) ofSchedule 1 opposite the mention in column (1) of
that Schedule of a person who is a party to a co-operation agreementproposed to be notified under subsection (5) .
35.—(1) The membership of the Authority shall consist of—
(a) a chairperson and such number of other whole-time
members, not being less than 2 nor more than 4, as theMinister determines and appoints (but that limitation onnumbers does not affect an appointment under paragraph
(b)),
(b) in any case where it appears to the Minister that a member
referred to in paragraph (a) is temporarily unable to dis-
charge his or her duties, a whole-time member appointedby the Minister, for all or part of that period of inability,to act in that member’s place, and
(c) such number of part-time members as the Minister may
determine and appoint.
(2) Without prejudice to subsection (1)(b) , where it appears to the
Minister that the chairperson of the Authority is temporarily unableto discharge his or her duties, the Minister may authorise anotherwhole-time member to act, for all or part of that period of inability,in the chairperson’s place and for so long as such a member is soauthorised references in this Act to the chairperson of the Authorityshall be construed as including references to that member.
(3) Subject to subsection (4) , sections 15 and 17 of the Civil Ser-
vice Commissioners Act, 1956, shall apply, with any necessary modi-fications, in relation to appointments of members of the Authorityas they apply in relation to appointments to positions in the civilservice and, accordingly, the Minister shall not appoint a person tobe such a member unless the Civil Service Commissioners, afterholding a competition under that section 15, have, under that section17, selected the person for appointment and advised the Ministeraccordingly.
(4)Subsection (3) does not apply to an appointment under para-
graph (b) or(c)ofsubsection (1) or the reappointment under that
subsection of a person as a member of the Authority (including aperson who was such a member immediately before the commence-ment of this section).
(5) An appointment under paragraph (b) or(c)ofsubsection (1)
shall not be made unless the proposed appointee possesses, in theopinion of the Minister, sufficient expertise in or experience of oneor more of the following areas, namely — law, economics, publicadministration, consumer affairs, or business generally.
(6) The term of office of a member of the Authority shall be fixed
by the Minister when appointing him or her and shall not exceed 5years.
(7) An outgoing member of the Authority shall be eligible for
reappointment.
(8) Each member of the Authority shall hold office on such con-
ditions as may be fixed by the Minister after consultation with theMinister for Finance.[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.35 (9) A member of the Authority may be paid such remuneration,
if any, as the Minister with the consent of the Minister for Financedetermines.
(10) Subject to subsection (3) , the Civil Service Commissioners
Act, 1956, and the Civil Service Regulation Acts, 1956 and 1958, shallnot apply to the office of a member.
(11) If a member of the Authority is personally interested in a
particular matter with which the Authority is dealing, he or she shallinform the Minister accordingly and shall not act as a member duringthe consideration of the matter.
(12) The Minister may remove from office a member of the Auth-
ority who has become incapable through ill-health of performingefficiently his or her duties as such member or whose removalappears to the Minister to be necessary in the interests of the effec-tive and economical performance of the functions of the Authority.
(13) Where the Minister removes a member of the Authority from
office, he or she shall lay before each House of the Oireachtas astatement in writing of the reasons for such removal.
(14) A member of the Authority may resign his or her office.
36.—(1) Where a member of the Authority is—
(a) nominated as a member of Seanad E ´ireann, or
(b) elected as a member of either House of the Oireachtas or
of the European Parliament, or
(c) regarded pursuant to Part XIII of the Second Schedule to
the European Parliament Elections Act, 1997, as havingbeen elected to the European Parliament,
he or she shall thereupon cease to be a member of the Authority.
(2) A person who is for the time being entitled—
(a) under the Standing Orders of either House of the
Oireachtas to sit therein, or
(b) under the rules of procedures of the European Parliament
to sit therein,
shall, while so entitled, be disqualified from being a member of the
Authority.
(3) A member of the Authority shall be disqualified from holding
and shall cease to hold office if he or she is adjudicated bankrupt ormakes a composition or arrangement with his or her creditors, or issentenced by a court of competent jurisdiction to suffer any term ofimprisonment.
37.—(1) The quorum for a meeting of the Authority shall be 3
members unless the Minister otherwise authorises.
(2) At a meeting of the Authority—
37Disqualification.
Meetings and
business.[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.37
Functions and
accountability ofchairperson.
38(a) the chairperson of the Authority shall, if present, be chair-
person of the meeting,
(b) if and so long as the chairperson of the Authority is not
present or if the office of chairperson is vacant, themembers of the Authority who are present shall chooseone of their number to be chairperson of the meeting.
(3) Every question at a meeting of the Authority shall be deter-
mined by a majority of the votes of the members present and votingon the question and, in the case of an equal division of votes, thechairperson of the meeting shall have a second or casting vote.
(4) The Authority may act notwithstanding vacancies in its
membership.
(5) Subject to this Act, the Authority may regulate its own
procedures.
38.—(1) The chairperson of the Authority shall manage and con-
trol generally the staff, administration and business of the Authority.
(2) The chairperson of the Authority shall, whenever required by
the Committee of Da ´il E´ireann established under the Standing
Orders of Da ´il E´ireann to examine and report to Da ´il E´ireann on the
appropriation accounts and reports of the Comptroller and AuditorGeneral, give evidence to that committee on—
(a) the regularity and propriety of the transactions recorded or
required to be recorded in any book or other record ofaccount subject to audit by the Comptroller and AuditorGeneral which the chairperson or the Authority isrequired by or under statute to prepare,
(b) the economy and efficiency of the Authority in the use of
its resources,
(c) the systems, procedures and practices employed by the
Authority for the purpose of evaluating the effectivenessof its operations, and
(d) any matter affecting the Authority referred to in a special
report of the Comptroller and Auditor General undersection 11(2) of the Comptroller and Auditor General(Amendment) Act, 1993, or in any other report of theComptroller and Auditor General (in so far as it relates
to a matter specified in paragraph (a) ,(b)or(c)) that is
laid before Da ´il E´ireann.
(3) In the performance of duties under subsection (2) , the chair-
person of the Authority shall not question or express an opinion onthe merits of any policy of the Government or a Minister of theGovernment or on the merits of the objectives of such a policy.
(4) The chairperson of the Authority shall, whenever required to
do so by—
(a) a committee appointed by either House of the Oireachtas,
the business of which committee includes examination ofpolicy relating to competition, or[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.38 (b) a committee appointed jointly by both Houses of the
Oireachtas, the business of which committee includesexamination of such policy,
attend before such committee to discuss the general activities of the
Authority.
39.—(1) The Authority may appoint such, and such number of,
persons to be members of the staff of the Authority as it may deter-mine with the consent of the Minister and the Minister for Finance.
(2) A member of staff of the Authority shall be paid out of
moneys at its disposal such remuneration and allowances forexpenses incurred by him or her as the Authority, with the consentof the Minister and the Minister for Finance, may determine.
(3) A member of staff of the Authority shall hold his or her office
or employment on such other terms and conditions, as the Authority,with the consent of the Minister and the Minister for Finance, maydetermine.
(4) The grades of the staff of the Authority, and the numbers of
staff in each grade, shall be determined by the Authority with theconsent of the Minister and the Minister for Finance.
40.—(1) The Authority shall provide itself with a seal which shall
be authenticated by the chairperson or some other member of theAuthority authorised by it to act on its behalf and by the signatureof an officer of the Authority authorised by it to act in that behalf.
(2) Judicial notice shall be taken of the seal of the Authority and
any document sealed with the seal shall be admissible in evidence.
41.—(1) The Authority shall—
(a) submit estimates of income and expenditure to the Minister
in such form, in respect of such periods and at such timesas may be required by the Minister, and
(b) furnish to the Minister any information which the Minister
may require in relation to such estimates, including pro-posals and future plans relating to the performance bythe Authority of its functions over a period of years.
(2) The Authority shall cause to be kept all proper and usual
books or other records of account of—
(a) all income and expenditure of the Authority,
(b) the sources of such income and the subject matter of such
expenditure, and
(c) the property, assets and liabilities of the Authority,
and shall keep such other special accounts as the Minister may from
time to time direct to be kept.
(3) The financial year of the Authority shall be the period of 12
months ending on the 31st day of December in any year.
39Staff.
Seal of the
Authority.
Accounts and
audits.[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.41
Annual report.
Grants and
borrowing powers.
Superannuation.
40(4) The Authority shall, whenever so requested by the Minister,
permit any person appointed by the Minister to examine the booksor other records of account of the Authority in respect of any finan-cial year or other period and shall facilitate any such examination,and the Authority shall pay such fee therefor as may be fixed by theMinister.
(5) The accounts of the Authority for each financial year shall—
(a) be prepared in such form and manner as may be specified
by the Minister, and
(b) be prepared by the Authority as soon as practicable, but not
later than 3 months, after the end of the financial year towhich they relate for submission to the Comptroller andAuditor General for audit,
and a copy of the accounts and the auditor’s report thereon shall be
presented, as soon as practicable, to the Minister.
(6) The Minister shall cause a copy of the accounts and auditor’s
report referred to in subsection (5) to be laid before each House of
the Oireachtas.
42.—(1) Within 2 months after the end of each financial year, the
Authority shall publish a report of its activities during that year.
(2) Each report under subsection (1) shall contain information in
such form and regarding such matters as the Minister may direct.
(3) Prior to the publication of each report under subsection (1) ,
the Authority shall—
(a) furnish to the Minister a copy of the report, and
(b) arrange for a copy of the report to be laid before each
House of the Oireachtas.
43.—(1) In each financial year there may be paid to the Authority
out of moneys provided by the Oireachtas a grant of such amount asthe Minister, with the consent of the Minister for Finance, may sanc-tion towards the expenses of the Authority in the performance of itsfunctions.
(2) The Authority may, with the consent of the Minister given
with the concurrence of the Minister for Finance, borrow temporarilysuch sums of money as the Authority may require for the purposeof providing for current expenditure by it.
44.—(1) The Minister shall, with the consent of the Minister for
Finance, make and carry out such a scheme or schemes for the grant-ing of superannuation benefits to or in respect of the members of
the Authority and the members of staff of the Authority as he orshe may think fit.
(2) Every such scheme shall fix the time and conditions of retire-
ment for all persons in respect of whom superannuation benefits arepayable under the scheme, and different times and conditions maybe fixed in respect of different classes of persons.[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.44 (3) The Minister may at any time, with the consent of the Minister
for Finance, make and carry out a scheme or schemes amending orrevoking a scheme under this section.
(4) No superannuation benefit shall be granted by the Minister
nor shall any other arrangement be entered into by the Minister forthe provision of such a benefit to or in respect of any member of theAuthority or any member of the staff of the Authority otherwisethan in accordance with a scheme under this section or, if the Mini-ster, with the consent of the Minister for Finance, sanctions thegranting of such a benefit, in accordance with that sanction.
(5) A scheme under this section shall be laid before each House
of the Oireachtas as soon as may be after it is made and if a resol-ution annulling the scheme is passed by either such House within thenext 21 days on which that House has sat after the scheme is laidbefore it, the scheme shall be annulled accordingly, but withoutprejudice to the validity of anything previously done thereunder.
(6) If any dispute arises as to the claim of any person to, or the
amount of, any superannuation benefit payable in pursuance of ascheme or schemes under this section, such dispute shall be submit-ted to the Minister who shall refer it to the Minister for Finance,whose decision shall be final.
(7) A scheme made under paragraph 5 of the Schedule to the
Competition Act, 1991, and in force immediately before the com-mencement of this section shall continue in force as if it were ascheme made under this section and may be amended or revokedaccordingly.
(8) In this section ‘‘superannuation benefit’’ means a pension, gra-
tuity or other allowance payable on resignation, retirement or death.
45.—(1) The Authority may appoint persons to be authorised
officers for the purposes of this Act.
(2) For the purpose of obtaining any information necessary for
the performance by the Authority of any of its functions under thisAct, an authorised officer may, on production of a warrant issuedunder subsection (4) authorising him or her to exercise one or more
specified powers under subsection (3) , exercise that power or those
powers.
(3) The powers mentioned in subsection (2) are the following:
(a) to enter, if necessary by force, and search premises at, or
vehicles in or by means of, which any activity in connec-tion with the business of supplying or distributing goodsor providing a service, or in connection with the organis-ation or assistance of persons engaged in any such busi-ness, is carried on,
(b) to enter, if necessary by force, and search any dwelling occu-
pied by a director, manager or any member of staff ofan undertaking that carries on an activity referred to inparagraph (a) or of an association of undertakings that
carry on activities of the kind referred to in that para-graph, being, in either case, a dwelling as respects whichthere are reasonable grounds to believe records relatingto the carrying on of that activity or those activities arebeing kept in it,
41Authorised officers
and their powers.[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.45
42(c) to seize and retain any books, documents and records relat-
ing to an activity referred to in paragraph (a) found on
any premises, vehicles or dwelling referred to in thatparagraph or paragraph (b) and take any other steps
which appear to the officer to be necessary for preserv-ing, or preventing interference with, such books, docu-ments and records,
(d) to require the person who carries on an activity referred to
inparagraph (a) and any person employed in connection
therewith to—
(i) give to the officer his or her name, home address and
occupation, and
(ii) provide to the officer any books, documents or
records relating to that activity which are in that per-son’s power or control, and to give to the officer suchinformation as he or she may reasonably require inregard to any entries in such books, documents orrecords,
(e) to inspect and copy or take extracts from any such books,
documents and records,
(f) to require a person mentioned in paragraph (d) to give to
the authorised officer any information he or she mayrequire in regard to the persons carrying on the activityreferred to in paragraph (a) (including in particular, in
the case of an unincorporated body of persons, infor-mation in regard to the membership thereof and its com-mittee of management or other controlling authority) oremployed in connection therewith,
(g) to require a person mentioned in paragraph (d) to give to
the authorised officer any other information which theofficer may reasonably require in regard to the activityreferred to in paragraph (a) .
(4) A judge of the District Court may issue a warrant to an auth-
orised officer for the purposes of subsection (2) if the judge is satis-
fied from information on oath that it is appropriate to do so.
(5) The powers specified in a warrant issued under subsection (4)
may be exercised within 1 month after the date of issue of the war-rant or such greater or lesser period as is specified in it.
(6) Any books, documents or records which are seized or obtained
under subsection (3) may be retained for a period of 6 months, or
such longer period as may be permitted by a judge of the DistrictCourt, or if within that period there are commenced any proceedingsto which those books, documents or records are relevant, until theconclusion of those proceedings.
(7) Where the Authority or an authorised officer proposes to
retain, pursuant to subsection (6) , books, documents or records for a
period longer than 14 days after the date on which they were seizedor obtained by the authorised officer, the Authority or that officershall, before the expiry of that period of 14 days, or such longerperiod with the consent of the person hereafter mentioned, furnish,on request, a copy of the books, documents or records to the personwho it appears to the Authority or officer is, but for the exercise ofthe powers under this section, entitled to possession of them.[2002.] Competition Act, 2002. [ No. 14.]
Pt.4 S.45 (8) A warrant issued under subsection (4) which authorises the
exercise of the powers referred to in paragraph (a) or(b)ofsubsec-
tion (3) shall, unless it states that this subsection is not to apply,
operate to authorise one or more members of the Garda Sı ´ocha´na
to accompany the authorised officer concerned in his or her entryinto any premises or dwelling concerned and to assist the officer inthe exercise of any of his or her powers thereon.
(9) For the avoidance of doubt, nothing in subsection (8) affects
the exercise by an authorised officer who is a member of the GardaSı´ocha´na of any power, which apart from that subsection, he or she
could exercise by virtue of subsection (2) or otherwise.
(10) A person who obstructs or impedes an authorised officer in
the exercise of a power conferred by this section or does not complywith a requirement under this section shall be guilty of an offenceand shall be liable on summary conviction to a fine not exceeding\3,000 or imprisonment for a term not exceeding 6 months or to both
such fine and such imprisonment.
(11) In this section ‘‘records’’ includes, in addition to records in
writing—
(a) discs, tapes, sound-tracks or other devices in which infor-
mation, sounds or signals are embodied so as to be cap-able (with or without the aid of some other instrument)of being reproduced in legible or audible form,
(b) films, tapes or other devices in which visual images are
embodied so as to be capable (with or without the aid ofsome other instrument) of being reproduced in visualform, and
(c) photographs,
and a reference to a copy of records includes, in the case of records
falling within paragraph (a) only, a transcript of the sounds or signals
embodied therein, in the case of records falling within paragraph (b) ,
a still reproduction of the images embodied therein and, in the caseof records falling within both of those paragraphs, such a transcriptand such a still reproduction.
(12) The reference in subsection (2) to the functions of the Auth-
ority shall, for the purposes of this section, be deemed to include a
reference to the investigation by the Authority of, and the takingby it of proceedings (whether civil or criminal) in relation to, anycontravention of an enactment repealed by section 48 that it suspects
has occurred.
(13) In—
(a) an action under section 14 ,o r
(b) proceedings for an offence under this Act,
the production to the court of a document purporting to be a warrant
or other document whereby the Authority appointed, on a specifieddate, a person under this section to be an authorised officer for thepurposes of this Act shall, without proof of any signature on it orthat the signatory was the proper person to sign it, be sufficient evi-dence, until the contrary is proved, that the first-mentioned personis or, as the case may be, was at all material times (but not earlier
43[No. 14.] Competition Act, 2002. [2002.]
Pt.4 S.45
Relationship of
Authority withforeign competitionbodies.
Information relating
to offences underthis Act may bedisclosed toAuthority.
44than the date aforesaid) a person appointed under this section to be
an authorised officer for the purposes of this Act.
46.—(1) In this section ‘‘foreign competition body’’ means a per-
son in whom there are vested functions under the law of anotherstate with respect to the enforcement or the administration of pro-visions of that state’s law concerning competition between undertak-ings (whether in a particular sector of that state’s economy orthroughout that economy generally).
(2) The Authority may, with the consent of the Minister, enter
into arrangements with a foreign competition body whereby eachparty to the arrangements may—
(a) furnish to the other party information in its possession if the
information is required by that other party for the pur-pose of performance by it of any of its functions, and
(b) provide such other assistance to the other party as will facili-
tate the performance by that other party of any of its
functions.
(3) The Authority shall not furnish any information to a foreign
competition body pursuant to such arrangements unless it requiresof, and obtains from, that body an undertaking in writing by it thatit will comply with terms specified in that requirement, being termsthat correspond to the provisions of any enactment concerning thedisclosure of that information by the Authority.
(4) The Authority may give an undertaking to a foreign compe-
tition body that it will comply with terms specified in a requirementmade of the Authority by the body to give such an undertakingwhere—
(a) those terms correspond to the provisions of any law in force
in the state in which the body is established, being pro-visions which concern the disclosure by the body of theinformation referred to in paragraph (b) , and
(b) compliance with the requirement is a condition imposed by
the body for furnishing information in its possession tothe Authority pursuant to the arrangements referred toinsubsection (2) .
47.—Notwithstanding any other law, information which, in the
opinion of—
(a) the Director of Corporate Enforcement,
(b) a member of the Garda Sı ´ocha´na, or
(c) such other person as may be prescribed after consultation by
the Minister with any other Minister of the Governmentappearing to him or her to be concerned,
may relate to the commission of an offence under this Act may be
disclosed by that Director, member or other person to the Authority,a member or a member of staff of the Authority or an authorisedofficer.[2002.] Competition Act, 2002. [ No. 14.]
PART 5
Miscellaneous
48.—The following are repealed:
(a) the Industrial and Provident Societies (Amendment) Act,
1971,
(b) the Mergers, Take-overs and Monopolies (Control) Act,
1978,
(c) sections 24, 25 and 26 of the Restrictive Practices
(Amendment) Act, 1987,
(d) the Competition Act, 1991, and
(e) the Competition (Amendment) Act, 1996.
49.—The Minister may, by order, amend or revoke the Restrictive
Practices (Groceries) Order, 1987 (S.I. No. 142 of 1987).
50.—(1) A person who, apart from this section, would be so liable
shall not be liable in damages in respect of the communication,whether in writing or otherwise, by him or her to the Authority ofhis or her opinion that—
(a) an offence under section 6 or7has been or is being commit-
ted, or
(b) any other provision of this Act that prohibits an undertaking
from doing a particular thing or things has not been or isnot being complied with,
unless it is proved that he or she has not acted reasonably and in
good faith in forming that opinion and communicating it to theAuthority.
(2) The reference in subsection (1) to liability in damages shall be
construed as including a reference to liability to be the subject of anorder providing for any other form of relief.
(3) An employer shall not penalise an employee for having for-
med an opinion of the kind referred to in subsection (1) and com-
municated it, whether in writing or otherwise, to the Authority if theemployee has acted reasonably and in good faith in forming thatopinion and communicating it to the Authority.
(4)Schedule 3 shall have effect for the purposes of subsection (3) .
(5) A person who states to the Authority that an undertaking has
committed or is committing an offence under section 6 or7or has
failed or is failing to comply with a provision of this Act referred toinsubsection (1)(b) knowing that statement to be false shall be guilty
of an offence and shall be liable on summary conviction to a fine notexceeding \3,000 or to imprisonment for a term not exceeding 6
months or to both such fine and such imprisonment.
(6) Notwithstanding section 10(4) of the Petty Sessions (Ireland)
Act, 1851, summary proceedings for an offence under subsection (5)
may be instituted within 2 years after the day on which the offencewas committed or, if later, 2 years after the day on which evidencethat, in the opinion of the person by whom the proceedings are
45Repeals.
Restrictive Practices
(Groceries) Order,1987.
Protections for
person reportingbreaches of Act.[No. 14.] Competition Act, 2002. [2002.]
Pt.5 S.50
Amendment of
Industrial andProvident SocietiesAct, 1893.
Regulations and
orders.
Expenses.
46brought, is sufficient to justify the bringing of the proceedings comes
to that person’s knowledge.
(7) For the purposes of subsection (6) , a certificate signed by or
on behalf of the person bringing the proceedings as to the day onwhich the evidence referred to in that subsection relating to theoffence concerned came to his or her knowledge shall be prima facie
evidence thereof and in any legal proceedings a document purportingto be a certificate issued for the purpose of this subsection and to beso signed shall be deemed to be so signed and shall be admitted asevidence without proof of the signature of the person purporting tosign the certificate.
(8)Subsection (1) is in addition to, and not in substitution for, any
privilege or defence available in legal proceedings, by virtue of anyenactment or rule of law in force immediately before the commence-ment of this section, in respect of the communication by a person toanother (whether that other person is the Authority or not) of anopinion of the kind referred to in paragraph (a) or(b)ofsubsection
(1).
51.—The Industrial and Provident Societies Act, 1893, is
amended—
(a) in section 51, by the substitution for ‘‘For the purposes of
this Act’’ of ‘‘Subject to section 51A of this Act, for thepurposes of this Act’’, and
(b) by the insertion of the following section after section 51:
‘‘51A. In relation to special resolutions for the purposes of
sections 52 and 53 of this Act, section 51 of this Act shall haveeffect as if—
(a) in paragraph (a)‘of not less than three fourths’ were
deleted, and
(b) in paragraph (b), ‘where such special resolution is
passed by a majority of less than three fourths ofsuch members,’ were inserted before ‘confirmed’.’’.
52.—(1) The Minister may by regulations provide for any matter
referred to in this Act as prescribed or to be prescribed.
(2) Every regulation under this Act and every order under this
Act (other than an order under section 2, subsection (4) or(5)of
section 18 ,section 23(4) or section 27(1) ) shall be laid before each
House of the Oireachtas as soon as may be after it is made and, if aresolution annulling the regulation or order is passed by either suchHouse within the next 21 days on which that House has sat after theregulation or order is laid before it, the regulation or order shall beannulled accordingly, but without prejudice to the validity of any-thing previously done thereunder.
53.—The expenses incurred by the Minister in the administration
of this Act shall, to such extent as may be sanctioned by the Ministerfor Finance, be paid out of moneys provided by the Oireachtas.[2002.] Competition Act, 2002. [ No. 14.]
54.—The Public Offices Fees Act, 1879, shall not apply to fees
payable under this Act.
55.—Schedule 2 shall have effect for the purposes of this Act.
SCHEDULE 1
Statutory Bodies and their responsible Ministers of the
Government
Statutory body Minister of the Government responsible
(1) (2)
Broadcasting Commission of Ireland Minister for Arts, Heritage, Gaeltacht
and the Islands
Commission for Electricity Regulation Minister for Public Enterprise
Commission for Aviation Regulation Minister for Public Enterprise
Director of Telecommunications Minister for Public Enterprise
Regulation
SCHEDULE 2
Saving and Transitional Provisions
Continuance in office of members of the Authority
1. A person who was a member of the Authority immediately
before the commencement of section 35 shall continue in office as
such a member for the remainder of the term of office for which heor she was appointed, unless he or she sooner dies or resigns fromoffice or otherwise ceases to hold office.
Transfer of certain staff
2. (1) Every officer of the Minister who has been designated by
the Minister at any time before such day as may be appointed by theMinister by order for the purposes of this paragraph shall, on theday of such designation, be transferred to, and become a member of,the staff of the Authority.
(2) The Minister shall not make an order under subparagraph (1)
without having notified in writing any recognised trade unions orstaff associations concerned and the Authority of his or her intentionto do so and considering any representations made by them or anyof them in relation to the matter within such time as may be specifiedin the notification.
(3) Save in accordance with a collective agreement negotiated
with any recognised trade union or staff association concerned, anofficer of the Minister designated by the Minister under subpara-
graph (1) , who is transferred by that subparagraph to the staff of the
Authority shall not, while in the service of the Authority, receive alesser scale of pay or be made subject to less beneficial terms andconditions of service (other than those relating to tenure of office)than the scale of pay to which he or she was entitled and terms and
47Pt.5
Provision with
respect to feespayable under thisAct.Saving andtransitionalprovisions.
Section 3 .
Section 55.[No. 14.] Competition Act, 2002. [2002.]
Sch. 2
48conditions of service (other than those relating to tenure of office)
to which he or she was subject immediately before the day on whichhe or she was so transferred.
(4) Until such time as the scales of pay and the terms and con-
ditions of service (other than those relating to tenure of office) ofstaff so transferred are varied by the Authority, following consul-tation with any recognised trade unions and staff associations con-cerned, the scales of pay to which they were entitled and the termsand conditions of service (other than those relating to tenure ofoffice), restrictions, requirements and obligations to which they weresubject immediately before their transfer shall continue to apply tothem and may be applied or imposed by the Authority while theyare in the service of the Authority. No such variation shall operateto worsen the scales of pay or the terms or conditions of serviceapplicable to a member of such staff immediately before the day onwhich he or she was transferred save in accordance with a collectiveagreement negotiated with any recognised trade union or staff associ-ation concerned.
(5) The terms and conditions relating to tenure of office which are
granted by the Authority to a member of the staff of the Authoritywho was designated by the Minister and under subparagraph (1)
transferred to its staff shall not, while he or she is in the service ofthe Authority, be less favourable to him or her than those prevailingfor the time being in the civil service; any alteration in the conditionsin regard to tenure of office of any such member shall not be suchas to render those conditions less favourable to him or her than thoseprevailing in the civil service at the time of such alteration save inaccordance with a collective agreement negotiated with any recog-nised trade unions or staff associations concerned. If a dispute arisesbetween the Authority and any such member as to conditions pre-vailing in the civil service, the matter shall be determined by theMinister for Finance after consultation with the Minister.
(6) In relation to staff transferred by subparagraph (1) to the staff
of the Authority, previous service in the civil service shall be reckon-able for the purposes of, but subject to any other exemptions orexclusions in, the Redundancy Payments Acts, 1967 to 1990, theOrganisation of Working Time Act, 1997, the Minimum Notice andTerms of Employment Acts, 1973 and 1984, and the Unfair Dis-missals Acts, 1977 to 1993.
(7) In this paragraph ‘‘recognised trade union or staff association’’
means a trade union or staff association recognised by the Authorityfor the purposes of negotiations which are concerned with theremuneration or conditions of employment, or the working con-
ditions, of employees.
Certificates, licences and notifications
3. (1) On the commencement of section 48(d) —
(a) every certificate issued under section 4(4) of the Compe-
tition Act, 1991, and in force immediately before thatcommencement shall stand revoked;
(b) every licence granted under section 4(2) of the Competition
Act, 1991, and in force immediately before that com-mencement (other than a licence to which subparagraph
(2)applies) shall stand revoked, and[2002.] Competition Act, 2002. [ No. 14.]
Sch. 2 (c) every notification made under section 7 of the Competition
Act, 1991, shall cease to have effect.
(2) Every licence granted under section 4(2) of the Competition
Act, 1991, in respect of a category of agreements, decisions or con-certed practices and in force immediately before the commencementofsection 4 shall continue in being as if it were a declaration made
under subsection (3) of the latter section and may be revoked by the
Authority accordingly.
Mergers or take-overs notified before commencement of section 18,
etc.
4. (1) In this paragraph ‘‘Act of 1978’’ means the Mergers, Take-
overs and Monopolies (Control) Act, 1978.
(2) Notwithstanding the repeals effected by section 48 , the pro-
visions of the Act of 1978, and of every instrument thereunder inforce immediately before the commencement of section 18 , shall con-
tinue in force for the purposes mentioned in subparagraphs (3) and
(4).
(3) A merger or take-over (within the meaning of the Act of 1978)
notified to the Minister in accordance with section 5 of that Actbefore the commencement of section 18 shall continue to be dealt
with under that Act after that commencement and the provisions ofthat Act and of every instrument thereunder shall, accordingly, applyfor that purpose.
(4) A proposed merger or take-over prohibited either absolutely
or except on conditions by virtue of section 9 of the Act of 1978(whether such prohibition took effect before the commencement ofsection 18 or, in the case of a merger or take-over referred to in
subparagraph (3) , after that commencement) shall continue to be so
prohibited indefinitely save where the Minister, by virtue of the exer-cise by him or her of the powers under subsection (4) of that section9, otherwise determines.
Section 21 of Interpretation Act, 1937
5. The provisions of this Schedule are without prejudice to the
generality of section 21 of the Interpretation Act, 1937, (which,amongst other things, enables the prosecution of offences committedunder repealed enactments).
SCHEDULE 3
Redress for Contravention of Section 50(3)
1. In this Schedule—
‘‘Act of 1994’’ means the Terms of Employment (Information) Act,
1994;
‘‘employee’’ and ‘‘employer’’ have the same meaning as they have
in the Act of 1994.
2. In proceedings under this Schedule before a rights com-
missioner or the Employment Appeals Tribunal in relation to a com-plaint that section 50(3) has been contravened, it shall be presumed,
until the contrary is proved, that the employee concerned actedreasonably and in good faith in forming the opinion and making thecommunication concerned.
49Section 50.[No. 14.] Competition Act, 2002. [2002.]
Sch. 3
503. If a penalisation of an employee, in contravention of section
50(3) , constitutes a dismissal of the employee within the meaning of
the Unfair Dismissals Acts, 1977 to 1993, relief may not be grantedto the employee in respect of that penalisation both under thisSchedule and under those Acts.
4. An employee may present a complaint to a rights commissioner
that his or her employer has contravened section 50(3) in relation to
him or her and, if he or she does so, the commissioner shall give theparties an opportunity to be heard by the commissioner and topresent to the commissioner any evidence relevant to the complaint,shall give a decision in writing in relation to it and shall communicatethe decision to the parties.
5. A decision of a rights commissioner under paragraph 4 shall do
one or more of the following:
(a) declare that the complaint was or, as the case may be, was
not well founded,
(b) require the employer to comply with section 50(3) and, for
that purpose, require the employer to take specifiedsteps,
(c) require the employer to pay to the employee compensation
of such amount (if any) as is just and equitable havingregard to all the circumstances, but not exceeding 104weeks remuneration in respect of the employee’s employ-ment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act, 1977,
and the references in the foregoing subparagraphs to an employer
shall be construed, in a case where ownership of the business of theemployer changes after the contravention to which the complaintrelates occurred, as references to the person who, by virtue of thechange, becomes entitled to such ownership.
6. For the purposes of this Schedule—
(a) subsections (3) to (6) and subsection (7)( a) of section 7 of
the Act of 1994 shall apply in relation to a complaintpresented under this Schedule as they apply in relationto a complaint presented under subsection (1) of thatsection 7, with the following modifications, namely—
(i) the deletion in that subsection (3) of all the words
from ‘‘if it is presented’’ to the end of that subsectionand the substitution of ‘‘unless it is presented to himwithin the period of 12 months beginning on the dateof the contravention to which the complaint relatesor (in a case where the rights commissioner is satis-fied that exceptional circumstances prevented thepresentation of the complaint within the periodaforesaid) such further period, not exceeding 6months from the expiration of the said period of 12months, as the rights commissioner considersreasonable’’,
(ii) the substitution in that subsection (6) of a reference
to a decision for the reference to a recommendation,
and any other necessary modifications,[2002.] Competition Act, 2002. [ No. 14.]
Sch. 3 (b) sections 8 to 10 of the Act of 1994 shall apply as they apply
for the purposes of that Act, with the following modifi-cations, namely—
(i) the substitution in those provisions of references to a
decision for references to a recommendation,
(ii) the addition to section 8 of the following subsection:
‘‘(7) Proceedings under this section before the
Tribunal shall be heard otherwise than in public.’’,
(iii) the substitution in section 9 of the Act of 1994 of—
(I) references to the Circuit Court for references to
the District Court, and
(II) the following subsection for subsection (3):
‘‘(3) An application under this section to the
Circuit Court shall be made to the judge of theCircuit Court for the circuit in which theemployer concerned ordinarily resides or carrieson any profession, trade or business.’’,
and any other necessary modifications.
51[No. 14.] Competition Act, 2002. [2002.]
Sch. 3
52BAILE A ´THA CLIATH
ARNA FHOILSIU ´AG OIFIG AN tSOLA ´THAIR
Le ceannach dı ´reach o ´n
OIFIG DHI ´OLTA FOILSEACHA ´N RIALTAIS,
TEACH SUN ALLIANCE, SRA ´ID THEACH LAIGHEAN, BAILE A ´THA CLIATH 2,
no´trı´d an bpost o ´
FOILSEACHA ´IN RIALTAIS, AN RANNO ´G POST-TRA ´CHTA,
51 FAICHE STIABHNA, BAILE A ´THA CLIATH 2,
(Teil: 01 - 6476834/35/36/37; Fax: 01 - 6476843)
no´trı´aon dı ´olto´ir leabhar.
——————
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PUBLISHED BY THE STATIONERY OFFICE
To be purchased directly from the
GOVERNMENT PUBLICATIONS SALE OFFICE,
SUN ALLIANCE HOUSE, MOLESWORTH STREET, DUBLIN 2,
or by mail order from
GOVERNMENT PUBLICATIONS, POSTAL TRADE SECTION,
51 ST. STEPHEN’S GREEN, DUBLIN 2,
(Tel: 01 - 6476834/35/36/37; Fax: 01 - 6476843)
or through any bookseller.
\6.60
9780755728138ISBN 0-7557-2813-0
Wt. 513. 1,250. 4/02. Cahill. (X43456). G.30-15.