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22 2007

Communications Regulation (Amendment) Act 2007

PART 4

Amendment of Competition Act 2002

Amendment of section 3 of Competition Act 2002 (interpretation).

22 .— Section 3 of the Competition Act 2002 is amended as follows:

(a) by inserting in subsection (1) the following definition before the definition of “authorised officer”:

“ ‘ associated facilities ’, in relation to an electronic communications undertaking, has the same meaning as in section 2(1) of the Communications Regulation Act 2002 (No. 20 of 2002);”;

(b) in subsection (1), by repealing the definition of “Commission”;

(c) by inserting in subsection (1) the following definitions before the definition of “conditional determination”:

“ ‘ Commission’ means the Commission for Communications Regulation established by Part 2 of the Communications Regulation Act 2002 ;

‘ competent authority ’—

(a) except as provided by paragraph (b), means the Competition Authority, and

(b) if the Competition Authority and the Commission have, under section 47E, agreed that the Commission should, in relation to a particular matter, perform the functions conferred on the relevant authority by Part 2, or the Minister has made a determination under that section that the Commission should exercise those functions in relation to that matter, also means the Commission;

‘ Competition Authority ’ means the Authority continued by section 29;”;

(d) by inserting in subsection (1) after the definition of “director” the following definitions:

“ ‘ electronic communications network ’ has the same meaning as in section 2 of the Communications Regulation Act 2002 ;

‘ electronic communications service ’ has the same meaning as in section 2 of the Communications Regulation Act 2002 ;

‘ electronic communications undertaking ’ means an undertaking that provides an electronic communications network or an electronic communications service or associated facilities;”.

Amendment of section 4 of Competition Act 2002 (anti-competitive agreements, decisions and concerted practices).

23 .— Section 4 of the Competition Act 2002 is amended as follows:

(a) by substituting the following subsection for subsection (3):

“(3) Either competent authority may in writing declare that in its opinion a specified category of agreements, decisions or concerted practices complies with the conditions referred to in subsection (5), but only with the concurrence of the other competent authority. If the competent authority that made the declaration later forms the opinion that the category no longer complies with those conditions, it may revoke the declaration, but only with the concurrence of the other competent authority.”;

(b) in subsection (4), by substituting “the competent authority” for “the Authority”.

Amendment of section 6 of Competition Act 2002 (offence in respect of breach of section 4(1) or Article 81(1) of the Treaty).

24 .— Section 6 of the Competition Act 2002 is amended by substituting “European Commission” for “Commission” wherever occurring.

Amendment of section 8 of Competition Act 2002 (penalties and proceedings in relation to offences under section 6 and 7).

25 .— Section 8 of the Competition Act 2002 is amended as follows:

(a) in subsection (4)—

(i) by substituting “the competent authority” for “the Authority”, where firstly occurring, and

(ii) by substituting “that authority” for “the Authority”, where secondly, thirdly, fourthly and fifthly occurring;

(b) in subsections (5) and (9), by substituting “the competent authority” for “the Authority”.

Amendment of section 13 of Competition Act 2002 (admissibility of statements contained in certain documents).

26 .— Section 13 of the Competition Act 2002 is amended by substituting the following paragraph for paragraph (b) of subsection (3):

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

Amendment of section 14 of Competition Act 2002 (right of action for breaches of competition rules).

27 .— Section 14 of the Competition Act 2002 is amended by substituting “the competent authority” for “the Authority”, wherever occurring.

Amendment of section 18 of Competition Act 2002 (obligation to notify certain mergers and acquisitions).

28 .— Section 18 of the Competition Act 2002 is amended as follows:

(a) in subsections (13) and (14), by substituting “the European Commission” for “the Commission”;

(b) in subsection (14), by substituting “that Commission’s” for “the Commission’s”.

Amendment of section 34 of Competition Act 2002 (provisions for co-operation between the Authority and statutory bodies).

29 .— Section 34 of the Competition Act 2002 is amended by inserting the following subsection after subsection (12):

“(13) To the extent that a cooperation agreement entered into under this section is inconsistent with a cooperation agreement to which section 47G (inserted by section 31 of the Communications Regulation (Amendment) Act 2007) applies, the second-mentioned cooperation agreement shall apply.”.

Substitution of section 47 of Competition Act 2002.

30 .— The Competition Act 2002 is amended by substituting the following section for section 47:

“Power to disclose certain information relating to offences under this Act.

47.— (1) An authorised person may disclose to the Authority, a member of the Authority, a member of the Authority’s staff or an authorised officer of the Authority any information that, in the person’s opinion, relates to the commission of an offence against this Act.

(2) However, in the case of an offence under section 6 or 7 relating to the provision of an electronic communications service or electronic communications network, or associated facilities, an authorised person may also disclose the information to the Commission, a member of the Commission or a member of the Commission’s staff.

(3) This section has effect despite any other law to the contrary.

(4) In this section, ‘ authorised person ’ means—

(a) the Director of Corporate Enforcement, or

(b) a member of the Garda Síochána, or

(c) a person, or a person belonging to a class of persons, designated under subsection (5).

(5) The Minister may, by notice published in Iris Oifigiúil, designate a person or a class of persons for the purpose of paragraph (c) of the definition of ‘authorised person’ in subsection (4).”.

Insertion into Competition Act 2002 of new Part4A.

31 .— The Competition Act 2002 is amended by inserting the following Part after section 47:

“PART 4A

Performance of Functions of Commission Under this Act

Function of the Commission to investigate complaints relating to the electronic communications market.

47A.— The Commission has, in addition to its other functions under this Act or any other enactment, the function of investigating, either on its own initiative or in response to a complaint made to it by any person, the existence of an agreement, decision or practice of a kind specified in section 4, or the occurrence of an abuse of the kind specified in section 5, involving the provision of an electronic communications service or electronic communications network, or associated facilities.

Delegation of functions of Commission.

47B.— (1) Except as provided by subsection (2), the Commission may delegate the performance of any of its functions under this Act to any member of the Commission or any member of the Commission’s staff.

(2) The Commission may not delegate the performance of—

(a) its function under section 4(3), or

(b) the power to prosecute an offence under section 6 or 7, or for relief under section 14.

Commission to notify Authority before acting under this Act.

47C.— Before performing any of its functions under this Act, the Commission shall notify the Authority in writing of its intention to perform that function.

Responsibilities of Authority with respect to notifying existence of certain agreements, decisions, practices and abuses.

47D.— (1) If—

(a) at any time the Authority suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified in section 4, or there is occurring or has occurred an abuse of the kind specified in section 5, and

(b) it appears to the Authority that the agreement, decision or practice, or the abuse, relates to the provision of an electronic communications service or electronic communications network, or an associated facility,

it shall notify its suspicion in writing to the Commission, together with particulars setting out the basis for the suspicion.

(2) If at any time the Commission suspects on reasonable grounds that there exists or has existed an agreement, decision or practice of a kind specified in section 4, or there is occurring or has occurred an abuse of the kind specified in section 5, it shall notify that suspicion in writing to the Authority. This subsection applies irrespective of whether it appears to the Commission that the suspected breach relates to the provision of an electronic communications service or electronic communications network, or an associated facility.

Authority and Commission to make every effort to settle disputed questions.

47E.— (1) The Authority and the Commission shall make every effort to settle by agreement any question arising as to which of them should perform the functions conferred on a competent authority by Part 2 (section 4(3) excepted) that may relate to the provision of an electronic communications service or electronic communications network, or associated facilities.

(2) If at any time the Authority or the Commission considers that the question cannot be resolved by agreement, it may refer the question for resolution by the Minister.

(3) As soon as practicable after the question has been referred under subsection (2), the Minister shall determine the question and then notify the Authority and the Commission of the determination. In making a determination, the Minister shall—

(a) consult with the Minister for Communications, Marine and Natural Resources, and

(b) take into account any representations made with respect to the question by the Authority or the Commission.

(4) The determination of the Minister under subsection (3) is final.

Undertaking not liable to be prosecuted by both Authority and Commission for same offence.

47F.— If an undertaking that provides an electronic communications service or electronic communications network, or associated facilities, is being, or has been, prosecuted for an offence under section 6 or 7 by the Authority or by the Commission, the undertaking is not liable to be prosecuted for the same offence by the other of those entities.

Co-operation agreement between Authority and the Commission with respect to performing their respective functions under this Act.

47G.— (1) As soon as practicable after the commencement of this Part, the Authority and the Commission shall enter into negotiations for a co-operation agreement that will—

(a) facilitate the performance of their respective functions under this Act, and

(b) avoid duplicating activities by the Authority and the Commission in relation to the performance of those functions, and

(c) ensure, as far as practicable, consistency between decisions made, and other steps taken, by the Authority and the Commission so far as any part of those decisions or steps relates to the performance of those functions.

(2) As far as practicable, a co-operation agreement shall—

(a) require the Authority and the Commission to consult each other before performing any of their respective functions under this Act if the performance of the functions concerned involves the same issues, and

(b) enable the Authority and the Commission to provide each other with information in its possession if the information is required by the other to perform its functions under this Act.

(3) The Authority and the Commission may vary a co-operation agreement by further agreement.

(4) The Authority and the Commission shall respectively provide the Minister for Enterprise, Trade and Employment and the Minister for Communications, Marine and Natural Resources with a copy of a co-operation agreement, or a variation of such an agreement, as soon as practicable after the agreement or variation has been entered into.

(5) A co-operation agreement, and any variation to it, is to be in writing.

(6) As soon as practicable after a co-operation agreement, or variation of the agreement, is entered into, the Authority and the Commission shall publish in such manner as they think appropriate a notice to the effect that the agreement or variation has been entered into. The notice shall state—

(a) that a copy of the agreement or variation can be inspected at premises of the Authority and premises of the Commission, or by a means, specified in the notice, and

(b) that a copy of the agreement or variation can be purchased from either the Authority or the Commission in a manner so specified.

However, if either the Authority or the Commission has complied with this subsection, the other of them is taken to have so complied.

(7) As soon as practicable after a co-operation agreement, or a variation of the agreement, is entered into, the Authority shall arrange for a copy of the agreement or variation to be laid before each House of the Oireachtas.

(8) The Authority and the Commission shall each make available to members of the public copies of a co-operation agreement, or a variation of the agreement, for inspection and for purchase (at a cost not exceeding the reasonable cost of making a copy and the cost (if any) of posting it).

(9) If information is provided by the Authority or the Commission under a co-operation agreement to which this section applies, any enactment restricting or prohibiting the disclosure of that information by the provider of the information also applies to the receiver of the information.”.

Amendment of Schedule 1 to Competition Act 2002.

32 .— Schedule 1 to the Competition Act 2002 is amended by—

(a) the deletion of the item of the Schedule relating to the Director of Telecommunications Regulation, and

(b) the substitution—

(i) in column (1), of “Commission for Communications Regulation” for “Director of Telecommunications Regulation”, and

(ii) in column (2), of “Minister for Communications, Marine and Natural Resources” for “Minister for Public Enterprise” wherever it occurs.