CCPC Online Marketplaces
Functions of Competition and Consumer Protection Commission
The Digital Services Regulation provides that additional national competent authorities can be designated to carry out specific tasks under the Regulation. Digital Services Act 2024 also designate the Competition and Consumer Protection Commission as a national competent authority for Articles 30, 31 and 32 of the Digital Services Regulation, which relate to online marketplaces, and to make provisions in national law to provide the Competition and Consumer Protection Commission with the investigatory and enforcement powers required to carry out its natiotal role with respect to Articles 30, 31 and 32 of the Digital Services Regulation.
The Competition and Consumer Protection Commission will be the competent authority for Articles 30, 31 and 32 of the Digital Services Regulation and thus have the supervisory and enforcement responsibility in Ireland with respect to these Articles of the Regulation.
The Competition and Consumer Protection Commission may enter into co-operation agreements with Coimisiún na Meán to support the effective performance of their respective functions under the Digital Services Regulation.
Digital Services Act 2024 designate authorised officers appointed by the Competition and Consumer Protection Commission under the 2014 Act automatically as authorised officers for the purposes of Part 3 of the Digital Services Act with the powers to exercise their investigatory powers as set out in the 2014 Act. It is a function of the Competition and Consumer Protection Commission to enforce Part 3 of the Digital Services Act. The Competition and Consumer Protection Commission can disclose confidential information and receive information on offences from other bodies for the purpose of performing its functions under Part 3 of the Digital Services Act.
Digital Services Act 2024 provides a legal basis for the Competition and Consumer Protection Commission to disclose personal data in certain circumstances to Coimisiún na Meán, And Garda Siochána, intermediary service providers and any body prescribed under regulations made by the Minister for Enterprise, Trade and Employment, for the
Digital Services Act 2024 sets out how the Competition and Consumer Protection Commission shall handle complaints related to The obligations of online platforms, ensuring that both the complainant and the intermediary service provider that is the subject of a complaint have the right to be heard and receive appropriate information as required per Article 53 of the Regulation.
Investigations
A person authorised by the Competition and Consumer Protection Commission may direct an authorised officer to carry out an investigation where there is reason to suspect that there has been a contravention as defined in Part 3 of the Digital Services Act. The authorised officer shall define the terms of the investigation in writing.
Authorised officers of the Competition and Consumer Protection Commission may conduct oral hearings for the purpose of an investigation into a contravention as defined Part 3 of the Digital Services Act. Authorised officers of the Competition and Consumer Protection Commission may use their investigatory powers under section 36 of the Competition and Consumer Protection Act 2014 in relation to suspected infringements of The obligations of online platforms: when engaging in a joint investigations led by another Member State; in relation to an investigation by another Member State; or further to a request for assistance in an investigation conducted by the European Commission.
An administrative financial sanction may be imposed on a person by the Competition and Consumer Protection Commission if, in the course of an investigation into an infringement of The obligations of online platforms, a person obstructs or impedes an authorised officer, fails to comply with a request for information, provides false or misleading information in response to a request for information, or fails to remedy any failure to respond to a request for information or any false or misleading information given to an authorised officer.
The Competition and Consumer Protection Commission may impose a daily payment penalty on an intermediary service provider or other person to enforce an obligation imposed on them by the exercise of the investigatory powers of the authorised officer during an investigation into an infringement of the obligations of online platforms.
The Act sets out the details of the notice that must be provided to the intermediary service or other person before the Competition and Consumer Protection Commission makes a decision to impose a daily payment penalty and provides that the maximum penalty that may be imposed for each day during which the failure continues shall not exceed five per cent of the intermediary service provider’s, or other person’s, average daily income, or turnover, in the preceding financial year.
Providers may take interim measures provides that during an investigation of an infringement of the obligations of online platforms, if the evidence indicates that the infringement is continuing and the infringement gives rise to a risk of serious harm, then the Competition and Consumer Protection Commission may request the provider to take measures to avoid or reduce this risk. Where the provider fails to comply with a notice to such a contravention, then it is guilty of a category 1 offence. Senior management liability may apply to relevant individuals where there is a failure to comply with interim measures under this section.
An authorised officer shall prepare a draft report after the completion of an investigation. The officer must consider various matters in preparing the draft report and provide it, along with other relevant documents, to the person that is the subject of the investigation in question, who will then have 28 days to make submissions. Following any revisions to the draft report, it must be provided to the person who is the subject of the investigation and submitted to the Competition and Consumer Protection Commission.
The Competition and Consumer Protection Commission may make rules providing for the conduct of investigations, the exercise of powers and the conduct of proceedings and such rules should have regard to the need for fairness and efficiency. It may make guidelines with respect to the operation of chapter 3, 4 and 5 of Part 3 and the schedule of the Digital Services Act and any Rules made under the previous section and shall publish any guidelines or amendment or revocation of the guidelines on its website.
Conduct of investigations
An authorised officer may, subject to rules and guidelines made by the Competition and Consumer Protection Commission regarding the conduct of investigations, follow such procedures for the conduct of an investigation as he or she considers appropriate. The officer must take reasonable steps to keep the person that is the subject of the inquiry informed as to the progress of an investigation.
The functions of the Competition and Consumer Protection Commission under Chapter 4 and 5 of Part 3 of Digital Services Act 2024 are to be exercised by a division of the Competition and Consumer Protection Commission consisting of an uneven number of members of the Competition and Consumer Protection Commission, not being less than three.
Once it has received a report from an authorised officer. First, it must offer the person that was the subject of the investigation in question the opportunity to make submissions on the final report. Following this, the Competition and Consumer Protection Commission may conduct an oral hearing and may request further information from the person that was the subject of the investigation in question or any other persons.
When the investigation in question relates to a Digital Services investigation, a person may be subject to an administrative financial sanction if they fail to comply with a request for information from the Competition and Consumer Protection Commission, provide false or misleading information in response to a request for information, or fails to remedy any failure to respond to a request for information or any false or misleading information given to the Commission .
Decision by Commission
The Competition and Consumer Protection Commission shall, in respect of a person who is the subject of an authorised officers report, decide, based on the final report and subsequent information and submissions obtained by the Competition and Consumer Protection Commission decide whether it is satisfied that the person has committed the contravention to which the investigation relates and whether it will impose a financial sanction. The decision by Competition and Consumer Protection Commission does not take effect unless it is confirmed on appeal or on summary application to the Circuit Court.
The Competition and Consumer Protection Commission shall provide appropriate notice of its decision to the subject of an investigation and publish its decision on its website.
Where the Competition and Consumer Protection Commission has made a decision to impose an administrative financial sanction on a person, that the person may make submissions relating to the determination of the amount of the administrative financial sanction which is to apply.
Administrative financial sanctions
Where the Competition and Consumer Protection Commission has made a decision to impose an administrative financial sanction, it shall make a decision in relation to the amount of the administrative financial sanction. Notice of this determination must be provided to the person that was the subject of the related investigation and published on the Competition and Consumer Protection Commission’s website.
The Act sets out the maximum administrative financial sanctions that may be imposed by the Competition and Consumer Protection Commission for the contraventions defined in Part 3 of the Digital Services Act as:
(i) Six per cent of annual turnover of the provider in the preceding financial year for infringements of The obligations of online platforms or for non-compliance by the provider with orders by the Competition and Consumer Protection Commission to take interim measures, or for failure of a provider to comply with a commitment agreement entered into with Competition and Consumer Protection Commission.
(ii) One per cent of annual income or turnover of a person in the preceding financial year:
- for obstructing or impeding an authorised officer during an investigation, failing to comply with a request for information from an authorised officer, providing false or misleading information in response to a request from an authorised officer for information, failing to remedy any failure to comply with a request for information from the authorised officer or failing to remedy any information which is given to an authorised officer in purported compliance with a request for information and which is false or misleading.
- for failing to comply with a request for information from the Competition and Consumer Protection Commission, providing false or misleading information in response to a request from the Competition and Consumer Protection Commission for information, failing to remedy any failure to comply with a request for information from the Competition and Consumer Protection Commission or failing to remedy any information which is given to the Competition and Consumer Protection Commission in purported compliance with a request for information and which is false or misleading.
- for knowingly giving false or misleading evidence on oath or affirmation during an oral hearing where the suspected contravention is an infringement of The obligations of online platforms of the providing under an oral hearing as per the Schedule,
The amount of the administrative sanction must be proportionate to the nature of the contravention and set with a view to deterring providers and other persons from committing contraventions under the Digital Services Act.
Appeal
The subject of an investigation may appeal against a decision made by the Competition and Consumer Protection Commission under this Part. An appeal may be heard by the appropriate court, which may be the Circuit Court or High Court which will be determined by the quantum of the administrative financial sanction.
The Competition and Consumer Protection Commission shall, where there is no appeal by the subject of an investigation of a decision of the Commission to impose an administrative financial sanction, make an application to the Circuit Court for confirmation of the decision. The Act sets out provisions in relation to the potential decisions and actions of the Circuit Court in this context.
Any payments related to a decision by the Competition and Consumer Protection Commission to impose administrative financial sanctions must be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.
The Competition and Consumer Protection Commission, where a decision or determination under this Part has not yet been made, may decide to refer any questions of law arising under Chapter 3 or 4 to the High Court, which may grant leave to appeal to the Court of Appeal in certain circumstances.
The subject of an investigation that has received a notice that the Competition and Consumer Protection Commission is imposing a daily payment penalty on them, may appeal to the High Court against a decision to impose the daily payment penalty.
CCPC Enforcement
If the Competition and Consumer Protection Commission decides that it is satisfied that a provider has infringed any of the obligations of online platforms, and this decision has been confirmed on appeal or by the Circuit Court, and if the infringement is continuing, the Competition and Consumer Protection Commission may issue a notice to the provider to end the infringement. Where the provider fails to comply with a notice to end such a contravention, then it is guilty of a category 1 offence. Senior management liability may apply to relevant individuals where there is a failure to comply with a notice under this section.
Further to issuing a notice to end an infringement of the obligations of online platforms, it may impose a daily penalty payment on the provider for the purpose of enforcing the notice. The Competition and Consumer Protection Commission first has to give the provider a notice in writing that it intends to impose a daily payment penalty if the provider does not take the necessary steps as set out in the “notice to end a contravention”. The Competition and Consumer Protection Commission shall also inform the provider of the maximum daily amount of the penalty that may be imposed and invite the provider to provide a written submission in relation to the level of the penalty.
The Competition and Consumer Protection Commission may impose a daily penalty payment of up to five per cent of the provider’s average daily turnover in the proceeding financial year. If the provider does not end the contravention by the date specified in the “notice to end a contravention” the Competition and Consumer Protection Commission, after considering any submission received by the provider in relation to the level of the penalty, may by notice in writing to the provider, determine the level of the daily level of penalty to be imposed and impose the penalty subject to confirmation of the decision following an appeal to the High Court by the provider or on summary application to the Circuit Court by the Competition and Consumer Protection Commission to confirm the decision.
Providers can appeal a decision by the Competition and Consumer Protection Commission to impose a daily payment penalty for failure to comply with a “notice to end a contravention” to the High Court within 28 days of receiving the notice. When a provider does not appeal a decision by the Competition and Consumer Protection Commission to impose a daily penalty for failure to comply with a “notice to end a contravention”, the Competition and Consumer Protection Commission shall make an application to the Circuit Cour to confirm the decision.
Access Blocking Order
Where a provider has been given a “notice to end a contravention”, and the contravention continues, the Competition and Consumer Protection Commission may request the management body of the provider to propose steps to put an end to the contravention. Upon receipt of a proposal from the management body of the provider, the Competition and Consumer Protection Commission may give a further notice in writing to end a contravention stating the steps the provider must take withing a specified time period.
Where a management body of the provider fails to make a proposal for steps to end a contravention following a request from Competition and Consumer Protection Commission, or a provider does not comply with a “further notice to end a contravention”, then the Competition and Consumer Protection Commission may apply to the High Court for an order requiring that a relevant service provider block access in the State to the service which is the source of the continuing contravention.
Other Enforcement Measures
Where an authorised officer of the Competition and Consumer Protection Commission is of the opinion that a provider has infringed one or more of the obligations of online platforms, that it may serve a compliance notice on the provider requiring the provider to do or to refrain from doing something in order to the stop the specified infringement of the Digital Services Regulation.
The provider may appeal against the notice. Where no appeal is brought, or where the court affirms the notice and the provider does not comply with the compliance notice by the due date, it shall be guilty of an offence and liable on summary conviction to a Class B fine or imprisonment for a term not exceeding 6 months.
The Competition and Consumer Protection Commission may enter into an agreement with a relevant provider under which the provider agrees to take measures that appear to address an issue related to compliance by the provider of any of the obligations of online platforms. Such a “commitment agreement” will be binding on the provider and may be amended or terminated by agreement in writing. The Competition and Consumer Protection Commission may also terminate a commitment agreement in the case that the provider does not comply with the agreement or information provided by the provider for the purpose of entering into the agreement appears to the Competition and Consumer Protection Commission to have been misleading or false. Where a provider falls to comply with a commitment agreement it may be subject to an administrative sanction.
Offences under Part 3
The Digital Services Act 2024 defines the potential fines and imprisonment terms on summary conviction or conviction on indictment for category 1 or 2 offences under Part 3 of 2023 Digital Services Act 2024.The Competition and Consumer Protection Commission may bring and prosecute summary proceedings under Part 3 of the Digital Services Act.
An authorized officer, a member of staff of the Competition and Consumer Protection Commission, or any other person engaged by the Commission in any other capacity, in exchanging and using information referred to in the Digital Services Regulation shall not, in accordance with Article 84 of the Digital Services Regulation, disclose such information as is covered by the obligation of professional secrecy.
The Schedule sets out procedures for Oral Hearings which can be held by authorised officers of the Competition and Consumer Protection Commission or, the Competition and Consumer Protection Commission under Part 3 of the Digital Services Act. The Schedule also provides that a person may be subject to an administrative financial sanction under Part 3 of the Digital Services Act if in an oral hearing where the suspected contravention is an infringement of the obligations of online platforms, he or she knowingly gives false or misleading evidence on oath or affirmation.