A commitments procedure – allows the Commission to accept commitments from a person under investigation for a regulatory breach. The commitments concerned may require the person to take or refrain from taking particular actions. The commitments can be renegotiated by the parties. Should the commitments not be complied with, the original investigation can be continued.
There is a settlement procedure which allows the Commission to enter into a settlement agreement with any person under investigation for a regulatory breach prior to the date on which an adjudicator makes a decision. The settlement agreement may be on such terms as may be agreed between the parties and would constitute a final resolution of the matter under investigation.
Actions by authorised officer following investigation
Following an investigation, an authorised officer may close the investigation and not take any further action in respect of the matter, or where the authorised officer suspects on reasonable grounds that the notified person has committed or is committing a regulatory breach, refer the matter for adjudication.
Prior to referring a matter for adjudication, an authorised officer shall prepare a referral report containing a detailed description of the relevant facts of the case, as well as details of the regulatory breach concerned.
When an authorised officer refers a matter for adjudication, they shall furnish the adjudicator with the notice of suspected non-compliance served, as well as the referral report, a copy of all material relied upon in forming their opinion, and any submissions made by the notified person during the investigation.
The Commission may withdraw a matter referred to an adjudicator, at any time before the adjudicator makes an adjudication.
The Commission may provide a copy of any notice or document referred to. to such other persons as the Commission considers appropriate, subject to such redactions as the Commission considers appropriate.
Regulations referrals to adjudicator
The Minister may prescribe the procedure for making and withdrawing a referral, and for making an application for an adjudication on consent/. The Commission, subject to any regulations made by the Minister, may make rules detailing the procedures stated above.
There are requirements for a person to be eligible for nomination as an adjudicator by the Commission; and allows for the Minister to prescribe categories, criteria, requirements, and qualifications necessary for a person to be eligible for nomination.
The Minister shall appoint a person nominated by the Commission as an adjudicator unless the Minister is not satisfied that the nominated person meets the requirements and qualifications prescribed by the Minister; or considers that the nominated person does not have the independence necessary to be appointed as an adjudicator. The Commission shall appoint one of the appointed adjudicators as the Chief Adjudicator.
Adjudicators shall be independent in the performance of their functions, and that the Commission shall put measures in place to ensure such independence. It also provides that an adjudicator shall recuse themselves from proceedings where a conflict of interest may arise.
The Minister shall make regulations prescribing requirements upon the Commission and adjudicators. The regulations may make further provision for the independence of adjudicators including, for example, an effective internal separation between the functions of the Commission and the functions of adjudicators.
The Chief Adjudicator may direct that an uneven number of adjudicators sit together for the purpose of a particular adjudication or part of an adjudication, and in such a case, the functions of the adjudicator for that purpose shall be exercised by those adjudicators sitting together.
Regulations in relation to adjudicators
The Minister shall, in a manner ensuring the independence of adjudicators in the performance of their functions, make regulations to provide for, among other things, the term of appointment of adjudicators, the remuneration of adjudicators, and the resignation from office of adjudicators.
The Commission may from time to time require any employee of the Commission, or appoint such persons as it considers necessary, to assist adjudicators in the performance of their functions, and sets out rules regarding same.
The Commission may rely on any aspect of a contract of service or contract for services in relation to the performance or non-performance of non-adjudication-related tasks, and that appointment of a person as an adjudicator shall not constitute employment by or within the Commission, nor should it constitute the holding of a position in the civil service.
Procedure following referral
As soon as is practicable after a referral is made to an adjudicator, the adjudicator shall serve on the notified person a copy of this section, as well as a notice in writing stating that the matter has been referred for an adjudication and inviting the person to make submissions in writing to the adjudicator on the referral report.
At any time after a referral, an adjudicator may impose on the person the following: a requirement to cease the regulatory breach or to take specified measures to remedy the breach, a financial penalty a requirement to pay a refund; a requirement to pay compensation; and a suspension or withdrawal of authorisation or rights of use of radio spectrum or rights of use for numbers,
In the case of a referral, the adjudicator may do any of the following that they consider necessary to resolve an issue of fact or otherwise enable the adjudicator to make an adjudication: exercise any of the powers; request further information from the person concerned; request further information from any other person; or conduct an oral hearing.
An adjudicator may, by notice, in writing, summon a witness to appear to give evidence, or to produce before the adjudicator any books, documents or records in such person’s power or control, or to do both; and require the witness to attend an oral hearing from day to day unless excused, or released from further attendance, by the adjudicator.
Powers of adjudicators and offences
At any time after a referral, an adjudicator may direct authorised officers of the Commission or the notified person to answer an identified question or questions in whatever manner or form the adjudicator may specify; or direct a party to adduce evidence or produce books, documents and records in its power or control; or direct a party to clarify any issue of fact that an adjudicator may deem necessary.
No order as to costs shall be made in proceedings before an adjudicator, save that an adjudicator in their discretion awards the costs of proceedings against a respondent where they are found to have committed a regulatory breach, or engaged in the investigation in an improper way; or against the Commission in the event that no regulatory breach is found or the Commission engaged in an improper way.
The Minister may make regulations setting out detailed requirements in relation to decisions of an adjudicator, including, for example: the form and manner of provision of information and evidence to be provided to the Commission or to the adjudicator; time limits to apply to the making and conduct of proceedings; and the attendance of witnesses at an oral hearing.
Decision of adjudicator in relation to breach
An adjudicator shall consider the following when making a decision in relation to a matter referred to them: the notice of suspected non-compliance; the referral report; any written submissions made by the notified person on the notice of suspected non-compliance and the referral report; any information provided to the adjudicator in the course of the proceedings; and any prior relevant adjudication.
The Act outlines the actions an adjudicator may take where they have made a decision that a person has committed a regulatory breach, which include: requiring the person to cease the breach or take steps to remedy the breach; imposing a financial penalty; requiring the person to pay a refund to a third party; requiring the person to pay compensation to a third party; suspending or withdrawing the person’s authorisation to provide electronic communications networks or services.
An adjudication shall take effect at the time it is confirmed by the High Court under section 91 subject to any order made by a court on an appeal of the adjudication or on an application for leave to appeal the adjudication.
As soon as is practicable after the adjudicator has made a decision, they shall provide the Commission with the decision. Within 7 days of the receipt of the decision, the Commission shall give notice in writing of the decision to the person concerned.
Imposition of administrative sanctions
The Act sets out the criteria an adjudicator shall have regard to when determining the amount of a financial penalty, including, amongst other things, the need to ensure that the financial penalty is appropriate, effective, and proportionate to the regulatory breach. It also provides that the maximum amount of a financial penalty that an adjudicator may impose on a person shall be the greater of €5 million and 10 per cent of the total turnover in the State of the person in the financial year preceding the imposition of the financial penalty, or in the case of a natural person, the greater of €500,000 and 10 per cent of the annual income of the person on whom the financial penalty is to be imposed.
Where an adjudicator considers that an end-user has been overcharged for a service as a result of a regulatory breach, the adjudicator may require that the person concerned refund the end-user in part or in full.
Requirement to pay compensation
When determining the amount of compensation to be paid by a person in respect of a regulatory breach, an adjudicator shall take account of, amongst other things: the need to ensure that the compensation is appropriate and proportionate; the amount of any loss suffered, or costs incurred by any person affected by the breach; and the effect of the breach on any person affected by the breach, including any distress, inconvenience or emotional upset caused by the breach.
Suspension or withdrawal of authorisation or rights of use
Where an adjudicator receives a recommendation from the Commission and the adjudicator considers that there are, or have been, serious or repeated breaches of conditions by a person, the adjudicator may withdraw or suspend the general authorisation of a person to provide electronic communications networks or services and some or all of the person’s rights of use for radio spectrum and of use for numbering resources.
Guidelines & Regulations
The Commission may prepare and make guidelines in relation to any matter provided for in or under this Part, including, amongst other things, the conduct of oral hearings, the imposition of administrative sanctions, the award of compensation, and the award of refunds.
The Minister may provide in regulations for any matter referred to. The Act provides that the type of proof that is admissible as evidence in proceedings under this Part shall include relevant documents, oral statements, electronic messages, recordings and all other objects containing information, irrespective of the form it takes and the medium on which information is stored.
Restrictions on disclosure
Where an authorised officer requires a natural person to provide a statement or admission on the basis of measures referred to in applicable provisions, any such statement or admission may not be admissible in evidence against that person in criminal proceedings or for perjury where such statement or admission was provided under oath.
Where the Commission or an adjudicator provides a document to any person, it may specify and so notify the person concerned that such document, or such part of the document as it may specify, may not be viewed by, or shared with, any person other than as the Commission may specify.
Appeals, confirmation and judicial review of certain decisions
“Court” means the High Court. Decisions reviewable only by appeal under this Chapter.
Neither an urgent interim measure, nor an adjudication shall be challenged, including as to its validity, other than by way of an appeal thereunder respectively.
A person to whom an urgent interim measure is directed may appeal to the Court against such measure not later than 14 days after the date of service of the urgent interim measures notice.
A person the subject of an adjudication may appeal to the Court against that adjudication not later than 28 days after the date of service of the notice.
Conduct of appeals
The Act sets out the procedure for appeals under this Part. It provides that on hearing an appeal, the Court may confirm the decision, or, where it is satisfied by reference to the grounds of appeal that a serious and significant error of law or fact, or a series of minor errors of law or fact which when taken together amount to a serious and significant error, was made in making the decision, or that the decision was made without complying with fair procedures, annul the decision in its totality or in part.
The Court may in its discretion award the costs of an appeal . Where a person does not appeal to the Court against an adjudication within the period provided for the Commission shall, as soon as is practicable after the expiration of the period allowed for such an appeal, make an application to the Court for the confirmation of that adjudication. This section further sets out the procedure regarding the above.
Publication of adjudication
The Commission shall publish an adjudication confirmed by the Court.
An adjudicator may, on their own initiative or at the request of the Commission or a person the subject of a referral, refer to the Court for decision by way of case-stated a question of law arising at a hearing under section 53. This section further sets out the procedure regarding same.
The validity of a decision made or an act done by the Commission in the performance of a function under Part 5 or Chapters 1 to 7 of this Part shall not be challenged other than by way of an application for judicial review, or in accordance with a process provided for in the Principal Act or this Act by which the validity of such decision or act may be challenged.
An appeal to the Court of Appeal shall lie in respect of a determination of the High Court on an appeal in respect of a decision by an adjudicator. Such appeals will only be granted with leave of the High Court and where the High Court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be made to the Court of Appeal.