ComReg Enforcement II

Table of Contents

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

Commitments

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

(2) Where the Commission receives a proposal under subsection (1), it may—

(a) consult to the extent that it sees fit in relation to the proposal, including consulting publicly or consulting other persons,

(b) where it is of the opinion that it requires further information in order to consider the proposal, by notice in writing served on the person that made the proposal, require the person to give to it within a specified period specified information, and

(c) where it considers it necessary to do so, at any time before the proposal is made the subject of a commitment, propose to the person modifications, alterations, additions or other changes to the proposal.

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

(a) appropriately address the relevant breach, and

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

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

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

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

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

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

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

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

Settlements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Actions by authorised officer following investigation

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

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

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

Referral report

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

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

(b) details of the regulatory breach concerned,

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

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

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

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

Referral of matter by authorised officer to adjudicator for adjudication

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

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

(b) the referral report,

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

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

(a) a copy of the referral report, and

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

Withdrawal by Commission of matter referred to adjudicator

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

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

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

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

Power of Commission to share certain documents

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

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

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

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

(3) A person who receives—

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

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

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

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

Regulations and rules relating to referrals to adjudicator

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

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

(b) withdrawing a referral under section 72 , and

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

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

(b) withdrawing a referral under section 72 , and

Chapter 3

Adjudicators

Nomination of adjudicators

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

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

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

Appointment of adjudicators

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

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

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

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

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

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

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

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

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

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

Independence of adjudicators

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

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

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

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

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

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

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

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

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

(b) the policy of the Commission concerning—

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

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

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

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

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

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

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

Regulations to ensure independence of adjudicators

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

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

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

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

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

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

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

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

(i) adjudicators, and

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

and

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

Adjudicators may sit together

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

Regulations in relation to adjudicators

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

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

(i) fixed and non-renewable, or

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

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

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

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

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

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

(e) the resignation from office of adjudicators;

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

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

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

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

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

(g) the functions of the Chief Adjudicator;

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

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

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

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

Assistants to adjudicators

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

(a) require any employee of the Commission, or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) constitute employment by or within the Commission,

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

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

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

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

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

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

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

Chapter 4

Procedure following referral to adjudicator

Notification by adjudicator following referral

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

(a) a copy of this section,

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

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

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

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

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

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

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

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

Actions following referral under section 71

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

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

(b) request further information from the person concerned;

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

(d) conduct an oral hearing.

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

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

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

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

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

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

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

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

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

Admissibility of evidence and rules for oral hearings conducted by adjudicators

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

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

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

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

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

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

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

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

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

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

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

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

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

(8) At the oral hearing before the adjudicator—

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

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

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

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

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

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

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

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

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

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

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

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

Powers of adjudicators and offences

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(13) In this section, “Court” means the High Court.

Orders for costs in proceedings before adjudicator

88. (1) No order as to costs shall be made in proceedings before an adjudicator save that an adjudicator may in his or her discretion award the costs of proceedings before an adjudicator against a respondent person or, as the case may be, the Commission if the adjudicator finds that the person or the Commission has engaged in improper, irregular, unfair, or unsatisfactory conduct in connection with the investigation of the alleged regulatory breach or in the conduct of proceedings before the adjudicator.

(2) A requirement to pay costs under subsection (1) shall be proportionate to the nature and extent of the conduct that the person or, as the case may be, the Commission is found to have engaged in, and may be limited to a proportion of the overall costs of proceedings or to the costs of a particular part of the proceedings.

Regulations in relation to proceedings before adjudicator

89. (1) The Minister may make regulations setting out detailed requirements in relation to decisions of an adjudicator under sections 90 and 91 , in order to implement this section and otherwise in relation to the conduct of proceedings before an adjudicator in any matter referred to an adjudicator under section 71 (in this section referred to as “proceedings”), having regard to the need for efficiency and the rights of the defence, including but not limited to all or any of the following:

(a) the form and manner of provision of information, records, documents, statements, admissions and evidence to be provided to the Commission or to the adjudicator;

(b) time limits to apply to the making and conduct of proceedings;

(d) the form, and manner of making, of requests by an adjudicator for information, discovery or disclosure from a party to a proceeding, or a person other than a party;

(e) the provision by the Commission, or by an adjudicator, to a party to proceedings, or a person other than a party to proceedings, of information received by the adjudicator or the Commission;

(f) procedures for the consolidation and hearing of two or more proceedings together;

(g) procedures for the separation of proceedings;

(h) the publication on the website of the Commission of information and documents provided, for the purposes of proceedings, by a party to a proceeding or by a person other than a party to proceedings;

(i) the form and manner in which a proceeding may be withdrawn;

(j) any consequential, supplementary or transitional provisions as appear to the Minister to be necessary or expedient for the purpose of giving effect to the regulations.

(2) The Commission shall publish guidelines on the conduct of proceedings and may publish guidelines on any of the matters the subject of regulations under subsection (1).

Decision of adjudicator in relation to breach

90. (1) An adjudicator shall consider the following when making a decision in relation to a matter referred to him or her under section 71 :

(a) the notice of suspected non-compliance served under section 63 (and any supplementary notice of suspected non-compliance served under section 64 );

(b) the referral report;

(c) any written submissions made by the notified person on the notice of suspected non-compliance, any supplementary notice of suspected non-compliance and the referral report;

(d) any submissions, statements, admissions, information, records or other evidence provided to the adjudicator in the course of the proceedings;

(e) any prior relevant adjudication that has been confirmed by the High Court under section 109 .

(2) In any matter referred to an adjudicator under section 71 the adjudicator may make a decision as to whether, on the balance of probabilities, a person has committed or is committing a regulatory breach.

(3) Where—

(a) an adjudicator makes a decision under this section that a person has committed or is committing a regulatory breach, and

(b) the regulatory breach concerned constitutes a criminal offence,

the person found to have committed, or be committing, the regulatory breach shall not be prosecuted for the criminal offence constituted by the regulatory breach.

(4) A decision under subsection (2) shall be dated and include—

(a) the reasons for the decision,

(b) the notice of suspected non-compliance and any supplementary notice of suspected non-compliance,

(c) the evidence, including any information, records, documents, statements, admissions, evidence and written and oral submissions, considered,

(d) information regarding the right of appeal provided for under section 106 where a final decision has been made,

(e) the name of the person found to have committed, or to be committing, a regulatory breach, and the nature of the breach, and

(f) such other particulars or material as the adjudicator considers appropriate.

(5) For the avoidance of doubt, a decision may be made under subsection (2) or section 91 (1) in relation to conduct that is no longer ongoing at the time at which the decision is made.

Decision of adjudicator in relation to administrative sanction

91. (1) Where an adjudicator makes a decision under section 90 (2), that a person has committed a regulatory breach he or she may, subject to this section, do one or more of the following:

(a) require the person to cease the regulatory breach or to take specified measures to remedy the breach;

(b) impose a financial penalty on the person in accordance with section 94 ;

(d) require the person to pay compensation to a third party in accordance with section 96 ;

(e) suspend or withdraw the person’s authorisation to provide electronic communications networks or services (other than number-independent interpersonal communications services) or some or all of the person’s rights of use for radio spectrum and of use for numbering resources in accordance with section 97 .

(2) A decision under this section shall specify the time period within which the person is required, subject to any appeal, to cease a regulatory breach or to take specified measures to remedy the breach or to pay any financial penalty, refund or compensation.

(3) In determining the amount of any financial penalty to be imposed the adjudicator shall have regard to the matters outlined in section 94 .

(4) After reaching a decision under section 90 (2) and prior to making a decision under subsection (1), the adjudicator shall provide the Commission and the person to whom the decision relates with a copy of the decision under section 90 (2) and shall inform the Commission and the person of the intention of the adjudicator to do one or more of the things set out in subsection (1).

(5) The adjudicator shall invite the Commission and the person concerned to make written submissions in accordance with subsections (6) and (8).

(6) The Commission may, within a period of 15 working days from the date on which the adjudicator invites it to make written submissions in accordance with subsection (5), or within such further period as is considered appropriate by the adjudicator and specified when inviting submissions, make written submissions to the adjudicator in relation to the application of the criteria specified in section 94 , the amount of any financial penalty that may be imposed and in regard to guidelines made by the Commission under section 98 (1)(b) to (e).

(7) Where the Commission makes submissions in accordance with subsection (6) the adjudicator shall provide the person concerned with a copy of those submissions.

(8) The person concerned may—

(a) where the Commission does not make submissions in accordance with subsection (6), within the period of 15 working days from the date by which the Commission was invited to make submissions in accordance with that subsection,

(b) where the Commission makes submissions in accordance with subsection (6), with the period of 15 working days from the date on which the person is provided with a copy of those submissions, or

(c) within such further period as the adjudicator considers appropriate, and specifies when he or she invites written submissions from the person concerned,

make written submissions to the adjudicator in relation to the application of the criteria specified in section 94 , the amount of any financial penalty and in regard to guidelines made by the Commission under section 98 (1)(b) to (e).

(9) When making submissions in accordance with subsection (6), the Commission may, where it considers that there are, or have been, serious or repeated breaches of conditions by a person found to have committed a regulatory breach, recommend to the adjudicator in writing, that either or both the person’s—

(a) general authorisation to provide electronic communications networks or services (other than number-independent interpersonal communications services), or

(b) some or all of the person’s rights of use for radio spectrum and of use for numbering resources,

be suspended or withdrawn on a temporary or permanent basis.

(10) The adjudicator may by notice in writing request the person concerned to provide, in writing, within a period specified in the notice, such information as the adjudicator considers appropriate for the purpose of determining the administrative sanction to be imposed under subsection (1).

Adjudication to take effect when confirmed by High Court

92. (1) An adjudication shall take effect at the time it is confirmed by the High Court under section 109 subject to any order made by a court on an appeal of the adjudication or on an application for leave to appeal the adjudication.

(2) Where an adjudication has taken effect in accordance with subsection (1) any sanction, including any financial penalty, imposed by such adjudication may be enforced without the need for any further judgment of a court.

(3) Where an adjudication has taken effect in accordance with subsection (1) any financial penalty imposed by such adjudication may be enforced by the Commission as a judgment debt.

(4) Where a person fails to comply with an administrative sanction imposed by an adjudication that has taken effect in accordance with subsection (1) the High Court may, on an application to it by the Commission in that behalf—

(a) suspend or withdraw the person’s general authorisation or rights of use,

(b) compel compliance with the adjudication and any administrative sanction imposed, or

(5) The Court may not require the Commission to give an undertaking as to damages as a condition of granting any injunctive relief under subsection (4)(c).

Notice of adjudication

93. (1) As soon as practicable after the adjudicator has made a decision under section 91 , the adjudicator shall provide the Commission with the decision.

(2) The Commission shall within 7 days of receipt of the decision of the adjudicator under section 91 give notice in writing of the decision to the person concerned.

(3) The notice under subsection (2) shall—

(a) include a copy of the decision of the adjudicator under section 90 (2).

(b) state that, in so far as it imposes any administrative sanction, the adjudication shall not take effect unless it is confirmed by the Court in accordance with section 109 , and

(c) state that, if the person does not appeal any administrative sanction imposed by the decision under section 106 , the Commission shall, as soon as is practicable after the expiration of the period for the making of such an appeal, make an application for confirmation of the adjudication in accordance with section 109 .

(4) The Commission may provide a copy of a notice referred to in subsection (2) to a person other than the person concerned where it considers it appropriate to do so.

(5) A copy of the adjudication shall be published on the website of the Commission.

(6) A decision referred to in subsection (1) and a copy of the adjudication referred to in subsection (3) may contain such redactions as the adjudicator considers necessary and appropriate, in respect of subsection (1) on his or her own motion, or in respect of subsection (2) or (3) upon application of the Commission or any of the persons concerned—

(a) to protect commercially sensitive information,

(b) to protect the rights of the person concerned or any other person, or

(7) A person who receives a copy of a notice under subsection (2) prior to the publication of the adjudication shall not, without the prior authorisation of the adjudicator, disclose the existence or the content of the notice to any other person.

(8) A person who receives a copy of a notice under subsection (2) that contains material redacted from publication under subsection (6) shall not, without the prior authorisation of the adjudicator, disclose the content of the redacted material to any other person.

(9) A person who fails to comply with subsection (7) or (8) commits an offence and is liable—

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

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

Chapter 5

Imposition of administrative sanctions

Requirement to pay financial penalty

94. (1) When determining the amount of a financial penalty, an adjudicator shall have regard to—

(a) the need to ensure that the financial penalty is—

(i) appropriate,

(ii) effective,

(iii) proportionate to the regulatory breach, and

(iv) dissuasive (including whether it will act as a sufficient deterrent to ensure that any similar regulatory breach will not occur in the future),

(b) the seriousness of the regulatory breach,

(i) a person that is not a natural person, the turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred, or

(ii) a natural person, the annual income of the person on whom the financial penalty is to be imposed, in the year preceding the year in which the regulatory breach last occurred,

(d) the extent of any failure by the person to cooperate with the investigation concerned, whether or not such failure is prosecuted,

(e) any excuse or explanation offered by the person for the regulatory breach or failure to cooperate with the investigation concerned,

(f) any gain (financial or otherwise) made, or loss avoided, by the person, or by any other person in which the first-named person has a financial interest, as a consequence of the regulatory breach,

(g) the amount of any loss suffered, or costs incurred, by any person as a result of the regulatory breach,

(h) the effect of the regulatory breach on other operators, consumers and other end-users,

(i) the duration of the regulatory breach,

(j) the number of times the regulatory breach has occurred,

(k) whether or not the regulatory breach continued after the person was served with a notice of suspected non-compliance,

(l) where applicable, the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the person intended to prevent such a regulatory breach from occurring,

(m) where applicable, the extent and timeliness of any steps taken to end the regulatory breach and any steps taken to remedy the consequences of the regulatory breach,

(n) whether a financial penalty in respect of a similar regulatory breach has already been imposed on the person by a court or a competent authority, including by the Commission,

(o) any precedents set by a court or a competent authority, including the Commission, in respect of a similar regulatory breach,

(p) where applicable, the amount of any compensation paid or to be paid in accordance with section 96 ,

(q) any specific factors, criteria or methodology relevant to paragraphs (a) to (o) prescribed by the Minister for the purposes of this subsection, and

(r) any guidelines made by the Commission under section 98 in respect of the calculation of the amount of a financial penalty.

(2) The Commission may make rules for the purposes of the implementation of this section.

(3) The adjudicator may, having imposed a financial penalty on a person (in this subsection referred to as the “sanctioned person”) in accordance with this section and where he or she considers that it is necessary to do so in order to ensure that the penalty be appropriate, effective, proportionate and dissuasive, impose the penalty (whether jointly with or separately to the sanctioned person) on either or both of the following:

(a) a subsidiary of the sanctioned person;

(b) a person of which the sanctioned person is a subsidiary.

(4) The following shall apply for the purposes of this section:

(a) “subsidiary” shall have the same meaning as it has in section 7 of the Companies Act 2014 ;

(b) where a person is a partnership, for the purposes of the application to it of the definition of “subsidiary”—

(i) references to voting rights attaching to shares in a company shall be construed as references to votes or other rights exercisable by the partners in a partnership giving those partners the potential to exercise control or dominant influence over the activities of the partnership, and

(ii) references to a company’s constitution shall be construed as references to any agreement or practice governing or concerning the operation of the partnership;

(c) where a person is an unincorporated association, for the purposes of the application to it of the definition of “subsidiary undertaking”—

(i) references to voting rights attaching to shares in a company shall be construed as references to votes or other rights exercisable by the members of the unincorporated association giving those members the potential to exercise control or dominant influence over the activities of the unincorporated association, and references to a company’s constitution shall be construed as references to the constitution or of any agreement or practice governing or concerning the operation of the unincorporated association, and

(ii) references to a company’s constitution shall be construed as references to the constitution or of any agreement or practice governing or concerning the operation of the unincorporated association.

(5) The maximum amount of a financial penalty that an adjudicator may impose on a person under this Part in respect of a regulatory breach shall be—

(a) in the case of a person other than a natural person, the greater of €5 million and 10 per cent of the turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred in the State, and

(b) 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, in the year preceding the year in which the regulatory breach last occurred.

Requirement to pay refund

95. (1) 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.

(2) No maximum or minimum amount shall apply to any refund under subsection (1).

Requirement to pay compensation

96. (1) This section applies to a requirement to pay compensation in respect of a regulatory breach.

(2) An adjudicator may require compensation to be paid to an end-user in respect of a regulatory breach notwithstanding that the end-user may have received a refund.

(3) When determining the amount of compensation to be paid by a person in respect of a regulatory breach, an adjudicator shall take account of at least the following factors, to the extent that they are relevant to the breach:

(a) the need to ensure that the compensation is appropriate and proportionate;

(b) the amount of any loss suffered, or costs incurred by any person affected by the breach;

(c) the effect of the breach on any person affected by the breach, including any distress, inconvenience or emotional upset caused by the breach;

(d) whether the regulatory breach continued after the person was served with a notice of suspected non-compliance;

(e) if applicable, the extent and timeliness of any steps taken to end the regulatory breach and any steps taken to remedy the consequences of the regulatory breach;

(f) any relevant precedents set by a court or the Commission.

(4) The maximum amount of compensation that a provider may be required to pay to an end-user is €5,000.

(5) Where a regulatory breach is committed by a person other than a natural person the maximum amount of compensation that an adjudicator may require it to pay to all the persons affected by the regulatory breach shall not exceed the greater of—

(a) €5,000,000, and

(b) 10 per cent of the annual turnover of the person in the State in the financial year ending in the year immediately before the financial year in which the regulatory breach last occurred.

(6) Where a regulatory breach is committed by a natural person the maximum total amount of compensation that an adjudicator may require him or her to pay in respect of that breach to all of the persons affected shall not exceed the greater of—

(a) €500,000, and

(b) 10 per cent of annual income of the person on whom the financial penalty is to be imposed, in the year preceding the year in which the regulatory breach last occurred.

(7) If compensation is required to be paid to more than one person following a finding that a person has committed a regulatory breach and the total amount of such compensation exceeds the maximum limit provided for in subsection (5) or (6), the compensation shall be reduced in proportion to the sum of all claims for compensation against the maximum limit.

(8) Where an adjudicator decides to impose both a financial penalty and a requirement to pay compensationin respect of a regulatory breach the cumulative maximum amount of the financial penalty and compensation shall not exceed the relevant limit set out in subsection (5) or (6).

Suspension or withdrawal of authorisation or rights of use

97. Where an adjudicator receives a recommendation from the Commission under section 91 (9) 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, either or both, the general authorisation of a person to provide electronic communications networks or services (other than number-independent interpersonal communications services) and some or all of the person’s rights of use for radio spectrum and of use for numbering resources.

Guidelines

98. (1) The Commission may, subject to this Act and any regulations and rules made under this Act, and having regard to the fairness and efficiency of the procedures under this Part, prepare and make guidelines in relation to any matter provided for by or under this Part, including—

(a) the conduct of oral hearings,

(b) the imposition of administrative sanctions (including the factors applicable to any financial penalty to be imposed under section 91 , and the method of calculation of financial penalties),

(d) the award of refunds,

(e) the suspension or withdrawal of authorisation or rights of use for radio spectrum or rights of use for numbering resources,

(f) the decision to carry out an investigation where there is evidence of a breach and the conduct of such investigations, including the content of referral reports and other reports of authorised officers,

(g) the general policies of the Commission.

(2) In making an adjudication, subject to this Act and any regulations and rules made under this Act, an adjudicator shall apply guidelines made and published by the Commission under subsection (1) and by BEREC unless the adjudicator considers that there is a good and substantial reason not to do so.

(3) The Commission may amend or revoke guidelines made under subsection (1).

(4) The Commission shall publish any guidelines made under subsection (1), and any amendment to or revocation of those guidelines, on the website of the Commission.

Regulations in relation to certain matters

99. The Minister may provide in regulations for any matter referred to in paragraphs (a) to (f) of section 98 (1).

Chapter 6

Admissibility of certain evidence

Admissibility of evidence before Commission

100. (1) The type of proof that is admissible as evidence in proceedings under this Part or the Principal Act (whether criminal or civil, including proceedings before the Commission or an adjudicator) 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, provided that the evidence referred to would have been admissible before a court were it before a court.

(2) If a document contains a statement by a person specified in subsection (3) asserting that an act has been done, or is, or was, proposed to be done, by another person, being an act that relates to a regulatory breach (the “relevant act”) then subject to the conditions specified in subsection (4) being satisfied, that statement shall be admissible in proceedings in respect of the regulatory breach as evidence that the relevant act was done by that other person or was proposed (at the time the statement was made, or, as the case may be, at a previous time) to be done by him or her.

(3) The person referred to in subsection (2) is a person who has done an act of the kind referred to in that subsection in relation to the regulatory breach (whether or not the same as the act which the other person referred to in that subsection is alleged to have done or proposed to do).

(4) The conditions referred to in subsection (2) are that the document 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 tender the document in evidence, and

(b) has been prepared otherwise than in response to any enquiry made or question put by a member or officer of the Commission, 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.

(5) In estimating the weight, if any, to be attached to evidence admitted by virtue of this section, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(6) Where the proof admitted in evidence by virtue of this section comprises a statement by a person—

(a) any evidence which, if the person who made the statement had been called as a witness, would have been admissible as relevant to his or her credibility as a witness shall be admissible for that purpose,

(b) evidence may, with the leave of the court or adjudicator seised of the proceedings, 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-examination as relevant to his or her credibility but of which evidence could 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 or not) a statement which is inconsistent with it shall, if not already admissible by virtue of any rule of law or other enactment, be admissible for the purpose of showing that he or she has contradicted himself or herself.

(7) Nothing in this section shall prejudice the admissibility in any proceedings under this Act before a court or an adjudicator of any document, as evidence of any matters stated in it—

(a) that is so admissible by virtue of any rule of law or other enactment, or

(b) in respect of adjudicators, that would be admissible before a Court hearing civil proceedings by virtue of any rule of law or other enactment.

(8) The provisions of Chapter 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 shall apply to proceedings under this Act (whether criminal or civil, including proceedings under Chapters 1 to 5 and Part 6 ).

Chapter 7

Restrictions on disclosure of certain information

101. (1) 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.

(2) Subject to subsection (3), and save in accordance with law, an adjudicator, an authorised officer, the Commission and its respective servants or agents shall not, without reasonable excuse, disclose to any person—

(a) any confidential information obtained by virtue of the exercise of powers conferred by or under this Act, or

(b) any information obtained by virtue of the exercise of powers conferred by or under this Part or the Principal Act in relation to an investigation under this Part or the Principal Act where that information was given under power of compulsion.

(3) Notwithstanding subsection (2) an adjudicator, the Commission and its servants or agents may disclose information obtained by virtue of the exercise of powers conferred by or under this Act or the Principal Act where such disclosure is—

(a) permitted by this Act or the Principal Act,

(b) otherwise permitted by law, or

(4) Information provided to any person pursuant to subsection (3) may contain such redactions as an adjudicator or the Commission or an authorised officer may consider necessary and appropriate—

(a) to protect commercially sensitive information,

(b) to protect the rights of the parties or any other person, or

(5) A person who contravenes subsection (2) commits an offence and is liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.

(6) The following categories of information obtained by a party during investigations by an authorised officer, or administrative sanctions proceedings before an adjudicator under this Act, shall not be used by that party in proceedings before a court prior to the authorised officer or the Commission or an adjudicator, as the case may be, having closed such proceedings with respect to all parties under investigation, whether by making a decision under section 90 or section 91 :

(a) information that was prepared by persons specifically for investigations by an authorised officer or administrative sanctions proceedings before an adjudicator;

(b) information that an authorised officer or an adjudicator has drawn up and sent to the parties in the course of an investigation or administrative sanctions proceedings;

(7) In this section, “applicable provisions” means section 38A and sections 13D and 39 of the Principal Act.

Confidentiality rings

102. (1) Where the Commission or an adjudicator provides, or otherwise makes available, 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, is provided subject to this section.

(2) A document, or part of a document, provided subject to this section may not be viewed by, or shared with, any person other than one or more of the following, as the Commission may specify:

(a) the person to whom the document is provided or otherwise made available;

(b) a legal adviser, or other professional adviser, of the person to whom the document is provided or otherwise made available;

(3) A person who allows a document provided to the person subject to this section to be viewed by, or shared with, a person other than in accordance with this section commits an offence and is liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months or both.

Chapter 8

Appeals, confirmation and judicial review of certain decisions

Interpretation (Chapter 8 of Part 7)

103. In this Chapter, “Court” means the High Court.

Decisions reviewable only by appeal under this Chapter

104. (1) Neither—

(a) an urgent interim measure, nor

(b) an adjudication,

shall be challenged, including as to its validity, other than by way of an appeal, in the case of an urgent interim measure, under section 105 , or, in the case of an adjudication, under section 106 .

(2) For the avoidance of doubt, in respect of a decision under section 57 , 90 or 91 no proceeding (including an application for judicial review whether in accordance with section 112 or otherwise) may be brought before the courts other than an appeal under section 105 in the case of a decision under section 57 or, in the case of a decision under section 90 or 91 , an appeal under section 106 or an application to have the decision confirmed under section 109 .

Appeal against urgent interim measures notice

105. (1) 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 under section 57 .

(2) On application, the Court may extend the period within which an appeal may be brought under subsection (1), where it is satisfied that—

(a) there is exceptional, good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to bring an appeal within the period provided for in subsection (1) were outside the control of the applicant for the extension.

(3) Where an appeal is made under subsection (1)—

(a) the appellant may apply to the Court to have the urgent interim measure suspended until such time as the appeal is determined, and

(b) the Court may, if it considers it appropriate to do so having regard to all the circumstances, order that the urgent interim measure or part thereof, be suspended until the appeal is determined, or until such other time as the Court may order.

(4) In any appeal under subsection (1), the Court may not require the Commission to give an undertaking as to damages as a condition of granting any order.

Appeal against adjudication

106. (1) 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 under section 93 (2).

(2) On application, the Court may extend the period within which an appeal may be brought under subsection (1), where it is satisfied—

(a) that there is exceptional, good and sufficient reason for doing so,

(b) that the circumstances that resulted in the failure to bring an appeal within the period provided for in subsection (1) were outside the control of the applicant for the extension, and

(c) where an application for confirmation has been brought under section 109 , that the Court has neither heard nor determined such application.

(3) Where an application for confirmation has been brought pursuant to section 109 in relation to an adjudication the subject of an appeal under this section, the Court may, upon application or of its own motion, stay the proceedings under section 109 .

(4) Where the Court confirms an adjudication that imposes an administrative sanction, or substitutes its own decision for the adjudication of an adjudicator and, as part of such adjudication, imposes an administrative sanction, the Court may set a time limit for the payment of any financial penalty, compensation or refund required to be paid.

Conduct of appeals

107. (1) The respondent to an appeal shall be the Commission.

(2) A person that brings an appeal,or an application under section 105 (3)(a)—

(a) may include in such appeal or application, as the case may be, any ground that could, but for section 104 , be relied upon by the appellant in an application seeking judicial review, and

(b) shall, on the same date as it makes such appeal or application, as the case may be, notify the respondent of the fact that it has made the appeal or application, and of the grounds on which it has made the appeal or application.

(3) The Court may, for the purpose of ensuring the efficient, fair and timely determination of an appeal, give directions in respect of the conduct of the appeal.

(4) An appellant shall, when making an appeal precisely state all of the grounds in law and fact upon which the appeal is made and shall provide to the Court all of the documents and evidence which it is alleged support the granting of the appeal or upon which the appellant intends to rely to support those grounds.

(5) A party to an appeal other than the appellant shall, when responding to an appeal, state all of the grounds upon which he or she responds to the appeal and provide to the Court all of the documents and evidence upon which he or she intends to rely to support those grounds.

(6) Subject to subsection (7), a party to an appeal shall not be entitled during the course of an appeal to make submissions to the Court other than submissions related to the grounds stated, or documents and evidence provided under subsections (4) and (5).

(7) The Court may, upon application and where it considers it necessary for the fair and proper determination of an appeal, require or permit a party to an appeal to—

(a) make submissions to the Court other than submissions related to the grounds stated or documents and evidence provided under subsections (4) and (5), and

(b) provide documents or evidence to the Court other than documents or evidence provided under subsections (4) and (5).

(8) Notwithstanding subsection (7), the Court shall refuse to consider submissions, documents or evidence where it considers that—

(a) the submissions, documents or evidence are not relevant to the appeal, or

(b) it is appropriate to do so in order to avoid undue repetition of submissions.

(9) Where the Court has granted leave to deliver additional submissions, documents or evidence on an application under subsection (7), the Court shall give directions as to the scope, form and time-frame for delivery of such additional submissions, documents or evidence.

(10) The Court may receive evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner.

(11) The Court, on hearing an appeal against a decision, may consider—

(a) whether the jurisdiction existed to make the decision,

(b) whether the law was correctly applied in reaching the decision,

(d) in the case of an appeal against an adjudication, whether an administrative sanction was imposed as part of the adjudication that was appropriate, effective, proportionate and dissuasive.

(12) In considering an appeal, the Court shall have regard to—

(a) the record of the decision the subject of the appeal,

(b) the grounds stated by the parties to the appeal, and documents and evidence relied upon by the parties to support those grounds, under subsections (4) and (5), and

(13) The Court may, on the hearing of an appeal against a decision—

(a) confirm the decision, or

(b) 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, and—

(i) remit the decision for reconsideration by the adjudicator, or, in the case of a decision to serve an urgent interim measures notice, the Commission subject to such directions as the Court considers appropriate, including, in the case of a decision by an adjudicator, whether the matter should be reconsidered by another adjudicator, or

(ii) vary the decision and substitute such other decision as the Court considers appropriate.

(14) The Court shall, in determining an appeal act as expeditiously as possible consistent with the administration of justice, and shall have particular regard to the need for expedition in appeals under section 105 (1).

Orders for costs by Court on appeal

108. The Court may in its discretion award the costs of an appeal as if section 88 applied to such an award.

Court confirmation of adjudication

109. (1) Where a person does not appeal to the Court against an adjudication within the period provided for in section 106 (1) the Commission shall, subject to subsection (11), as soon as practicable after the expiration of the period allowed for such an appeal, make an application to the Court for the confirmation of that adjudication.

(2) An application by the Commission under subsection (1) shall include a copy of the adjudication together with the documents and evidence that were before the adjudicator which are referred to in that adjudication, and may include any other documents and evidence which were before the adjudicator.

(3) Notice of an application under subsection (1) shall be served by the Commission on the person the subject of the adjudication within 7 days of the Commission lodging the application in Court.

(4) The notice referred to in subsection (3) shall, where possible, specify the time fixed by the Court for the hearing of the application, and shall enclose copies of all the papers lodged in Court in relation to the application under subsection (1).

(5) The Court shall, on the hearing of an application under subsection (1), confirm the adjudication the subject of the application unless the Court, on the basis of the findings of fact in the adjudication (which are to be accepted as final by the Court), determines that—

(a) the adjudication contains an error of law which is—

(i) manifest from the record of the adjudication, and

(ii) fundamental so as to deprive the adjudication of its basis,

(b) the administrative sanction imposed was manifestly—

(i) disproportionate,

(ii) in excess of the sanction required to be dissuasive,

(iii) in excess of the sanction required to be effective, or

(iv) in excess of the sanction required to be appropriate.

(6) The Court—

(a) where it makes a determination referred to in subsection (5)(a), or both a determination referred to in subsection (5)(a) and a determination referred to in subsection (5)(b), in relation to an application under subsection (1), shall remit the matter for reconsideration by an adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(i) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and

(ii) the matter should be reconsidered by another adjudicator,

and

(b) where it makes a determination referred to in subsection (5)(b), but does not make a determination referred to in subsection (5)(a), in relation to an application under subsection (1) may—

(i) order either or both that a lesser amount be substituted for the amount of the financial penalty, compensation or refund, and that any suspension or withdrawal of authorisation or rights of use specified in the adjudication be reduced or removed, and confirm the adjudication subject to such substitution, and

(ii) where the Court does not make an order referred to in subparagraph (i) and considers that the interests of justice so require, remit the matter for reconsideration by an adjudicator, subject to such directions as the Court considers appropriate including, as the Court sees fit, directions as to whether or not—

(I) the adjudicator should be limited to reconsidering a specific aspect of an adjudication, and

(II) the matter should be reconsidered by another adjudicator.

(7) The Court shall hear the application under subsection (1) on the evidence before the adjudicator.

(8) The Court shall, in determining an application under subsection (1), act as expeditiously as possible consistent with the administration of justice.

(9) The Court may in its discretion award the costs of an application under this section as if section 88 applied to such an award.

(10) Where the Court confirms or substitutes its own decision for the decision of an adjudicator imposing a requirement to cease a regulatory breach, a requirement to take specified measures to remedy the breach, a financial penalty or a requirement to pay compensation or a refund, the Court may set a time limit for the requirement to be carried out or the payment of the financial penalty or compensation or refund concerned.

(11) The Commission shall, prior to making an application under subsection (1), seek the consent in writing of the person to the confirmation of the adjudication of the adjudicator.

(12) Where a person consents in writing to the adjudication, the application under subsection (1) (and any remaining steps in such application) may be made ex parte.

Publication of adjudication

110. The Commission shall publish an adjudication confirmed by the Court under section 109 (save where such publication would, in the opinion of the Commission, prejudice the achievement of the objectives of this Act) subject to such redactions as the Commission may consider necessary and appropriate in order to protect the rights of the parties or any other person, to protect commercially sensitive information, or for any other good and sufficient reason, on the website of the Commission as soon as practicable after the adjudication is confirmed.

Adjudicator may refer question of law to Court

111. (1) An adjudicator may, on her or his own initiative or at the request of the Commission or a person the subject of a referral under section 71 , refer to the Court for decision by way of case-stated a question of law arising at a hearing on a referral under section 71 .

(2) Where a question has been referred under subsection (1), the adjudicator shall not, in relation to a referral under section 71 to which the hearing relates—

(a) make a decision under section 90 or 91 to which the question is relevant while the reference to the Court is pending, or

(b) proceed in a manner, or make a decision under section 90 or 91 , that is inconsistent with the Court’s decision on the question.

(3) Where a question is referred to the Court under subsection (1)—

(a) the adjudicator shall send to the Court all documents before the adjudicator that are relevant to the matter in question, and

(b) at the end of the proceeding in the Court in relation to the reference, the Court shall cause the documents to be returned to the adjudicator.

Judicial review

112. (1) The validity of a decision made or an act done by the Commission (including by an authorised officer or adjudicator) in the performance of a function under Chapters 1 to 7 or Part 6 (whether such function is performed by way of powers conferred by or under this Act or otherwise) shall not be challenged other than—

(a) by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (in this section referred to as “Order 84”), and in accordance with this section, or

(b) 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.

(2) Notwithstanding section 104 , a person affected by, but not the subject of, a decision under section 90 or 91 may, not later than 14 days after the decision is published, apply to the Court by way of an application for judicial review under Order 84 and in accordance with this section.

(3) At any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (1) applies and which relates to a matter for the time being before the Commission (including a matter before an adjudicator), the Commission may apply to the Court to stay the proceedings pending the making of a decision by the Commission (including a decision by an adjudicator) in relation to the matter concerned.

(4) On the making of an application to stay proceedings referred to in subsection (3), the Court may, where it considers that the matter before the Commission (including an adjudicator and an authorised officer) is within the jurisdiction of the Commission (including an adjudicator and an authorised officer), make an order staying the proceedings concerned on such terms as it thinks fit.

(5) Subject to subsection (6), an application for leave to apply for judicial review under Order 84 in respect of a decision or other act to which subsection (1) applies shall be made in respect of a decision made or an act done under Chapters 1 to 7 or Part 6 not later than 28 days from the date on which the notice of the decision or act was first sent or published as the case may be or, if notice of the decision or act was not sent or published, from the date on which the person or persons became aware of the decision or act.

(6) The Court may extend the period provided for in subsection (5) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

(7) An application for leave under this section shall be made by motion ex parte and shall be grounded in the manner specified in Order 84 in respect of an ex parte motion for leave.

(8) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the Commission or the person concerned or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(9) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of an ex parte motion for leave)—

(a) if the application relates to a decision made or other act done by the Commission (including an adjudicator and an authorised officer) in the performance or purported performance of a function under this Act or the Principal Act, to the Commission (including an adjudicator and an authorised officer) concerned, and

(b) to any other person specified for that purpose by order of the Court.

(10) The Court may—

(a) on the consent of all of the parties, or

(b) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.

(11) The Court shall not grant leave under this section unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed,

(b) the applicant is materially affected by or has a sufficient interest in the matter which is the subject of the application, and

(12) If the court grants leave under this section, no grounds shall be relied upon in the application for judicial review under Order 84 other than those determined by the Court to be substantial under subsection (11)(a).

(13) The Court may, as a condition for granting leave under this section, require the applicant for such leave to give an undertaking as to damages.

(14) If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to which subsection (1) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.

(15) The Court shall, in determining an application under this section or an application for judicial review on foot of such leave—

(a) act as expeditiously as possible consistent with the administration of justice, and

(b) give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section.

Appeals to Court of Appeal

113. (1) An appeal to the Court of Appeal shall lie in respect of a determination of the High Court on an appeal under section 106 in respect of a decision by an adjudicator under section 90 or 91 .

(2) The determination of the High Court on—

(a) an appeal under section 105 against an urgent interim measures notice,

(b) an application for confirmation under section 109 ,

(c) an application for judicial review of any other decision made or act done under this Act by the Commission (including decisions made or acts done under this Act by an authorised officer or by an adjudicator),

(d) a reference to the Court by way of case-stated by an adjudicator under section 111 , or

(e) an application to the High Court for compliance with an urgent interim measure under section 57 ,

shall be final and no appeal shall lie from the decision of the High Court to the Court of Appeal in any case save with leave of the High Court, which leave shall only be granted where the High Court certifies that its 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.

(3) In respect of an application for confirmation under section 109 , where the point of law which would otherwise be certified is a point that could have been brought by way of an appeal under section 106 , the High Court may only in exceptional circumstances grant leave to appeal to the Court of Appeal under subsection (2).

(4) Subsection (2) shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(5) On an appeal from a determination of the High Court to which subsection (2) applies, the Court of Appeal shall—

(a) have jurisdiction to determine only the point of law certified by the High Court under subsection (2) (and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

Treatment of amounts paid to Commission pursuant to Part 7

114. A payment received by the Commission of any amount due to it pursuant to this Part shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.

Non-applicability of limitation periods to certain actions

115. An urgent interim measures notice, a notice of suspected non-compliance, or a supplementary notice of suspected non-compliance, may be served, and a referral under section 68 (3)(c) or 71 may be made,by the Commission at any time notwithstanding—

(a) any provision (other than section 11A) of the Statute of Limitations Act 1957 , and

(b) any provision of the Statute of Limitations (Amendment) Act 1991 .

Commission to collect information relating to appeals and decisions to grant interim measures

116. (1) The Commission shall collect information on the general subject matter of appeals under this Chapter, the number of appeals and the duration of appeal proceedings and the number of decisions to grant urgent interim measures.

(2) The information collected by the Commission under subsection (1) shall be provided to the Minister annually or as requested by the Minister.

S.I. No. 500/2023 –

Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (Part 7) Regulations 2023

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 27th October, 2023.

I, EAMONN RYAN, Minister for the Environment, Climate and Communications, in exercise of the powers conferred on me by sections 75 , 78 and 80 of the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (No. 4 of 2023), hereby make the following regulations:

Citation

1. These Regulations may be cited as the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (Part 7) Regulations 2023.

Interpretation

2. (1) In these Regulations –

“Act of 2023” means the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (No. 4 of 2023);

“adjudicator” has the same meaning as it has in Part 7 of the Act of 2023;

“Chief Adjudicator” means the Chief Adjudicator appointed under section 76(3) of the Act of 2023;

“Commissioner” means a member of the Commission;

“division” means an uneven number of adjudicators sitting together for the purpose of a particular adjudication or part of an adjudication;

“legally qualified person” means a person who, for a period of not less than 10 years, has been –

(a) a practising barrister or a practising solicitor within the meaning of the Legal Services Regulation Act 2015 ,

(b) a registered lawyer, having the same right of audience as a practising barrister or a solicitor qualified to practise by virtue of Regulation 10 of the European Communities (Lawyers’ Establishment) Regulations 2003 ( S.I. No. 732 of 2003 ), or

(c) in practice as a barrister or solicitor in a Member State of the European Union, an EEA state, Switzerland or the United Kingdom of Great Britain and Northern Ireland.

Eligibility for nomination as adjudicator

3. (1) The following categories of persons shall be eligible for nomination by the Commission under section 75 of the Act of 2023 for appointment by the Minister as adjudicators:

(a) legally qualified persons;

(b) persons who, in the opinion of the Commission, possess expertise or experience in one or more of the following areas sufficient to enable the person to effectively perform the functions of an adjudicator:

(i) regulation, including regulation of utilities;

(ii) economics;

(iii) law;

(iv) accounting or finance;

(v) telecommunications engineering;

(vi) the electronic communications industry.

(2) A person shall not be eligible for nomination by the Commission under section 75 of the Act of 2023 if the person –

(a) has been convicted on indictment of an offence,

(b) has been convicted of an offence involving fraud or dishonesty,

(d) has had a declaration made against him or her under section 819 of the Companies Act 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) is a member of either House of the Oireachtas,

(f) is a member of the European Parliament, or

(g) holds judicial office.

Term of appointment of adjudicator and renewal

4. (1) The term of appointment of an adjudicator shall be up to 5 years from the date of his or her appointment, as specified in the instrument of appointment.

(2) Notwithstanding paragraph (1), where an employee of the Commission, or a Commissioner, who has been appointed as an adjudicator ceases to be so employed or to be a Commissioner the term of appointment of the person as an adjudicator shall expire on the date on which he or she ceases to be so employed or to be a Commissioner.

(3) Notwithstanding paragraph (1), the term of appointment of an adjudicator shall expire if he or she is –

(a) convicted on indictment of an offence,

(b) convicted of an offence involving fraud or dishonesty,

(d) elected or appointed to hold an office referred to in subparagraph (e), (f) or (g) of Regulation 3(2),

on the date of such conviction, adjudication, election or appointment.

(4) Where the term of appointment of an adjudicator expires by the passage of time, the term of appointment shall, subject to paragraphs (5) and (6), be renewable and the adjudicator shall be deemed to seek such renewal unless he or she, in advance of the expiry, informs the Minister in writing to the contrary.

(5) Where a person seeks, or is deemed to seek, renewal of his or her term of appointment as an adjudicator the Minister shall nominate an independent person (the “assessor”) to assess whether the person continues to satisfy the eligibility criteria set out in Regulation 3.

(6) Where the assessor confirms to the Minister that the person seeking renewal of his or her appointment continues to satisfy the eligibility criteria set out in Regulation 3 the Minister shall, subject to section 76(2) of the Act of 2023, reappoint the person as an adjudicator.

(7) Where a person is appointed as an adjudicator for more than one term he or she shall not serve for a cumulative period of more than 10 years.

Term of appointment of Chief Adjudicator

5. (1) An adjudicator appointed by the Commission to be the Chief Adjudicator shall serve in that position for the term specified by the Commission in the instrument of appointment, which shall be less than or equal to the adjudicator’s term of appointment.

(2) Where the Commission appoints an adjudicator to be the Chief Adjudicator for more than one term he or she shall not serve for a cumulative period of more than 10 years.

Resignation of adjudicator

6. An adjudicator may resign at any time by giving notice in writing to the Minister and such resignation shall take effect on and from the date specified in the notice or the date of receipt of the notice, whichever is later.

Revocation of appointment as adjudicator

7. (1) The Commission shall notify the Minister where it has reasonable grounds to believe that –

(a) an adjudicator has become incapable through ill-health of effectively performing his or her functions,

(b) an adjudicator has engaged in serious misconduct, which may include, but is not limited to, serious or repeated breaches of their obligations under these Regulations or the Act of 2023, or

(c) an adjudicator has engaged in any conduct, including the receipt of remuneration which has the potential to give rise to an actual or perceived conflict of interest during his or her term of appointment and which conflict the Commission considers is likely to continue.

(2) Following a notification under paragraph (1), the Minister shall cause an independent assessment of the information received to be carried out by a person who possesses relevant experience and expertise.

(3) On completion of the assessment, the assessor shall furnish a copy of his or her findings and a recommendation to the Minister, which shall –

(a) where the assessor is of the opinion that an adjudicator has become incapable through ill-health of effectively performing his or her functions, specify the nature of the ill-health and include a medical report, whether procured by the adjudicator in the course of treatment or by the assessor in the course of the assessment,

(b) where the assessor is of the opinion that an adjudicator has engaged in serious misconduct, specify the nature of the serious misconduct alleged,

(c) where the assessor is of the opinion that an adjudicator has engaged in conduct which has the potential to give rise to an actual or perceived conflict of interest during his or her term of appointment, specify the conduct, the nature of the conflict of interest, whether or not in the opinion of the assessor the conflict of interest has arisen, and if so, whether or not it is likely to continue, and the basis for such opinion.

(4) Where a recommendation under paragraph (4) supports the revocation of an adjudicator’s appointment, the Minister shall submit the recommendation to the Government for consideration.

(5) Following consideration of a recommendation submitted in accordance with paragraph (4), the Government may revoke the appointment of the adjudicator.

Functions of Chief Adjudicator

8. The functions of the Chief Adjudicator shall include –

(a) assigning adjudications to an adjudicator or to a division,

(b) re-assigning adjudications from one adjudicator to another where the Chief Adjudicator sees fit to do so,

(c) directing employees of the Commission who have been required to assist adjudicators or an adjudicator (including the Chief Adjudicator) under section 81 of the Act of 2023,

and

(d) directing persons appointed by the Commission to assist adjudicators or an adjudicator (including the Chief Adjudicator) under section 81 of the Act of 2023.

Rules concerning adjudications by adjudicators sitting together

9. (1) Unless the Chief Adjudicator directs otherwise –

(a) a referral for adjudication on consent made pursuant to section 68(3)(c) of the Act of 2023 shall be dealt with by an adjudicator sitting alone, and

(b) a referral for adjudication under section 69(b) of the Act of 2023 shall be dealt with by a division.

(2) The number of adjudicators in a division shall be 3 unless the Chief Adjudicator directs that it is necessary, due to the complexity of the matter being adjudicated upon, that more than 3 adjudicators sit together.

(3) (a) The Chief Adjudicator may assign an adjudicator to a division for any particular period or for any particular adjudication or category of adjudications, as he or she sees fit.

(b) Without prejudice to subparagraph (a) and so far as reasonably practicable –

(i) an adjudicator sitting alone shall be a legally qualified person, and

(ii) at least one adjudicator sitting in a division shall be a legally qualified person.

(4) The conduct of an adjudication by an adjudicator or a division otherwise than in accordance with paragraph (1) or (2) shall not be grounds for challenging any act or decision of that adjudication.

Decisions of divisions

10. (1) Where an adjudication is being determined by a division the Chief Adjudicator shall appoint an adjudicator to act as chairperson of the division.

(2) The decision of a division shall be that of a majority of its members.

(3) Only one decision shall be delivered by a division and no dissenting decisions shall be prepared.

(4) The chairperson of a division shall –

(a) deal with any case-management or procedural issues that arise in any matter assigned to the division, and

(b) provide the Commission with the decision of the division.

Rules concerning terms and conditions of employment and promotion of employees of Commission who act as adjudicators

11. Where an employee of the Commission acts as an adjudicator his or her access to promotion and increments shall not be varied by the Commission in any way that would prejudice his or her independence in the performance of his or her functions.

Person assisting adjudicator may not participate in decision-making

12. A person assisting an adjudicator or a division (whether required under section 81(1)(a) or appointed under section 81(1)(b) of the Act of 2023) shall not participate in the making of the decision of the adjudicator or division under section 90(2) of the Act of 2023.

Measures to ensure independence of adjudicators

13. The Commission shall, at all times, ensure –

(a) effective internal separation between the functions of the Commission and the functions of adjudicators, and

(b) that the structure, policies, practices and functions of, and working arrangements within, the Commission are consistent with section 77 of the Act of 2023.

Policies and of measures to identify and manage conflicts of interest

14. The Commission shall publish policies and implement measures to identify and manage conflicts of interest on the part of –

(a) adjudicators, and

(b) any employee of the Commission or other person (including any consultant or adviser) required or appointed under section 81 of the Act of 2023 to assist an adjudicator or a division.

Annual report by Commission

15. (1) The Chief Adjudicator shall report to the Minister annually on the compliance by adjudicators with the principle of independence under section 77 of the Act of 2023 (including any regulations made thereunder).

(2) The Commission shall report to the Minister annually on the compliance by the Commission with the principle of independence under section 77 of the Act of 2023 (including any regulations made thereunder) and the policies that the Commission has adopted in order to ensure compliance with that principle.

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GIVEN under my Official Seal,

23 October, 2023.

EAMONN RYAN,

Minister for Communications, Climate Action and Environment.7

S.I. No. 501/2023 –

Communications Regulation and Digital Hub Development Agency (Amendment) Act (Remuneration of Adjudicators) Regulations 2023

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 27th October, 2023.

I, EAMONN RYAN, Minister for the Environment, Climate and Communications, in exercise of the powers conferred on me by section 80 (b) of the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (No. 4 of 2023), hereby make the following regulations:

1. These Regulations may be cited as the Communications Regulation and Digital Hub Development Agency (Amendment) Act (Remuneration of Adjudicators) Regulations 2023.

2. In these Regulations “Act of 2023” means the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (No. 4 of 2023);

3. The rate of remuneration of an adjudicator (within the meaning of section 76 of the Act of 2023) shall be €1,000 per day.

4. The rate of remuneration of the Chief Adjudicator appointed under section 76(3) of the Act of 2023 shall be €1,250 per day.

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GIVEN under my Official Seal,

23 October, 2023.

EAMONN RYAN,

Minister for Communications, Climate Action and Environment.

ComReg Enforcement II

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

Commitments

Settlements

Actions by authorised officer following investigation

Referral report

Referral of matter by authorised officer to adjudicator for adjudication

Withdrawal by Commission of matter referred to adjudicator

Power of Commission to share certain documents

Regulations and rules relating to referrals to adjudicator

Adjudicators

Nomination of adjudicators

Appointment of adjudicators

Independence of adjudicators

Regulations to ensure independence of adjudicators

Adjudicators may sit together

Regulations in relation to adjudicators

Assistants to adjudicators

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

Procedure following referral to adjudicator

Notification by adjudicator following referral

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

Actions following referral under section 71

Admissibility of evidence and rules for oral hearings conducted by adjudicators

Powers of adjudicators and offences

Orders for costs in proceedings before adjudicator

Regulations in relation to proceedings before adjudicator

Decision of adjudicator in relation to breach

Decision of adjudicator in relation to administrative sanction

Adjudication to take effect when confirmed by High Court

Notice of adjudication

Imposition of administrative sanctions

Requirement to pay financial penalty

Requirement to pay refund

Requirement to pay compensation

Suspension or withdrawal of authorisation or rights of use

Guidelines

Admissibility of certain evidence

Restrictions on disclosure of certain information

Confidentiality rings

Appeals, confirmation and judicial review of certain decisions

Decisions reviewable only by appeal under this Chapter

Appeal against urgent interim measures notice

Appeal against adjudication

Conduct of appeals

Orders for costs by Court on appeal

Court confirmation of adjudication

Adjudicator may refer question of law to Court

Judicial review

Appeals to Court of Appeal

Treatment of amounts paid to Commission pursuant to Part 7

Non-applicability of limitation periods to certain actions

Commission to collect information relating to appeals and decisions to grant interim measures

Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 (Part 7) Regulations 2023

Communications Regulation and Digital Hub Development Agency (Amendment) Act (Remuneration of Adjudicators) Regulations 2023

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