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Substitution of sections 45 and 46 of Principal Act.
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13.— The Principal Act is amended by substituting the following sections for sections 45 and 46:
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“Undertaking not to overcharge or charge for services not supplied.
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45.— (1) An undertaking shall not impose, or purport to impose, a charge—
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(a) for supplying an electronic communications service or electronic communications product to a consumer that exceeds the amount for that service or product specified—
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(i) in the undertaking’s published tariff of charges, or
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(ii) in a written statement previously made or given to the consumer by the undertaking in relation to that supply,
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or
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(b) for supplying an electronic communications service or electronic communications product to a consumer that was not requested by the consumer, or
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(c) for an electronic communications service or electronic communications product that was requested by a consumer but was not supplied.
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(2) An undertaking that contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000.
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(3) In carrying out an investigation under this Act to ascertain whether an undertaking may be contravening or may have contravened subsection (1), the Commission may conduct an audit of the undertaking’s billing system.
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(4) In this section—
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‘ consumer ’ means a person to whom an electronic communications service or electronic communications product is supplied, otherwise than for the purpose of resupply;
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‘ tariff of charges ’, in relation to an undertaking, includes any list setting out the prices charged by the undertaking for providing electronic communications services or electronic communications products to consumers.
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Commission may apply to High Court for order to restrain repeated or apprehended contravention of section 45.
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46.— (1) If it appears to the Commission that an undertaking—
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(a) is contravening subsection (1) of section 45, or
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(b) has contravened that subsection in the past and may contravene that subsection in the future,
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the Commission may apply to the High Court to make a restraining order under subsection (4). Such an application is to be by motion.
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(2) The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, that undertaking becomes the respondent to the application.
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(3) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Commission may not suffer damage if relief were not granted pending determination of the application.
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(4) On the hearing of an application made under subsection (1), the High Court—
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(a) may make a restraining order requiring the undertaking to cease contravening section 45 and not to repeat the contravention, or
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(b) if it is of the opinion that the application is not substantiated, refuse the application.
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(5) An application for a restraining order may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention or contraventions of section 45 committed by the respondent.
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(6) On hearing the further application, the High Court may, having previously been satisfied that the respondent has contravened section 45 and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount can be more or less than the amount proposed by the Commission.
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(7) The circumstances referred to in subsection (6) include (but are not limited to) the following:
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(a) the duration of the contravention;
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(b) the effect of the contravention on other parties to the relevant decision and on consumers;
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(c) the submission of the Commission with respect to what it considers to be the appropriate amount;
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(d) any excuse or explanation for the contravention provided by the respondent.
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(8) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.
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(9) In this section, ‘consumer’ has the same meaning as in section 45.”.
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