Energy Act 2016

PART 3

Power to Carry Out Investigations and Impose Administrative Sanction

Investigations and administrative sanction

5. The Act of 1999 is amended by inserting after section 54 the following Part:

“PART IX

Power to Carry Out Investigations and Impose Administrative Sanction

Definitions (Part IX and Schedule 4)

55. In this Part and Schedule 4—

‘improper conduct’ means—

(a) failure by the holder of a licence under subsection (1)(b) of section 14 to comply, under subsection (2M)(b) of that section, with such standards of performance as may be specified by the Commission under subsection (2M)(a) of that section in the licence concerned,

(b) failure by the holder of a licence under section 14(1)(e), (g) or (h), as the case may be, to comply, under Regulation 26(1) of the European Communities (Internal Market in Electricity) Regulations 2005 ( S.I. No. 60 of 2005 ), with such standards of performance as may be specified by the Commission under Regulation 26(2) of those Regulations in the licence concerned,

(c) failure by an interconnector operator to comply with the determination of the Commission under section 34A(5),

(d) failure, by the holder of a licence under section 16 (1)(a) of the Gas (Interim) (Regulation) Act 2002 , under section 16(1F) of that Act, to keep, and make available on a request being made, data relating to transactions in gas supply contracts and gas derivatives with wholesale customers, transmission system operators and storage and LNG operators, or

(e) failure by the holder of a licence under subsection (1)(a), (c) or (d) of section 16 of the Gas (Interim) (Regulation) Act 2002 to comply, under subsection (4A)(b) of that section, with such standards of performance as may be specified by the Commission under subsection (4A)(a) of that section in the licence concerned;

‘inspector’ means a person appointed under section 56(1) to be an inspector for the purposes of this Part;

‘investigation’ means an investigation under section 57(1);

‘investigation report’, in relation to an investigation, means a report in writing prepared, following the completion of the investigation, by the inspector appointed under section 57(2) to carry out the investigation;

‘major sanction’ means—

(a) a direction to a specified body that the specified body pay a sum, as specified in the direction, but not exceeding €50,000, to the Commission, being the whole or a part of the cost to the Commission of an investigation of the specified body,

(b) a direction to a specified body that the specified body pay a sum, as specified in the direction, but not exceeding 10 per cent of the turnover of the specified body, to the Commission by way of a financial penalty for improper conduct, by the specified body, specified in the direction, or

(c) any combination of the sanctions specified in paragraphs (a) and (b);

‘minor sanction’ means—

(a) the issue, to a specified body, of—

(i) advice,

(ii) a caution,

(iii) a warning, or

(iv) a reprimand,

or

(b) any combination of any of the sanctions specified in paragraph (a) ;

‘premises’ includes vessel, aircraft, vehicle and any other means of transport, as well as land and any other fixed or movable structure;

‘specified body’ means a person referred to in any of paragraphs (a) to (e) of the definition in this section of ‘improper conduct’;

‘turnover’ means, in relation to a specified body, the turnover of the body in the financial year of the body ending immediately before the financial year in which the improper conduct took place.

Appointment of inspectors

56. (1) For the purposes of this Part—

(a) the Commission may appoint such members of its staff as it thinks fit to be inspectors for such period and subject to such terms as the Commission may determine,

(b) the Commission may appoint such other persons as it thinks fit to be inspectors for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Commission, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, may determine.

(2) Each inspector shall, on his or her appointment, be furnished with a certificate of appointment and, when exercising a power conferred on him or her or performing any function imposed by this Part, shall, if requested by any person thereby affected, produce the certificate or a copy of it, to that person for inspection.

Investigation

57. (1) Where the Commission considers it is necessary to do so for the purpose of the performance of any of the functions conferred on it by or under this Act or any other Act of the Oireachtas, the Commission may cause such investigation as it thinks fit to be carried out to identify any improper conduct by a specified body.

(2) For the purposes of the investigation, the Commission shall appoint an inspector, subject to such terms as it thinks fit—

(a) to carry out the investigation, and

(b) to submit to the Commission an investigation report following the completion of the investigation.

(3) The terms of appointment of an inspector may define the scope of the investigation to be carried out by the inspector, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances.

(4) Where more than one inspector has been appointed to carry out an investigation, the investigation report shall be prepared jointly by the inspectors so appointed and this Part shall, with all necessary modifications, be construed accordingly.

(5) Where the Commission has appointed an inspector to carry out an investigation, the inspector shall, as soon as is practicable after being so appointed—

(a) give notice in writing to the specified body concerned of the matters to which the investigation relates, and

(b) give the specified body—

(i) copies of any documents relevant to the investigation, and

(ii) a copy of this Part,

and

(c) without prejudice to the generality of section 58, afford the specified body an opportunity to respond within 30 days from the date on which it received the notice referred to in paragraph (a), or such further period not exceeding 30 days as the inspector allows, to the matter to which the investigation relates.

Powers of inspectors

58. (1) For the purposes of an investigation, an inspector may—

(a) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any premises at, in or by means of, which any activity of a specified body, authorised by or under any enactment or by any licence or authorisation held by the specified body, is carried on,

(b) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any dwelling occupied by—

(i) a specified body, or

(ii) a director, manager or any member of staff of a specified body,

that carries on an activity referred to in paragraph (a), being a dwelling as respects which there are reasonable grounds to believe records, books, accounts or other documents relating to the carrying on of that activity are being kept in it,

(c) without prejudice to any other power conferred by this subsection, require any person found in or on any premises referred to in any of the preceding paragraphs or any person in charge of or in control of such premises or directing any activity therein referred to in paragraph (a) to produce any records, books, accounts or other documents which it is necessary for the inspector to see for the purposes of the investigation (and the inspector may inspect, examine and copy any such records, books, accounts or other documents so produced or require any such person to provide a copy of them or of any entries in them to the inspector),

(d) require any person referred to in paragraph (c) to afford such facilities and assistance within the person’s control or responsibilities as are reasonably necessary to enable the inspector to exercise any of the powers conferred on the inspector under paragraph (a), (b) or (c),

(e) require any person by whom or on whose behalf data equipment is, or has been, used in connection with an activity referred to in paragraph (a), or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the inspector all reasonable assistance in respect of its use,

(f) require the specified body or the specified body’s employee or agent to give such authority in writing addressed to any bank that the inspector requires for the purpose of enabling the inspection of any account or accounts opened, or caused to be opened, by the specified body at such bank (or any documents relating thereto) and to obtain from such bank copies of such documents relating to such account or accounts for such period or periods as the inspector deems necessary to fulfil that purpose, and

(g) be accompanied by a member of the Garda Síochána if there is reasonable cause to apprehend any serious obstruction in the performance of any of the inspector’s functions under this subsection.

(2) A requirement under subsection (1)(c), (d), (e) or (f) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it.

(3) For the purposes of an investigation, an inspector—

(a) may require a person who, in the inspector’s opinion—

(i) possesses information that is relevant to the investigation, or

(ii) has any records, books, accounts or other documents within that person’s possession or control or within that person’s procurement that are relevant to the investigation,

to provide that information or those records, books, accounts or other documents, as the case may be, to the inspector, and

(b) where the inspector thinks fit, may require that person to attend before the inspector for the purpose of so providing that information or those records, books, accounts or other documents, as the case may be,

and the person shall comply with the requirement.

(4) A requirement under subsection (3) shall specify—

(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with it, and

(b) as the inspector concerned thinks fit—

(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records, books, accounts or other documents concerned, or

(ii) the place to which the person shall send the information or the records, books, accounts or other documents concerned.

(5) A person required to attend before an inspector under subsection (3) —

(a) is also required to answer fully and truthfully any question put to the person by the inspector, and

(b) if so required by the inspector, shall answer any such question under oath.

(6) Where it appears to an inspector that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the inspector may, on notice to that person and with the consent of the Commission, apply in a summary manner to the Circuit Court for an order under subsection (7).

(7) Where satisfied after hearing the application about the person’s failure to comply or fully comply with the requirement in question, the Circuit Court may, subject to subsection (10), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court.

(8) An application under subsection (6) to the Circuit Court shall be made to a judge of that Court for the circuit in which the person the subject of the application ordinarily resides or carries on any profession, business or occupation.

(9) The administration of an oath referred to in subsection (5)(b) by an inspector is hereby authorised.

(10) A person the subject of a requirement under subsection (1), (3) or (5) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.

(11) Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (5) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (17), and this shall be explained to the person in ordinary language by the inspector concerned.

(12) Nothing in this section shall be taken to compel the production by any person of any records, books, accounts or other documents which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege.

(13) An inspector shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (14) authorising the entry.

(14) A judge of the District Court, if satisfied on the sworn information of an inspector that—

(a) (i) there are reasonable grounds for suspecting that any information is, or records, books, accounts or other documents required by an inspector under this section are, held on any premises or any part of any premises, and

(ii) an inspector, in the performance of functions under subsection (1), has been prevented from entering the premises or any part thereof,

or

(b) it is necessary that the inspector enter a private dwelling and exercise therein any of his or her powers under this section,

may issue a warrant authorising the inspector, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any such functions and exercise all or any such powers.

(15) For the purposes of an investigation, an inspector may, if he or she thinks it proper to do so, of his or her own volition or at the request of the specified body to whom the investigation relates, conduct an oral hearing.

(16) Part 1 of Schedule 4 shall have effect for the purposes of an oral hearing referred to in subsection (15).

(17) Subject to subsection (12), a person who—

(a) withholds, destroys, conceals or refuses to provide any information or records, books, accounts or other documents required for the purposes of an investigation,

(b) fails or refuses to comply with any requirement of an inspector under this section, or

(c) otherwise obstructs or hinders an inspector in the performance of functions conferred by or under this Part,

commits an offence and is liable—

(i) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

(18) Subject to subsection (19), where a specified body is convicted summarily of an offence under subsection (17), the court may, after having regard to the nature of the offence and the circumstances in which it was committed, order that any licence or authorisation held by the specified body be revoked and that the former holder be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new licence or authorisation or a particular class of new licence or authorisation.

(19) An order under subsection (18) shall not take effect until—

(a) the ordinary time for bringing an appeal against the conviction concerned or the order has expired without any such appeal having been brought,

(b) such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the conviction or order, as the case may be, is upheld.

(20) Subject to subsection (21), where a specified body is convicted on indictment of an offence under subsection (17), the court shall order that all licences and authorisations held by the specified body be revoked and that the former holder be permanently prohibited from applying for any new licence or authorisation.

(21) An order under subsection (20) shall not take effect until—

(a) the ordinary time for bringing an appeal against the conviction concerned has expired without any such appeal having been brought,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the conviction is upheld.

(22) In this section, ‘records, books, accounts or other documents’ includes copies of records, books, accounts or other documents.

(23) In this section where records, books, accounts or other documents are held or maintained in electronic form, the obligation to produce or provide records, books, accounts or other documents includes an obligation to provide those records, books, accounts or other documents in a legible and comprehensible printed form.

Actions to be taken by inspector upon completion of investigation

59. (1) Subject to subsection (3), where an inspector has completed an investigation, the inspector shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records, books, accounts or other documents provided to the inspector pursuant to any requirement under section 58 or any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 58(15) or otherwise)—

(a) prepare a draft of the investigation report, and

(b) give to the specified body to whom the investigation relates—

(i) a copy of the draft of the investigation report,

(ii) a copy of this section, and

(iii) a notice in writing stating that the specified body may, not later than 30 days from the date on which it received the notice, or such further period not exceeding 30 days as the inspector allows, make submissions in writing to the inspector on the draft of the investigation report.

(2) Subject to subsection (3), an inspector who has complied with subsection (1) following the completion of an investigation shall, as soon as is practicable after—

(a) the expiration of the period referred to in subsection (1)(b)(iii), and

(b) having—

(i) considered the submissions (if any) referred to in subsection (1)(b)(iii) made before the expiration of that period on the draft of the investigation report concerned, and

(ii) made any revisions to the draft of the investigation report which, in the opinion of the inspector are warranted following such consideration,

prepare the final form of the investigation report and submit it to the Commission along with any such submissions annexed to the report.

(3) Where an inspector states, whether in a draft of the investigation report or in the final form of the investigation report, that he or she is satisfied that improper conduct by the specified body to whom the investigation relates has occurred or is occurring, the inspector shall not make any recommendation, or express any opinion, in the report as to any major sanction or any minor sanction, as the case may be, that he or she thinks ought to be imposed on the specified body in respect of such improper conduct in the event that the Commission is also satisfied that improper conduct by the specified body has occurred or is occurring.

Actions to be taken by Commission on receipt of investigation report

60. (1) On receipt of an investigation report submitted to it by an inspector in accordance with section 59(2), the Commission shall consider the report and any submissions annexed to it.

(2) Subject to subsection (3), where the Commission has considered an investigation report (and any submissions annexed to it) under subsection (1), the Commission—

(a) if it is satisfied that improper conduct by the specified body to whom the investigation relates has occurred or is occurring, shall, subject to subsection (6) and section 61—

(i) impose a minor sanction on the specified body, or

(ii) impose a major sanction on the specified body,

as it thinks fit in the circumstances of the case,

(b) if it is not satisfied that improper conduct has occurred or is occurring but is of the opinion that a further investigation of the specified body is warranted, shall cause the further investigation to be carried out pursuant to its powers under section 57, or

(c) if it is not satisfied that improper conduct has occurred or is occurring and is not of the opinion that a further investigation of the specified body is warranted, shall take no further action.

(3) Where the Commission has considered an investigation report (and any submissions annexed to it) in accordance with subsection (1), the Commission may, if it considers it proper to do so for the purposes of assisting it to make a decision under subsection (2), or for the purposes of observing fair procedures, for those purposes—

(a) conduct an oral hearing, or

(b) give to the specified body to whom the investigation concerned relates—

(i) a copy of the investigation report, and

(ii) a notice in writing stating that the specified body may, not later than 30 days from the date it received the notice, or such further period not exceeding 30 days as the Commission allows, make submissions in writing to the Commission on the investigation report.

(4) Part 2 of Schedule 4 shall have effect for the purposes of an oral hearing referred to in subsection (3)(a).

(5) The Commission shall, as soon as is practicable after making a decision under subsection (2), give notice in writing of the decision and the reasons for the decision to the specified body to whom the investigation concerned relates and, if subsection (2)(a) applies in the case of that specified body, set out in that notice—

(a) the minor sanction or major sanction imposed on the specified body for the improper conduct specified in the notice in respect of which the Commission is satisfied as referred to in that subsection, and

(b) the reasons for the imposition of such minor sanction or major sanction, as the case may be.

(6) Where subsection (2)(a) applies in the case of a specified body the Commission shall, in deciding the sanction to be imposed on the specified body, take into consideration the matters referred to in section 65.

(7) The Commission may publish particulars, in such form and manner and for such period as it thinks fit, of any imposition of any major sanction or any minor sanction, as the case may be, on a specified body pursuant to a decision confirmed or given under section 62 or 63, as the case may be.

Confirmation of High Court required before decision to impose sanction takes effect

61. A decision under section 60(2) to impose a major sanction on a specified body shall not take effect unless the decision is confirmed by the High Court under section 62 or 63, as the case may be.

Appeal to High Court against decision to impose major sanction

62. (1) A specified body, the subject of a decision under section 60(2)(a) to impose a major sanction, may, not later than 30 days from the date the specified body received the notice under section 60(5), appeal to the High Court against the decision.

(2) The High Court may, on the hearing of an appeal by a specified body under subsection (1), consider any evidence adduced or argument made, whether or not adduced or made to an inspector or the Commission.

(3) Subject to subsection (4), the High Court may, on the hearing of an appeal by a specified body under subsection (1) —

(a) either—

(i) confirm the decision the subject of the appeal, or

(ii) cancel that decision and replace it with such other decision as the Court considers appropriate, which may be a decision—

(I) to do either or both of the following:

(A) impose a different major sanction on the specified body;

(B) impose a minor sanction on the specified body,

or

(II) to impose neither a major sanction nor a minor sanction on the specified body,

and

(b) whether paragraph (a)(i) or (ii) is applicable, make such order as to costs as it thinks fit in respect of the appeal.

(4) The High Court shall, for the purposes of subsection (3)(a)(i) or (ii)(I), take into consideration the matters referred to in section 65.

Application to High Court to confirm decision to impose major sanction

63. (1) Where a specified body does not, within the period allowed under section 62(1), appeal to the High Court against a decision under section 60(2)(a) to impose a major sanction on the specified body, the Commission shall, as soon as is practicable after the expiration of that period by motion on notice to the specified body make an application in a summary manner to the High Court for confirmation of the decision.

(2) The High Court shall, on the hearing of an application under subsection (1), confirm the decision under section 60(2)(a) unless the Court considers that there is good reason not to do so.

Provisions supplemental to decisions of High Court

64. (1) The decision of the High Court on an appeal under section 62 or an application made under section 63 is final except that the Commission or the specified body the subject of the decision may, by leave of the Court or the Court of Appeal, appeal against the decision to the Court of Appeal on a specified question of law.

(2) Where the High Court confirms or gives a decision under section 62(3) or 63(2), the Commission shall, as soon as is practicable after the decision is confirmed or given, as the case may be, give notice in writing of the decision to the specified body the subject of the decision.

(3) Any amount specified in paragraph (a) or (b) of the definition of ‘major sanction’ in section 55 due to the Commission pursuant to a decision confirmed or given under section 62(3) or 63(2), as the case may be, by the High Court shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform may direct.

(4) The Commission may recover, as a simple contract debt in any court of competent jurisdiction, from the person by whom it is payable any amount due and owing to the Commission pursuant to a decision confirmed or given under section 62(3) or 63(2), as the case may be, by the High Court.

Matters to be considered in determining sanction to be imposed

65. The Commission or the High Court, as appropriate, in considering—

(a) the minor sanction or major sanction to be imposed on a specified body pursuant to section 60(2)(a), or

(b) the minor sanction or major sanction (if any) to be imposed on a specified body pursuant to a decision confirmed or given under section 62(3) or 63(2), as the case may be,

shall take into account the circumstances of the improper conduct concerned (including the factors occasioning it) and, without prejudice to the generality of the foregoing, may have regard to—

(i) the need to ensure that any sanction imposed—

(I) is appropriate and proportionate to the improper conduct, and

(II) if applicable, will act as a sufficient incentive to ensure that any like improper conduct will not occur in the future,

(ii) the seriousness of the improper conduct,

(iii) the turnover of the specified body in the financial year of the body ending in the year immediately before the financial year in which the improper conduct last occurred,

(iv) the extent of any failure by the specified body to co-operate with the investigation concerned of the specified body,

(v) any excuse or explanation by the specified body for the improper conduct or failure to co-operate with the investigation concerned,

(vi) any gain (financial or otherwise) made by the specified body or by any person in which the specified body has a financial interest as a consequence of the improper conduct,

(vii) the amount of any loss suffered or costs incurred as a result of the improper conduct,

(viii) the duration of the improper conduct,

(ix) the repeated occurrence of improper conduct by the specified body,

(x) if applicable, the continuation of the improper conduct after the specified body was notified of the investigation concerned,

(xi) if applicable, the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the specified body intended to prevent improper conduct from occurring,

(xii) if applicable, the extent and timeliness of any steps taken to end the improper conduct and any steps taken for remedying the consequences of the improper conduct,

(xiii) whether a sanction in respect of like improper conduct has already been imposed on the specified body by a court, the Commission or another person, and

(xiv) any precedents set by a court, the Commission or another person in respect of previous improper conduct.

Powers of Commission

66. The powers conferred on the Commission by this Part are without prejudice to the powers conferred on it by or under this Act or any other Act of the Oireachtas.”.