The Competition and Consumer Protection Bill 2014 (Bill) was published by the Minister for Jobs, Enterprise and Innovation on 31 March 2014. The Bill proposes a number of changes to the application and enforcement of competition law and consumer protection law in Ireland. As well as creating a combined competition and consumer body called the Competition and Consumer Protection Commission (CCPC)) out of the Irish Competition Authority and the National Consumer Agency, the Bill makes a number of changes to the Irish merger control regime under the Competition Acts 2002-2012. The Bill may be enacted as soon as July 2014.
Qualifying mergers under Irish merger control
The main change made by the Bill regarding qualifying mergers is to asset acquisitions. An asset acquisition is now the acquisition of part of an undertaking (though not a corporate legal entity) involving the acquisition of assets that constitute a business to which a turnover can be attributed (and assets includes goodwill). Full function joint ventures (i.e. autonomous economic entities) must now be created "on a lasting basis" rather than on an "indefinite basis" to qualify for Irish merger control review.
New merger notification thresholds
Under the Bill a qualifying merger must be notified to the CCPC where, in the most recent financial year:
- the aggregate turnover in Ireland of the undertakings involved is at least €50 million; and
- the turnover in Ireland of each of 2 or more of the undertakings involved is at least €3 million.
There is no longer any worldwide turnover test under the new thresholds.
When a merger notification can be submitted to the CCPC
While a merger that meets the compulsory notification thresholds must be notified before it is put into effect (and there remains the facility to make a precautionary voluntary notification for others), it may be made after:
- the undertakings involved demonstrate to the CCPC a good faith intention to conclude an agreement to merge or where a merger is agreed;
- one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted; or
- in relation to a scheme of arrangement, a scheme document is posted to shareholders.
Extended time period for assessment of a notified merger
The Bill effectively extends the time periods for the CCPC to assess a notified transaction. Essentially, the Phase 1 period of merger assessment by the CCPC is 30 working days (this can be extended) and the total period for assessment in Phases 1 and 2 can be 120 working days (this can also be extended).
The Bill also makes changes to the way media mergers are assessed including a number of steps that will involve the Minister for Communications, Energy and Natural Resources having the final say on media mergers notified to him (including media mergers notified to the European Commission under the EU merger control regime). While media mergers must still be notified to the CCPC and the turnover thresholds above do not apply (other than showing a sufficient media business nexus to Ireland held by at least one of the undertakings involved in the merger), the CCPC can now only assess whether the notified media merger would restrict competition in Ireland will no longer have any involvement in assessing media plurality issues.