The A&L Goodbody EU, Competition and Procurement Law Group  is widely recognised as a leader in its field in Ireland and it has been  ranked among the top competition law practices worldwide by Global  Competition Review. Our Group has very significant Irish merger control  experience and consistently advises on approximately one third of all Irish  merger notifications including experience of a number of complex and  high profile Phase II cases.

This guide sets out the key features of Irish merger control.

To which agency must merger notifications be made?

From 31 October 2014, all merger notifications will be made to the  Competition and Consumer Protection Commission (CCPC). The  Competition and Consumer Protection Act 2014 (the 2014 Act) will result  in the dissolution of the Irish Competition Authority and the National  Consumer Agency. With effect from 31 October 2014, the functions of  these bodies will be assumed by a new agency known as the CCPC.

What types of merger are notifiable?

Under the 2014 Act, mergers, acquisitions (of shares and/or assets that  constitute a business to which a turnover can be attributed, including  goodwill) and full-function joint ventures created on a “lasting basis” will be  notifiable to the CCPC. The acquisition of “control” is a requirement for a  notifiable merger under the Act (‘control’ is generally seen as the ability to  exercise decisive influence).

What are the conditions for the compulsory notification of  a merger to the CCPC?

The conditions for the compulsory notification of a merger to the CCPC  are that, in their most recent financial year:

the aggregate turnover in the State of the undertakings involved is not  less than €50m; and

the turnover in the State of each of 2 or more of the undertakings  involved is not less than €3m.

When/who must notify and what are the consequences of  failing to notify/premature closing?

Under the 2014 Act, a merger notification must be made to, and cleared  by, the CCPC by each undertaking involved before a merger is put into  effect. Failure to make a compulsory notification is an offence which will  result in liability being imposed on the undertaking concerned or on  the person in control of the undertaking who knowingly and wilfully  authorised or permitted the breach. The 2014 Act permits notification  to take place before the agreement is signed, e.g. where the undertakings  involved demonstrate a good faith intention to conclude an agreement or  where an intention to make a public bid has been publicly announced by  one of the undertakings involved.

What is the timing for the assessment of notified mergers  under the 2014 Act?

Phase 1 lasts up to 30 working days (including the date of notification) but  can be extended to 45 days if the notifying parties offer commitments.  Phase 2 can take an additional 120 days, with the possibility of an extension  to 135 working days where commitments are offered by the notifying  parties. A standstill period is also available where further information is  requested by the CCPC – time will recommence once the information  sought has been furnished.

What decisions does the CCPC make on a notified merger  and what test does it apply?

In Phase 1, the CCPC must clear a notified merger or refer it to Phase 2.  In Phase 2, the CCPC must clear (with or without conditions) or prohibit  a merger. The test applied by the CCPC is whether the merger would  substantially lessen competition (SLC) in any market in Ireland.

When should a voluntary notification of a merger be  considered if there is no obligation to notify?

A voluntary notification to the CCPC may be advisable if a merger would  be likely to SLC in Ireland.

Are there any exceptions for credit institutions?

Certain limited exceptions from the merger control regime are provided  for under the Credit Institutions (Stabilisation) Act 2010, the Central Bank  and Credit Institutions (Resolution) Act 2011 and the Irish Bank Resolution  Corporation Act 2013.

When must a media merger be notified?

All media mergers must be notified to the CCPC, regardless of whether  they meet the monetary thresholds applied to non-media mergers. The  2014 Act defines a media merger as occurring where each of at least 2 of  the undertakings involved carries on a media business in Ireland or where  1 carries on a media business in Ireland and 1 carries on a media business  elsewhere. The definition of a “media business” has been broadened  to encompass online media, such as the publication of newspapers or  periodicals consisting substantially of news and comment on current affairs  on the internet.

What is the procedure for the assessment of media  mergers under the Act?

Notifications of media mergers must be made to the CCPC (or, in certain  circumstances, to the European Commission under the EU Merger  Regulation). The CCPC will assess the media merger to determine if it  would be likely to SLC. As with non-media mergers, it may apply both a  Phase 1 and a Phase 2 assessment.

Under the 2014 Act, a notification must also be made to the Minister for  Communications, Energy and Natural Resources (CENR), who will apply a  media plurality test to the merger. If the Minister believes that the merger  may be contrary to the public interest in protecting the plurality of the  media, it may refer the matter to the Broadcasting Authority of Ireland  (BAI) for a Phase 2 assessment. The BAI must draft a report within 80  working days giving its view as to whether the merger will be contrary to  the public interest in protecting media plurality. In doing so, it must invite  submissions from the Joint Oireachtas Committee and may be assisted by  an Advisory Panel appointed by the Minister. The Minister has 20 working  days after receipt of the report within which to make a determination to  prohibit or to approve the merger (with or without conditions).

Summary Flowchart: Conditions for an Irish Merger Control Notification to the CCPC

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Summary Flowchart: Timelines for an Irish Merger Control Notification to the CCPC (not a media merger)

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Summary Flowchart: Timelines for a Media Merger Notification

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