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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