The Competition and Consumer Protection Act 2014 (Act) has now been signed into law although the Act will not come into force until later this year and so the current rules continue to apply.
The Act dissolves the Competition Authority and National Consumer Agency to create the Competition and Consumer Protection Commission (CCPC) and makes a number of changes to the Irish merger control, competition enforcement and consumer protection regimes as follows:
New compulsory Irish merger control thresholds and notification procedure
The new compulsory merger control thresholds for notifying a qualifying merger to the CPCC are that, in their most recent financial year:
- the aggregate turnover in Ireland of the merging parties is at least €50 million; and
- the turnover in Ireland of each of 2 or more of the merging parties is at least €3 million.
- A merger that meets these compulsory notification thresholds must still be notified to the CCPC before it is put into effect but it can be notified to the CCPC with evidence of a good faith intention to merge and this more closely reflects the position under the EU Merger Regulation.
- Other changes are made by the Act including a change to the type of asset acquisitions that are notifiable to the CCPC, to notifiable full-function JVs and a restriction on the warehousing exemption.
The time periods to review a notified merger under Irish merger control
The time periods for the CCPC to review a notified merger are increased. The CCPC has up to 30 working days in Phase 1 (extendable) to review the notified merger and up to 120 working days (extendable) in Phases 1 and 2 combined to decide whether to clear, clear on conditions or prohibit a notified merger. Phase 2 can be suspended by the CCPC where it makes a formal request to the notifying parties for further information.
The new Irish media mergers regime
- The Act introduces a new media mergers regime in Ireland. A media merger must be notified to the Minister for Communications, Energy and Natural Resources (Minister) as well as to the EU Commission (Commission) (if the thresholds under the EU Merger Regulation apply) or to the CCPC (irrespective of the Irish merger control turnover thresholds above).
- The Minister has up to 30 working days in Phase 1 to review the media merger (extendable) and a Phase 2 can last up to 100 working days (also extendable) before the Minister must decide. The Minister reviews the effect of the media merger on media plurality in Ireland (e.g. diversity of ownership and diversity of content) and can clear, clear on conditions or prohibit a media merger.
- The Act introduces a specific threshold for media mergers because at least one of the merging media business must carry on "a media business in Ireland" which is where it: (i) has a physical presence in Ireland and makes sales to customers in Ireland; or (ii) made sales to customers in Ireland of at least €2 million in the most recent financial year.
Competition law enforcement in Ireland
The main changes to competition law enforcement in Ireland are: (i) the CCPC can take possession of materials even where they may be legally privileged, but there are procedures to ensure that such materials are not compromised to allow for the High Court to ultimately decide whether such materials are legally privileged; (ii) a detained person can be released and their detention suspended for further investigations during the suspension period; (iii) the Garda Síochána can apply to Court to require documents, questions answered and information; (iv) an increase in CCPC powers to investigate (e.g. in dawn raids) and enforce competition law breaches; (v) CCPC can order disclosure of data required to be retained by telcos and Internet companies for up to 2 years; (vi) the Garda Síochána can obtain an Order requiring production of information to investigate cartels; and (vii) withholding cartel information is an offence.
Consumer law and grocery goods contractual relationships in Ireland
- The Minister for Jobs, Enterprise and Innovation can make Regulations to control grocery goods commercial relationships (primarily supply arrangements between larger and smaller grocery goods undertakings) including: (i) the form of contract; (ii) contractual variation, termination or renewal; (iii) the conditions under which retailers may require suppliers to obtain any goods, services or property from a third party where the retailer obtains payment for it; (iv) charging for listing grocery goods; and (v) when a larger grocery goods undertaking seeks payment from a supplier for better positioning of goods.
- The CCPC can issue enforceable "Contravention Notices" against larger grocery goods undertakings for breach of the Regulations and can dawn raid undertakings for suspected breaches.
Overall, the Act will make a number of important changes to the Irish merger control, competition enforcement and consumer protection landscape once it enters into force later this year.