New merger rules come into force in Ireland today, Friday, 31 October 2014, under the Competition and Consumer Protection Act (“2014 Act”). In this short note we highlight three very important changes to Ireland’s media merger regime. Our briefing on the 2014 Act and the new merger thresholds applicable to all other mergers is available here.
EUMR transactions involving ‘media mergers’ require notification in Ireland
For the first time, where an undertaking carries on a ‘media business’ in Ireland and acquires a ‘media business’ elsewhere and that merger is notified to the Commission under the EU Merger Regulation it must also be notified to the Irish Minister for Communications (“Minister”). A notification can only be made to the Minister after the Form CO is submitted and before the transaction is put into effect. Once notified, the Minister must carry out a review of the transaction taking account of media plurality issues.
What is a media business? A small drafting change, a giant leap online!
The existing rules captured traditional media businesses such as newspapers, periodicals and broadcasters such as television and radio. The rules are now extended to include businesses that make available “on an electronic communications network any written, audio-visual or photographic material, consisting substantially of news and comment on current affairs that is under the editorial control of the undertaking making available such material”.
Key aspects of the new definition are not yet clear and a number of fine distinctions are relevant. While the Minister may introduce guidelines on the application of the new rules, in the short term a case-by-case analysis is needed to understand whether a notification obligation arises.
Timing – adverse impact on deal scheduling
In the absence of guidelines from the Minister suggesting new procedural rules, a Phase I review of a ‘media merger’ by the Minister is expected to take up to 65 working days with the Minister awaiting a final decision from the Commission prior to issuing his decision on the outcome of his media plurality review. Such delay may give rise to major timing implications for transactions. In practice, we hope that straightforward media mergers would benefit from an expedited review period.