Background - Current Irish Regime
Media mergers in Ireland are subject to the normal clearance provisions under the Irish Competition Acts 2002 to 2010 save that all media mergers must be formally notified to the Competition Authority, regardless of turnover thresholds.
This means that all media mergers that meet the territoriality tests set out under Irish law must be notified and approved in Ireland. Failure to notify has significant consequences including invalidity of the underlying transaction and potentially significant fines (both at an individual and a corporate level).
Irish law defines a media merger as a merger or acquisition in which one or more of the undertakings involved carries on a media business (being the businesses of (i) publication of newspapers or periodicals consisting substantially of news and comment on current affairs, (ii) providing a providing a broadcasting service, or (iii) providing a broadcasting services platform).
In addition to scrutiny by the Competition Authority, Media mergers are considered by the Minister for Enterprise, Trade & Innovation (the "Minister") who must have regard to the following criteria (the "relevant criteria") in determining whether or not to allow a merger to proceed:
the strength and competitiveness of media businesses indigenous to the State, the extent to which ownership or control of media businesses in the State is spread amongst individuals and other undertakings, the extent to which ownership and control of particular types of media business in the State is spread amongst individuals and other undertakings, the extent to which the diversity of views prevalent in Irish society is reflected through the activities of the various media businesses in the State, and the share in the market in the State of one or more of the types of business activity falling within the definition of "media business" in this subsection that is held by any of the undertakings involved in the media merger concerned, or by any individual or other undertaking who or which has an interest in such an undertaking. Advisory Group Report
In 2008, the Minister commissioned a report from a high level advisory group comprising experienced senior counsel and various industry figures (the "2008 Report"). The 2008 Report's findings were as follows:
There should be a statutory definition of media plurality (referring both to ownership and content); The Competition Acts should be amended to incorporate a statutory test to be applied by the Minister in the discharge of his or her function in relation to media mergers; The current definition of the 'relevant criteria' in Section 23(10) of the Competition Act should be replaced; There should be an on-going collection and periodic...