Recent Developments In Merger Control And Antitrust Enforcement

Author:Ms Helen Kelly and Kate McKenna

Ireland is one of the best countries in the world for ease of doing business, according to Forbes. The Irish regulatory environment is business focused and pragmatic. Companies deal with smaller regulatory teams, giving them and their advisers greater access to senior personnel. Competition is no exception. Matheson is the law firm of choice for internationally-focused companies and financial institutions doing business in and from Ireland. We are currently advising a number of UK companies, including those in the banking, insurance, media, pharma, tech and telecoms industries, that are looking to make a move to Ireland or expand their operations here.

Merger control

Merger activity in Ireland has rebounded in recent years and 2018 is continuing this trend, notwithstanding the uncertainty around Brexit. The Competition and Consumer Protection Commission (CCPC) is the Irish agency responsible for reviewing mergers where each of the acquirer and target's turnover in Ireland exceeds €3m and the parties together have turnover of €50m or more. That low bar makes for a high volume of 'no issue' mandatory notifications both for domestic and international transactions. One of the challenges for the CCPC is to clear these quickly and efficiently and, while it has up to six weeks to do so, we would expect to receive clearance for no issue cases well in advance of that deadline, in line with the practice of other European jurisdictions. In 2017, of the 72 notifications made to the CCPC, 68 were cleared unconditionally and the average time for a no issue phase one investigation was 24 working days, with the shortest clearance achieved in 12 working days. With merger control thresholds expected to be revised upwards in 2018 (to €10m for each of the acquirer and target and €60m for the two businesses together) the overall number of mergers requiring mandatory notification is expected to taper.

Where potential competition concerns are identified, the CCPC can extend its initial phase one investigation by requesting additional information. In 2017, nine notifications involved extended phase one investigations, with an average overall investigation time of around 70 working days. Four of those notifications resulted in some form of phase one commitment, including behavioural and quasi-structural. For example, in Applegreen/JFT, the buyer was required to commit to using a part of its share of the Joint Fuel Terminal at Dublin Port to support third parties...

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