The Merger Control Review: Ireland

Author:Ms Helen Kelly and Darach Connolly
Profession:Matheson
 
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I INTRODUCTION

The Competition Act 2002–2012 (Competition Act) governs Ireland's merger control regime. The Competition Authority has primary responsibility for most mergers notifiable under the Competition Act (i.e., where the EU Merger Regulation2 does not apply). The applicable merger control test used by the Competition Authority is whether the merger is likely to substantially lessen competition for goods or services in the state.

Currently, both the Competition Authority and the Minister for Jobs, Enterprise and Innovation (Minister for Jobs) have a role as regards 'media mergers'. However, the Competition and Consumer Protection Bill (Bill) published on 27 March 2014, if enacted in its current form, will alter the treatment of mergers in a significant way. The Bill provides for the merger of the existing Competition Authority and National Consumer Agency to create a new Competition and Consumer Protection Commission (CCPC), amended merger notification thresholds, extended timelines for merger review and a fundamental restructuring of the media merger regime, and will involve the transfer of responsibility for media mergers away from the Minister for Jobs to the Minister for Communications, Energy and Natural Resources (Minister for Communications) (discussed further below).

Notification under the Irish system of merger control is mandatory where the jurisdictional thresholds are met, and a filing must be made by each of the undertakings involved in the transaction within one month of conclusion of the merger agreement or the making of a public bid. Failure to notify a notifiable transaction within the one-month period can constitute a criminal offence. Implementation of a transaction prior to clearance is prohibited but does not amount to a criminal offence, albeit that it would amount to a criminal offence to put a merger into effect in defiance of a Phase II prohibition or in breach of conditions attaching to a clearance.

Under Section 16(1) of the Competition Act, a merger or acquisition is deemed to occur if:

two or more undertakings, previously independent of one another, merge; one or more individuals or other undertakings who or that control one or more undertakings acquire direct or indirect control of the whole or part of one or more other undertakings; the result of an acquisition by one undertaking (first undertaking) of the assets (including goodwill), or a substantial part of the assets, of another undertaking (second...

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