In July 2019, the Competition and Consumer Protection Commission (the "CCPC") concluded two Phase 2 reviews, issuing clearances subject to remedies in both cases. This article considers what parties to potential Phase 2 Irish merger control cases should expect in future, based on these cases.
Irish Phase 2 Determinations Are Taking Longer
In Phase 2 cases the CCPC must make a final determination within a review period of 120 working days (or 135 working days where the parties offer remedies in Phase 1) from notification. It can take much longer to obtain a final determination, however, as the 'clock stops' / time is not counted when the CCPC issues statutory requests for information (RFI).
The recent Phase 2 determinations were the most longest-awaited CCPC determinations ever, by some measure, being made:
Approximately 226 working days following notification in the case of LN-Gaiety Holdings Limited's acquisition of MCD Productions Unlimited Company (the "MCD Merger"); and Approximately 232 working days following notification in the case of Berendsen's acquisition of Kings Laundry (the "Kings Laundry Merger"). It is not obvious that the longer timelines in the above mergers, as compared to the previous two Phase 2 cases (Enva/Rilta & Trinity Mirror/Northern & Shell), can be fully explained by the above mergers raising significantly more complex competition issues. After all, both of the above mergers were ultimately cleared without traditional structural remedies being required (noting that one of the remedies in the Kings Laundry Merger was a quasi-structural remedy to sell contracts (but no assets)).
Behavioural Remedies Are Still In Fashion at the CCPC
As Matheson has discussed in previous articles, including an article on the MCD Merger, the CCPC uses behavioural commitments far more often than other European competition authorities. Behavioural-type remedies were obtained in both the MCD Merger and the Kings Laundry Merger.
The commitments offered in the MCD Merger were...