Overview of merger control activity during the last 12 months
If merger activity is an indicator of economic performance, any economic recovery being experienced in Ireland is slow and fragile. In 2012, the number of merger filings to the Competition Authority (“Authority”) fell for a second year in a row to a total of 33 filings. By comparison, there were 40 filings in 2011, 46 in 2010, 27 in 2009, 38 in 2008, 72 in 2007 and 98 in the ‘Celtic tiger’ peak of 2006. However, the overall downward trend masks a significant increase in activity towards the end of 2012. While only one filing was submitted to the Authority during January and February 2012, when the Eurozone debt crisis intensified with the downgrade of nine Eurozone sovereign ratings, there was a step-change in the last quarter of 2012 when 14 out of 33 mergers (42%) were notified.
No Phase II investigations were initiated by the Authority during 2012 (or 2011). Even in this context, it is unusual that the merger of greatest note during 2012 was not mandatorily notifiable to the Authority. Eason/Argosy is the first case where Authority intervention led to the withdrawal of a non-notifiable merger that was advanced so far as a signed purchase agreement. A press release by the Authority states that the merger would have reduced the number of wholesalers of new books in Ireland from two to one. It further states that the parties alerted the Authority of their proposed merger post-signing and the parties subsequently withdrew the merger for competition reasons. At the time of the parties’ decision to withdraw in October 2012, the Authority had not published any record of an investigation under its general jurisdiction to review all agreements for competition law compliance, which applies in relation to non-notifiable mergers. However, the Authority’s report indicates that a decision to commence proceedings against the parties had been made prior to the parties’ decision to withdraw. This case demonstrates the need for parties to conduct an early and detailed analysis of non-notifiable transactions that present potential competition issues, and to evaluate the appropriate strategy for interaction with the Authority.
During 2012, no merger approvals were issued by the Minister for Finance under section 7 of the Credit Institutions (Financial Support) Act 2008 (“Credit Institutions Act”). The Act was introduced at the height of the 2008 financial crisis and provides the Minister for Finance with powers to review mergers involving credit institutions where he/she is of the opinion that the proposed merger is necessary to maintain the stability of the financial system in the State, and there would be a serious threat to the stability of that system if that merger or acquisition did not proceed. 2011 saw the first merger control approval by the Minister pursuant to this Act.
Only one determination published by the Authority during 2012 (Millington/Siteserv M/12/002) makes reference to a target company being in financial difficulty, and “failing firm” arguments were not addressed in this case or in any other. In previous years, cases involving firms in difficulty have not led to any new failing firm analysis, but rather have involved the Authority expediting its normal review process from one month to shorter periods including, on one occasion, to ten working days to deal with the timing realities where firms are in liquidation or receivership.
The Authority has the power to extend the one-month statutory timescale for a Phase I investigation by issuing a Requirement for Further Information that ‘stops the clock’. During 2012, this tool was employed by the Authority on two occasions. The longest period between notification and clearance during 2012, resulting from issue of a Requirement for Further Information, was 79 days (United Care/Pharmexx M/12/017). To put this timescale in context, the average duration of a Phase IIinvestigation by the Authority in the period 2003-2011 was 113 days.
New developments in jurisdictional assessment or procedure
Ireland’s merger control regime, as set out in Part 3 of the Act, is mandatory and imposes a prohibition on the merging parties putting a merger into effect prior to Authority clearance.
The Consumer and Competition Bill is expected to be published in the first quarter of 2013. It is expected to introduce significant changes to the procedure and tests applicable to media mergers (see ‘Reform proposals’ below). The Authority has sought changes to some procedural issues also (see ‘Reform proposals’ below).
One area of on-going interest is the issue of implementation of a transaction prior to clearance. The Authority has always been implacably opposed to implementation prior to clearance. However, the way in which the merger regime operates so as not to permit notification prior to conclusion of a binding agreement/announcement of a public bid, and the absence of a discretion to exempt implementation prior to clearance, causes real difficulties for merging parties. The Authority has suggested that the Act be amended to allow early notification of transactions, reducing the number of occasions where this issue arises.
Issues around implementation prior to clearance came under renewed focus in December 2010 when the Authority criticised the implementation of a notified merger, Stena/DFDS (M/10/043). In this case, the merger, which was notified to both the UK’s Office of Fair Trading and the Authority, signed and completed on the same day so that the authorities were considering an implemented merger. While this did not raise concerns under the UK’s voluntary merger control system, where “hold separate” undertakings are relatively commonplace, it did raise Authority concerns.
The Authority issued a stern press release as follows:
“Stena Acquisition of Certain Assets of DFDS A/S Void By implementing the acquisition of certain assets of DFDS A/S before receiving clearance from the Competition Authority, Stena AB (Stena) and DFDS A/S, have infringed section 19(1) of the Competition Act 2002. Consequently, as provided for by section 19(2) of the Act, this acquisition is void.
Dr Stanley Wong, Member of the Competition Authority and Director of the Mergers Division, said: “It is not acceptable for parties to implement a notifiable merger or acquisition prior to obtaining approval from the Competition Authority. Any such merger or acquisition is void.”
The Competition Authority will proceed to assess the notified transaction in accordance with the provisions of the Competition Act 2002.”
The merger was subsequently treated by the Authority as a proposal to put an acquisition into effect and cleared by the Authority following a Phase II Investigation.
However, it is clear that this case is not unique. The main practical difficulty that arises in multijurisdictional transactions involving Ireland is that the merging parties may wish to sign and complete a transaction simultaneously, or may have received all other clearances and may not wish to delay completion solely in order to gain Authority clearance. Merging parties who are considering implementation prior to clearance must consider their strategy carefully.
Unfortunately, there are no clear cut mechanisms to avoid a breach of the implementation prohibition where merging parties wish to implement a transaction prior to clearance. One mechanism often considered is to try and “carve out” the Irish aspects of the proposed transaction so that, although it would be put into effect elsewhere, it would not be put into effect in Ireland until clearance was obtained. However, the Authority does not tend to recognise a “carve-out” of the Irish aspects of the transaction as remedying a breach of the Act. In Aviva/CGU International Insurance plc/Gresham Insurance (M/05/013), while the Authority did not find that a “carve-out” employed by the parties was such as to prevent the entire transaction being void, it did note that the effect of the “carve-out” was to prevent the transaction having any effect in Ireland until Authority clearance was issued. However, the Authority accepted that a “warehousing” structure prevented a breach of the Act in Heineken/Scottish and Newcastle (M/08/11). The structure involved the transfer to an investment bank, pending the Authority’s clearance, of voting rights in a NewCo that would purchase a business as a first step in the transaction, whose aim was to divide a business between the two shareholders in NewCo.
Another mechanism sometimes considered is to provide the Authority with “hold separate” undertakings. There have been a number of cases where the merging parties have informed the Authority that they will “hold separate” until clearance is issued by the Authority, including Stena/DFDS. However, in all of the reviewed cases the Authority has still taken the view that a breach of the Act has occurred. The Authority has not, to date, taken any action against the parties in such circumstances.
In Noonan Services/Federal Security (M/09/014) the purchaser acquired the competing security services business of the target in both Ireland and Northern Ireland. The transaction was completed prior to clearance, subject to a hold separate agreement.
In both the public version of the determination and the press release which was issued on completion of the Authority’s review, the Authority made reference to the fact that the parties had completed prior to clearance and had therefore breached the Act so as to result in the transaction being void. It was apparent from both documents that the Authority was dissatisfied with the parties’ actions, as evidenced by the reference in both documents to its recommendation that the merger control regime be amended to provide for a substantial fine for breach of section 19 of the Act.
The current situation gives the Authority a number of options where there is implementation prior to clearance. In particular, if the Authority were to become aware that merging parties were considering completion, it could seek a court injunction in the Irish High Court.
An Irish court may be minded to grant such an injunction where the Authority is able to demonstrate that its preliminary examination of the merger gives rise to grave SLC concerns, or where the Authority suggests that it may find it necessary to prohibit the merger on SLC grounds or approve it subject to conditions. It is also possible that the Authority could initiate the action solely on the grounds that the parties would breach their statutory obligations.
If the Authority were to be successful in obtaining an injunction in the Irish courts preventing completion taking place, a court order would then be served on the merging parties, or such of their subsidiaries that carry on business in Ireland, requiring them to refrain from completing the proposed transaction prior to receipt of Authority clearance. Non compliance with the terms of the court order could result in a finding of contempt of court against the parties.
A finding of contempt of court could result in personal liability for the directors of the Irish entities (the court in such instance could require the directors of the companies in question to remedy any breach or bring the relevant companies into compliance with the court order).
Another issue that has to be taken into account is the risk to the merging parties where the merger is ultimately blocked. Section 26(4) of the Act provides that where the parties to a merger contravene a determination of the Authority prohibiting a merger, the parties will be guilty of an offence, punishable by fines of up to €10,000, or to imprisonment for a term not exceeding two years. Section 26(4) also provides for additional daily default fines for each day of continued contravention.
While there is a lack of clarity on the correct statutory interpretation of section 26(4), because it relates to the commission of a criminal offence, it must be read restrictively, so that the Authority’s determination must first be in place before any contravention can occur. There has been no judicial interpretation of section 26(4) or precedent as regards this matter. The Act provides only that the determination shall state that the merger may not be put into effect.
As part of a general consultation on reform of the Act initiated in late 2007 (see further below), the Department of Enterprise, Trade and Employment, now the Department of Jobs, Enterprise and Innovation (“Department”), which is responsible for competition legislation, has been asked to consider proposals to alleviate the problems surrounding this issue. Proposals include: (i) allowing notification of transactions prior to the conclusion of a binding agreement, as is the case under the EU Merger Regulation, where there is a good faith intention to merge; and (ii) granting an exemption from the obligation not to complete a merger where there are good reasons for allowing implementation.
In its submissions to the Department on amendments to the Act, the Authority sought an ability to allow early notification of transactions, and the insertion of a civil penalty in the form of a “substantial fine”, for implementation of a merger prior to clearance. It is to be hoped that a more flexible approach to this problem might be considered by the relevant Minister, so as to include, for example, a discretion to allow implementation in certain circumstances, and/or to avoid the imposition of penalties in appropriate cases.
In terms of new developments in jurisdictional assessment during 2012, the only case of note is (Manwin/RK Netmedia M/12/014) where the published determination notes that the Authority rejected the parties’ submission that the merger was non-notifiable on the basis that one of the undertakings involved did not carry on a ‘media business’ within the terms of the jurisdictional test for media mergers under the Act (see ‘Reform proposals’ below). Specifically, the Authority held that the target company which compiled adult entertainment content mainly for internet transmission was ‘providing a broadcasting service’ for the purposes of section 11(a) of the Act.
Key industry sectors reviewed and approach adopted to market definition, barriers to entry, nature of international competition etc.
Industry sectors most likely to be subject to merger control review by the Authority are mergers involving financial services. This reflects the facts that the Irish merger control system is mandatory, and the only relevant factor is the turnover of the undertakings involved and not substantive overlap, such that the high proportion of such mergers is more a factor of the number of financial institutions carrying on business in Ireland and their high turnover, rather than the approach of the Authority to market definition or to any other substantive concern. Within this industry sector, private equity buyers featured strongly in 2012 with nine out of the 33 mergers notified (30%) involving such entities.
It is expected that media mergers will continue to feature prominently, due to the misapplication of turnover thresholds for all media mergers, although only two media mergers were notified in 2012, and both were cleared following a Phase I review by the Authority (without conditions), i.e. with no competition issues or plurality concerns following review by the Minister for Jobs, Enterprise and Innovation. There remains some level of frustration that so many media mergers continue to be caught by the Act, imposing an unnecessary regulatory burden on such businesses. However, there is no indication of a desire to modify the scope of the current media merger system so as to enable such mergers to escape merger control review (see ‘Reform proposals’ below).
Other industry sectors which featured prominently in 2010, 2011 and 2012 include the pharmaceutical sector and the food and drink sector. The latter sector was the subject of six merger control determinations during 2012 and has also produced the only merger control determination which has been the subject of an appeal to date – in August 2008, the Authority prohibited the proposed acquisition by Kerry Group plc of the consumer foods division of the former Dairygold Co operative (Breeo Foods Limited and Breeo Brands Limited M/08/009). The Authority’s prohibition decision was overturned on appeal by Kerry Group to the High Court, based in part on the Court’s critique of the Authority’s approach to market definition which had focused on very narrow segments within certain food sectors such as natural and processed cheese. During 2010, the Authority made an application for a priority hearing of its appeal, in turn, to the Supreme Court. However, this application was not granted. There was a ‘case management’ hearing on 13 July 2012, where counsel for Kerry Group submitted that the appeal was ‘moot’ because the merger had already been implemented by the parties on foot of the High Court appeal decision, an argument which was refuted strongly by counsel for the Competition Authority on the basis that the decision was a matter of significant public interest. As of the time of writing, the Supreme Court case is still awaiting a hearing date. Based on the information available at the time of writing, approximately 23 of the 33 filings submitted to the Authority involved a target business that had a substantial base in Ireland. Once again, this reflects the mandatory turnover thresholds that apply in Ireland.
In terms of the approach to market definition, during 2012 the Authority continued its established practice of exercising restraint and not reaching firm conclusions on market definition where possible. This practice was confirmed by the following extract from a Powerpoint presentation by Ibrahim Bah, then Head of the Mergers Division of the Authority at the IBA Conference in October 2012: “Plausible to find ‘no SLC’ without defining markets… Finding ‘SLC’ probably requires identifying markets where harm is likely”. In any event, the Authority did go through the process of identifying potential market definitions in each and every 2012 decision. The Authority took a firm position on market definition in one of the eight cases notified during 2012 that involved horizontal overlaps.
During 2012, we have perceived certain changes in the Authority’s approach to case analysis, which may reflect the new leadership from Professor Stephen Calkins, who has been Director of the Mergers Division of the Authority since December 2011. It appears that there has been closer analysis of cases involving no overlaps or minimal overlaps. This is reflected in greater use of informal information requests. For example, the determination in Pallas/Crossgar M/12/010 states that “the Authority requested and received, on an on-going basis, further information and clarifications”, and the horizontal overlap in this case was described in the notification as ‘de minimis’ and occurred in a market that the Authority described as ‘fragmented’. Similarly, consideration was given to arguments relating to ‘loss of a potential competitor’ in cases involving no overlap (see Southbank Media/Travel Channel M/12/004). Yet another indicator of this trend is the fact that a Requirement for Further Information was issued in a case involving no overlap and, in that case, the impact was an extension of the review period from one month to over two months.
Key economic appraisal techniques applied, and the assessment of vertical and conglomerate mergers
The Authority’s Guidelines for Merger Analysis have been in place since December 2002. The Authority initiated a public consultation in December 2010 with a view to reviewing and updating these Guidelines. No revised Guidelines have yet been issued but these are expected later this year following publication of the Bill and coming into operation of that legislation.
The Authority is very influenced by the work of the International Competition Network (the “ICN”) of which it is an active member, and also of the EU, UK and USA competition authorities. The Authority appears minded to follow the new US DOJ and FTC approach, as set out in their 2010 Horizontal Guidelines, to reduce the importance currently afforded to the SSNIP test and market definition, describing it as “not always necessary and a pre-requisite to the conduct of a competitive effect analysis”. The Authority has consistently reviewed mergers by emphasising unilateral and coordinated effects as the main theories of harm, and this position is not likely to change in any new guidelines. However, we might expect a more complete discussion of efficiencies, including consideration of the extent and probability of cost efficiencies, and evidence of such efficiencies and the likely distribution of efficiency gains among consumers, staff and shareholders.
In terms of specific appraisal techniques used during 2012, the Authority typically used the Herfindahl-Hirschman index (HHI) as a step in cases involving overlaps. The issue of written questionnaires to the top five customers of the merging parties is another technique, which was used in Airtricity/Phoenix M/12/006 and United Care/Pharmexx M/12/017. In the former case, the questionnaire was issued only to customers in the area of overlap where the parties’ combined share was greatest, at c.11%, and the feedback was used to support the Authority’s conclusion that the merger raised no significant competition issues. In United Care/Pharmexx, the Authority placed even more significant weight on the detailed views expressed by customers in response to their questionnaire in deciding to clear a four-to-three merger in a “highly concentrated” market, on the basis that the remaining two competitors of the merged entity “will be credible competitive constraints”.
Approach to remedies (i) to avoid second stage investigation and (ii) following second stage investigation
The Authority is willing to consider remedies in each of Phase I and Phase II. Where remedies are voluntarily suggested by the merging parties in Phase I, this increases the period for the Authority review from a one-month period to 45 days. While the Authority states that it prefers for remedies to be set out as early as possible in the process, there is some frustration among practitioners that the Authority’s internal processes are not well suited to an early engagement on such matters. This can lead to mergers moving to Phase II even where there is an appropriate remedy offered early in Phase I (as the Authority does not allow itself sufficient time to consider the issues).
The Authority’s preference when considering mergers is where possible to identify an available structural remedy and then to consider behavioural remedies. In practice, structural remedies are rare. Where behavioural remedies are adopted, the Authority prefers those which require the least possible oversight role by the Authority itself in demonstrating compliance. In the last Phase II merger involving remedies, Metro/Herald (M/09/013), the Authority imposed a requirement that an annual report be submitted by the independent Chairperson reporting on compliance. This mechanism has worked satisfactorily to date.
The Authority has not to date published any guidelines in relation to remedies. However, its approach to the small number of cases in which structural remedies have been imposed to date (for example, Premier Foods/RHM (M/06/098) and Communicorp/Emap (M/07/040)) has increasingly relied on both EU and UK guidance, and has required the appointment of an independent trustee with a mandate to oversee and, if necessary, enforce the divestiture process.
As part of its commentary on the proposed reform of the Act by the Department, the Authority has proposed that the time period for Phase II be extended from three months to four in all cases (see ‘Reform proposals’ below) and by a further period of 15 days in event that remedies are considered during Phase II.
Key policy developments
There are no new policy developments in Irish merger control as such. The Competition (Amendment) Act 2012 introduced certain changes to strengthen competition law enforcement powers and sanctions, but did not impact on merger control rules or policy.
The new disciplines imposed on the State as a result of the EU/IMF Memorandum of Understanding in November 2010 and change of Government in March 2011 seem to have introduced a possible new commitment to, and focus on, the role of competition and the need for a new, strong, merger control regime. One significant step taken during 2012 was the recruitment of one new case officer by the Authority, with up to seven new case officers potentially being recruited in 2013, which could lead to a re-energised Authority. However, there has recently been a significant management change at the Mergers Division with the departure of experienced division manager, Ibrahim Bah, towards the end of 2012.
The Government is due to amend the Act to facilitate the merging of the Authority and the National Consumer Agency. The Consumer and Competition Bill was due for publication in the last quarter of 2012, but was delayed and is now due to be released during the first quarter of 2013. However, this change is unlikely to cause any change to merger control policy as it is not envisaged that there be any change to the SLC test, which is a consumer welfare test.
There are a number of proposals for reform which could impact on Irish merger control rules.
Changes to the Act during the first quarter of 2013 are expected to include changes to the media merger control regime to take account of recommendations contained in the 2008 Report of the Advisory Group on Media Mergers (“Report”).
However, while the Report recommends that the Act be amended to provide for a separate system of notification of media mergers to the Minister for Jobs, Enterprise and Innovation for clearance, we understand that it is likely that the Minister for Communication will take the role of the Minister for Jobs, Enterprise and Innovation. While the Authority would continue to review the competition aspects of media mergers under the SLC test, media mergers would require an additional notification to the Minister for Communications (on a specific notification form and attracting a separate fee) who would apply a statutory test (discussed below) to ensure that the merger is not contrary to the public interest.
The Report proposes that media mergers which fall within the jurisdiction of the EU Merger Regulation should also be notified to the Minister of Communications for approval. This would appear to provide for a specific mechanism (not currently provided for under the Act) for the application in Ireland of Article 21(4) of the EU Merger Regulation, which allows Member States to take “appropriate measures” to protect legitimate interests, including media plurality.
The Report defines a proposed new statutory test to be applied by the relevant Minister in a review of media mergers, i.e.: “whether the result of the media merger is likely to be contrary to the public interest in protecting plurality in media business in the State”. Plurality of the media is defined in the Report as including “both diversity of ownership and diversity of content”.
The Advisory Group also recommends the adoption of a revised set of “relevant criteria” to be considered in applying the above test, including the likely effect of the media merger on plurality; the undesirability of allowing any one individual/undertaking to hold significant interests within a single sector or across different sectors of media business in the State; the consequences for the promotion of media plurality of the Minister intervening to prevent the merger; and the adequacy of other mechanisms to protect the public interest.
The Report recommends that these criteria should be supplemented by more detailed statutory guidelines to be issued by the relevant Minister. Such guidelines are intended to assist the undertakings involved in knowing how the Minister will apply the “relevant criteria”. It is proposed that the guidelines would contain indicative guidance on levels of media ownership and in particular, crossmedia ownership that would generally be regarded as unacceptable. They would also provide for concrete indicators of diversity and plurality which might operate as a “sort of checklist” which the parties to a media merger would be invited to address in their notification. Examples given include demographic audience information and market share data, shareholder information, compliance by the parties with industry codes of good practice, and whether the parties have a “record of truthful, accurate and fair reporting”.
Should the Government implement the proposals contained in the Report and reflect comments by the Minister for Communications, parties will require a separate approval from the Minister for Communications prior to implementation of a media merger. The Report suggests a two-phase system for review, in which Phase I would last until 30 days after the date of notification to the Minister or the decision of the Authority / European Commission / Broadcasting Authority of Ireland (to which TV and radio mergers must also be notified), whichever is the later (i.e. effectively a two-month period for mergers notified to the Authority).
At the end of this period, the Minister may decide to: (i) approve the media merger on the basis that it does not contravene the public interest test; (ii) approve the media merger with conditions; or (iii) proceed to a Phase II examination.
It is proposed that Phase II should last no more than four months from the date of the Phase I decision. In addition, at any stage in the process (Phase I or II), the Minister would be entitled to look for further information and extend time limits by the time required to respond.
In the event of a Phase II review, the Report calls for the establishment of a five-person Consultative Panel comprised of experts in law, journalism, media, business or economics, to advise the Minister on the application of “relevant criteria” (and to replace the existing role of the Authority in this regard).
At the end of Phase II, unless concluded in the intervening period by a Ministerial decision, the Minister shall decide whether to approve, approve with conditions or block a media merger.
The Report also recommends the on-going collection and periodic publication by the Government of information in relation to media plurality in the State.
The long-awaited legislative proposal based on the recommendations of the Report is scheduled to be published in the first quarter of 2013.
Other proposed reforms
In its response to the Department of Jobs, Enterprise and Innovation’s public consultation on a general reform package for the Act, the Authority requested that a number of changes be made to the Act, including changes to the merger control provisions in Part 3.
The more important changes suggested by the Authority include:
Proposal to allow notification in advance of conclusion of a binding agreement (as is currently the case), allowing notification based on a “letter of intent”, for example. In making this proposal, the Authority made reference to the European Commission’s requirement for there to be “a good faith intention to conclude an agreement”.
Proposals to introduce “more appropriate sanctions”. At the moment the sanctions for breaching various elements of Part 3 of the Act, including knowing and wilful failure to notify a notifiable transaction within the statutory one-month period and breach of a provision of a binding commitment or a conditional clearance determination, are criminal offences under the Act. It is, in the Authority’s view, more appropriate that the sanctions for these infringements are civil. The Authority is also seeking civil sanctions for implementation of a transaction prior to clearance for the first time.
Proposal to include partial investments At the moment the Act refers to mergers that involve a change in decisive control. The Authority has noted a suggestion in the literature and case law that there is a case for analysis of partial investments – i.e. those that fall short of decisive control. The Authority makes some tentative proposals for discussion on this issue, although it makes no definitive recommendations.
Proposals to extend time limits for review. The Authority has two major suggestions: (i) to extend a Phase II review from three to four months; and (ii) to enable it to “stop the clock” during Phase II following a requirement for further information.
Proposal to review the media merger provisions. The main suggestion (consistent with recommendations of the 2008 Report) is to remove the Authority from having to opine on “public interest criteria” in media mergers, as it “is not within its area of competence”. The Authority also notes that even with recent revisions to the Media Order, media mergers with little nexus to the State are still captured under the Act, and it is thus proposed to introduce revisions to resolve this issue.
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