EU Regulation 2024/1083, the European Media Freedom Act ("EMFA") was enacted in May 2024 and is to be incorporated into Irish primary legislation. This should happen before 8 August 2025, when most of EMFA becomes effective as a matter of EU law.
This article focuses on the positive potential of EMFA to make doing business in Ireland easier, by putting an end to technical Irish media merger filings for 'foreign-to-foreign media mergers' and 'non-media JVs'. We also consider the potential of EMFA to impose new filing requirements on acquisitions of social media platforms.
The Current Law
The Irish media merger regime is intended to ensure that media plurality in Ireland is maintained through ministerial oversight of mergers.
The Competition and Consumer Protection Act 2014 provides for the regime. A transaction must be notified to, and cannot be completed pending approval by the Irish Minister for Media (the "Minister") if 'two or more undertakings involved carry on a media business' and one does so in Ireland (the other party can have a 'media business' anywhere in the world). The threshold which determines whether a 'media business' is carried on in Ireland is very low, and specifically can be satisfied by either (i) any physical presence or (ii) annual turnover of €2m.
The regime catches two types of transaction which have no obvious potential to raise media plurality concerns. Firstly, 'foreign-to-foreign media mergers', including, for example, where a German newspaper is acquired by a foreign undertaking which separately manages an Irish newspaper. Secondly, 'non-media JVs', including, for example, where two media companies establish a full-function joint venture not involved in media content.
Phase 1 reviews under the regime are done by the Minister. Phase 2 reviews are done with input from the Media Regulator, Coimisiún na Meán. These reviews are always preceded by a merger control review by the competition regulator, either the Competition and Consumer Protection Commission or the European Commission DG Comp. To date, there has only been one Phase 2 case, on which Matheson advised, and no transaction has been prohibited by the Minister.
Expected Changes in Law
Article 22 EMFA requires Member States to have a national regime for assessment of concentrations which could have a "significant impact on media pluralism and editorial independence".
The category of media mergers identified by EMFA as being within the above regime is very different to that under current Irish law:
- EMFA covers a wider
group of media businesses than current Irish law, in
the following respects in particular:
- Platforms (social media) which provide access to media content are in scope; and
- Entertainment content, as well as news and current affairs content, is in scope.
- EMFA covers a narrower group of mergers than current Irish law, and in particular only allows for review of concentrations "that could have a significant impact on media pluralism and editorial independence". This threshold can however be met by a transaction in which only one media undertaking (rather than two or more) is involved.
Ireland's proposal is to change our law so that the scope of our mandatory media merger regime aligns with that envisaged under EMFA, with there being a new 'call in regime' alongside it. The main proposed changes to effect this include (i) a new requirement that the target/proposed JV be a media business active in Ireland, and (ii) very slightly increasing the current threshold for an Irish nexus, so that the above-quoted physical presence and turnover requirements are cumulative requirements rather than alternative requirements (ie, a plus b rather than a or b).
Ireland is also considering transferring full responsibility for media merger reviews from the Minister to the Media Regulator. These and other proposed changes arising from EMFA are currently subject to an ongoing public consultation.
What This Means for Business
EMFA implementation in Ireland looks to be good news for foreign owners of Irish media businesses, to the extent that it is likely to put an end to the Irish media merger filing requirements which apply to their 'foreign-to-foreign' mergers and 'non-media JVs'.
EMFA implementation in Ireland may raise concerns in relation to new mandatory filing requirements for acquisitions of social media platforms which provide access to media content. However, it appears that this new jurisdiction will only apply where the platform is the target of a transaction and not where the platform is the acquirer (ie, where a platform acquires a business with a media content focus).
We will continue to provide updates on this, as and when Irish implementing legislation is released.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.