1 RELEVANT AUTHORITIES AND LEGISLATION
Who is/are the relevant merger authority(ies)?
The Competition and Consumer Protection Commission ("CCPC") is responsible for the promotion and enforcement of competition law in Ireland. The CCPC was established on 31 October 2014, when the functions of the Competition Authority and the National Consumer Agency were amalgamated into a single agency. The CCPC has sole responsibility for investigating notifiable mergers under Part 3 of the Competition Act 2002 (as amended) ("Competition Act"). In addition to being subject to the CCPC process, media mergers (as defined in the Competition Act) are subject to a separate process, involving the Minister for Communications, Climate Action and Environment ("Minister for Communications"). That process is described in more detail in response to question 2.7 below.
What is the merger legislation?
Irish merger control law is set out in Part 3 of the Competition Act. The Competition Act was substantially amended by the Competition and Consumer Protection Act 2014 ("2014 Act"), which introduced new jurisdictional thresholds, updated the specific regime for media mergers and established a new national competition authority, the CCPC. The CCPC has published a number of guidance papers on various aspects of the merger review process and on the interpretation of certain terms used in the Competition Act.
1.3 Is there any other relevant legislation for foreign mergers?
There is no foreign investment control legislation in Ireland.
1.4 Is there any other relevant legislation for mergers in particular sectors?
Media mergers are subject to a specific regime under Part 3A of the Competition Act, described further in response to question 2.7 below.
2 TRANSACTIONS CAUGHT BY MERGER CONTROL LEGISLATION
2.1 Which types of transaction are caught – in particular, what constitutes a "merger" and how is the concept of "control" defined?
For the purposes of Section 16 of the Competition Act, a merger or acquisition arises if any of the following events occurs:
- two or more undertakings, previously independent of one another, merge;
- one or more undertakings, or one or more individuals who already control one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings; and
- the acquisition of part of an undertaking, although not involving an acquisition of a corporate legal entity, involves the acquisition of assets (including goodwill) that constitute a business to which a turnover can be attributed.
The Competition Act states that control is acquired by an individual or undertaking if they either become the holder of the rights or contracts themselves or acquire the power to exercise the rights derived from those rights or contracts. Control is generally commensurate with the concept of decisive influence under the EU Merger Regulation, i.e. that it gives the acquiring undertaking the ability to affect the strategic commercial direction of the acquired undertaking or asset. Although not bound to do so, the CCPC generally follows the approach to the concept of control as set out in the European Commission's Consolidated Jurisdictional Notice ("CJN").
The definition of a merger/acquisition under the Competition Act includes the acquisition of assets that constitute a business to which a turnover can be attributed. Therefore, Irish merger control can apply to transactions involving the acquisition of property that generates rental income where the relevant turnover thresholds are met. There have been numerous examples of property transactions being notified to the CCPC since October 2014, including IPUT plc/ Deloitte House, SCIF Hotels/Connemara Coast Hotel and Kennedy Wilson/Elysian Building Cork.
2.2 Can the acquisition of a minority shareholding amount to a "merger"?
The position on minority interests under the Competition Act is similar to the position under the EU Merger Regulation and the CJN. The acquisition of a minority interest in an undertaking will only amount to a merger or acquisition for the purposes of the Competition Act where the minority interest is sufficient to give the undertaking involved joint or sole control. The approach to assessing whether control is acquired through veto rights or on a de facto basis is largely the same as set out under the CJN.
2.3 Are joint ventures subject to merger control?
Section 16(4) of the Competition Act provides that the creation of a joint venture to perform, on a lasting basis, all the functions of an autonomous economic entity constitutes a merger or acquisition. In interpreting this provision, the CCPC generally follows the approach of the European Commission on full-function joint ventures under the EU Merger Regulation and, in particular, the approach to the analysis of full-functionality set out in the CJN.
Where a joint venture does not qualify as full-function, it may still be assessed under the rules on restrictive agreements under Section 4 of the Competition Act, which are in all material respects identical to those under Article 101 of the Treaty on the Functioning of the European Union. In this case, the CCPC tends to have regard to the European Commission's Guidelines on Horizontal Co-operation Agreements and the Guidelines on Vertical Restraints in its assessment.
2.4 What are the jurisdictional thresholds for application of merger control?
A merger or acquisition as defined in the Competition Act will be notifiable if the following thresholds are met in the most recent financial year of each undertaking involved:
- the aggregate turnover in the State of the undertakings involved is no less than €50 million; and
- the turnover in the State of each of two or more of the undertakings involved is no less than €3 million.
Subject to parliamentary approval it is proposed to increase the thresholds for merger control effective from 1 January 2019. From that date a merger or acquisition as defined in the Competition Act will be notifiable if the following thresholds are met in the most recent financial year of each undertaking involved:
- the aggregate turnover in the State of the undertakings involved is no less than €60 million; and
- the turnover in the State of each of two or more of the undertakings involved is no less than €10 million.
The CCPC has issued guidance as to the interpretation of certain terms used above; in particular, "undertakings involved" and "turnover in the State".
For the purposes of the Competition Act thresholds, on the acquirer side, the turnover of the entire group to which the acquiring entity belongs is taken into account. On the target business side, only the turnover of the target business is relevant, i.e. the turnover of the remainder of the vendor's group is not taken into account. For example, in an acquisition of sole control, the turnover to be taken into account is the turnover of the entire group to which the acquiring entity belongs and the turnover of the target business alone. In acquisitions of joint control, the undertakings involved are each of the parties (on a group basis) acquiring (and, where relevant, maintaining) joint control and, if the target is a pre-existing company, the target company.
While there is no statutory definition of "turnover in the State", the CCPC has interpreted it to mean the value of services provided or sales made to customers located in Ireland in the relevant year. Thus, turnover of companies booked as Irish turnover for accounting/tax purposes but which do not derive from sales to customers in Ireland would typically be excluded from the turnover calculation. The CCPC considers that this approach applies equally to the turnover of credit and financial institutions and, therefore, it does not follow the approach under the EU Merger Regulation to the geographic allocation of turnover of such institutions.
With the exception of media mergers, which fall to be assessed under the Competition Act regardless of whether the turnover-based thresholds are met or not, the thresholds do not vary depending on the industry sector. In calculating turnover, the CCPC normally follows the European Commission's guidance on calculation of turnover in situations where there has been a significant acquisition or disposal following the end of the most recent financial year.
2.5 Does merger control apply in the absence of a substantive overlap?
Yes. Any merger or acquisition which meets the turnover thresholds set out in the Competition Act must be notified to the CCPC, regardless of whether or not an overlap arises.
2.6 In what circumstances is it likely that transactions between parties outside your jurisdiction ("foreignto- foreign" transactions) would be caught by your merger control legislation?
The relevant jurisdictional thresholds apply irrespective of whether or not the transaction concerns undertakings incorporated in Ireland, and thus can apply to "foreign-to-foreign" transactions. However, given the relevant turnover to be taken into account is the turnover in the State of the undertakings involved, the jurisdiction of Irish merger control rules is primarily targeted at transactions with a nexus to Ireland.
2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by other provisions.
In addition to meeting the turnover-based thresholds under the Competition Act, Section 18 of the Competition Act provides that a merger may be notifiable if it falls within a class of merger or acquisition that has been specified in an Order by the Minister for Business, Enterprise and Innovation. To date, the Minister has specified that all media mergers (as described in more detail below) are notifiable to the CCPC, regardless of the turnover of the undertakings involved.
Part 3A of the Competition Act provides that media mergers may be assessed on the basis of their impact on the plurality of views in the media. This assessment is conducted by the Minister for Communications in a distinct review process following the CCPC's assessment of the merger from a competition perspective. A "media merger" is defined in the Competition Act as:
- a merger or acquisition in which two or more of the undertakings involved carries on a media business in the State; or
- a merger or acquisition in which one or more of the undertakings involved carries on a media business in the State and one or more of the undertakings involved carries on a media business elsewhere. A "media business" is defined in the Competition Act as:
- publishing newspapers or periodicals consisting substantially of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet;
- transmitting, or re-transmitting or relaying a broadcasting service;
- providing any programme material consisting substantially of news and comment on current affairs to a broadcasting service; or
- making available on an electronic communications network any written, audio-visual or photographic material consisting substantially of news and comment on current affairs that is under the editorial control of the undertaking making available such material.
"Carrying on a media business in the State" is defined in the Competition Act as: (i) having a physical presence in the State, including a registered office, subsidiary, branch, representative office or agency and making sales to customers located in the State; or (ii) having made sales in the State of at least €2 million in the most recent financial year.
In June 2015, the Minister for Communications adopted guidelines on the assessment of media mergers. In line with information required under the guidelines, the Minister has issued a specific notification form on which media mergers must be notified. To date, no order has been made by the Minister for Communications prohibiting a media merger from being put into effect. However, in January 2017, the Minister determined that the proposed acquisition by Independent News and Media Holdings Limited of CMNL Limited may be contrary to the public interest in protecting the plurality of the media in the State and requested the Broadcasting Authority of Ireland ("BAI") to conduct a full examination of the proposed transaction. The BAI reported on the proposed merger on 9 May 2017, recommending that the merger be permitted to proceed subject to conditions. However, the parties ultimately withdrew from the proposed merger.
In addition to the provisions of Part 3A of the Competition Act, the CCPC's jurisdiction may be usurped if the transaction is referred to the European Commission under Article 4(5) or Article 22 of the EU Merger Regulation.
2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various stages constitute a single transaction or a series of transactions?
Transactions that involve the staggered acquisition of control in stages are notifiable to the CCPC once a party has acquired control. Depending on the circumstances, the CCPC can treat two acquisitions as comprising one and the same transaction (see, for example, M/10/002 One Equity Partners/Genband Inc/CVAS). While the CCPC has not issued any specific guidance in relation to assessing mergers that are structured in stages, its approach generally follows that of the European Commission as set out in the CJN.
3 NOTIFICATION AND ITS IMPACT ON THE TRANSACTION TIMETABLE
3.1 Where the jurisdictional thresholds are met, is notification compulsory and is there a deadline for notification?
A transaction that meets the financial thresholds set out in the Competition Act must be notified to the CCPC, and may not be put into effect until the CCPC clears the transaction or the applicable statutory period for a CCPC determination expires without the CCPC making a determination.
Prior to reform of the merger control rules in 2014, notifications had to be made within one month of the conclusion of the agreement or the making of the public bid. This deadline no longer applies.
3.2 Please describe any exceptions where, even though the jurisdictional thresholds are met, clearance is not required.
There are no such exceptions, i.e. where clearance is not required after jurisdictional thresholds have been met, in Ireland.
3.3 Where a merger technically requires notification and clearance, what are the risks of not filing? Are there any formal sanctions?
Knowing and willful failure to notify a notifiable merger or acquisition is a criminal offence. Section 18(9) of the Competition Act provides that an undertaking or the person in control of an undertaking, convicted of such an offence may be liable on summary conviction to a fine not exceeding €3,000 or, on conviction on indictment, to a fine not exceeding €250,000. Section 18(10) provides for maximum daily penalties of €25,000 for each day that an indictable offence continues after the date of its first occurrence, and €300 a day for a summary offence.
3.4 Is it possible to carve-out local completion of a merger to avoid delaying global completion?
Generally, it is not possible to carve-out local completion of a merger or acquisition, and any transaction put into effect prior to receipt of clearance by the CCPC is void and unenforceable under Irish law. The 2014 Act closed off the "warehousing exception" previously available, by which certain temporary acquisitions of control were not notifiable. The position under the Competition Act is that this exception does not apply to transactions involving the future onward sale of the business to an ultimate buyer in circumstances where the ultimate buyer bears the major part of the economic risk.
3.5 At what stage in the transaction timetable can the notification be filed?
A transaction can be notified to the CCPC after any of the following events occurs:
- One of the undertakings involved has publicly announced an intention to make a public bid or a public bid has been made but not yet accepted.
- In relation to a scheme of arrangement, the scheme document is posted to shareholders.
- The undertakings involved demonstrate to the CCPC a good faith intention to conclude an agreement, or a merger or acquisition is agreed. It is not necessary for a binding transaction agreement to be signed to demonstrate this, but typically, the CCPC will look for at least a heads of terms or term sheet that is in an agreed form as between the parties. This early notification trigger was introduced as part of the 2014 reforms of the merger control regime, and follows closely the approach taken by the European Commission under the EU Merger Regulation.
3.6 What is the timeframe for scrutiny of the merger by the merger authority? What are the main stages in the regulatory process? Can the timeframe be suspended by the authority?
The Competition Act sets out a two-phase process for the review of notifiable mergers and acquisitions.
In an initial Phase I investigation, the CCPC has 30 working days from the "appropriate date" (as defined under the Competition Act) to either clear the transaction or open a Phase II investigation. The "appropriate date" is the date of notification or, where the CCPC makes a formal Requirement for Information in writing ("RFI") during Phase I, the date on which the RFI is complied with. An RFI during Phase I therefore has the effect of resetting the 30-workingday review timetable and failure to comply with an RFI is a criminal offence. The Phase I period is automatically extended to 45 working days where remedy proposals are made by the notifying parties to overcome competition concerns.
In a full Phase II investigation, the CCPC has 120 working days from the "appropriate date" to make a Phase II determination. Provided that the "appropriate date" is the date of notification (and is not reset by an RFI during Phase I) and the CCPC takes the full 30-working-day period in Phase I, Phase II will run for a further 90 working days. However, if the CCPC makes an RFI during the first 30 working days of the Phase II process, the running of the clock is suspended until the request is complied with. The deadline by which the CCPC must issue a Phase II determination may be extended from 120 to 135 working days where proposals to address competition concerns are made by the parties.
Unlike the practice of the European Commission, in most cases, the CCPC does not require the parties to engage in extensive or detailed pre-notification discussions prior to submission of the notification. However, parties to a merger or acquisition are free to request a prenotification meeting with the CCPC to discuss jurisdictional issues, as well as any other legal issues that may arise. The CCPC has stated that it welcomes the opportunity to have such discussions.
3.7 Is there any prohibition on completing the transaction before clearance is received or any compulsory waiting period has ended? What are the risks in completing before clearance is received?
Section 19(1) of the Competition Act provides that a notifiable transaction may not be put into effect until the CCPC clears the transaction or the applicable statutory period for a CCPC determination expires without the CCPC making a determination. A notified merger which is put into effect prior to a clearance determination is void as a matter of Irish law.
Closing after notification but prior to receipt of clearance is not a criminal offence. However, any person who fails to observe a determination of the CCPC or commitments decision (or any person who aids, abets or assists another person, or conspires with another person to contravene such determination or commitment decision) is guilty of an offence, and may be liable:
- on summary conviction, to a fine not exceeding €3,000 or to a term of imprisonment not exceeding six months, or both; and
- on conviction on indictment, to a fine not exceeding €10,000 or to a term of imprisonment not exceeding two years, or both.
In addition, if the breach continues for one or more days after the date of its first occurrence, the person is guilty of a separate offence and may be liable on summary conviction to a fine not exceeding €300 and, on conviction on indictment, to a fine not exceeding €25,000. The CCPC's predecessor, the Competition Authority, has previously published a notice on "gun-jumping", i.e. failing to notify a notifiable transaction and implementing the transaction prior to clearance, in which it outlined that it takes gun-jumping very seriously. The CCPC has investigated a number of gun-jumping cases in recent years (notably Radio 2000/Newstalk and Musgrave/Superquinn). In those cases, the parties agreed to notify the transaction in question and, in those circumstances, the CCPC did not pursue the imposition of fines for failure to notify.
The CCPC confirmed in February 2018 that it is investigating suspected gun-jumping in respect of the acquisition by Armalou Holdings Limited (through its wholly-owned subsidiary, Spirit Ford Limited) of Lillis O'Donnell Motor Company Limited in December 2015. Given the European Commission's recent interest in gunjumping cases, it will be interesting to observe the CCPC's approach in this case.
The CCPC will typically publish a press release when it becomes aware of a gun-jumping incident.
3.8 Where notification is required, is there a prescribed format?
Yes. Notifications to the CCPC must be made on the standard notification form, the template for which is available on the CCPC's website.
The notification form sets out the scope of information required from the parties, which includes a detailed description of the undertakings involved and the rationale for the proposed transaction, an analysis of the horizontal overlaps and vertical relationships arising, definitions of the relevant product and geographic markets, the market shares of the parties and their competitors in relevant markets, and the views of the parties as to the effect of the transaction on competition in the State.
The Minister for Communications has also prescribed a specific form for the notification of media mergers to the Department of Communications, Climate Action and Environment.
3.9 Is there a short form or accelerated procedure for any types of mergers? Are there any informal ways in which the clearance timetable can be speeded up?
There is no short form version of the CCPC notification form. However, in cases where no material overlaps or competition issues arise, the notifying parties may request waivers from the CCPC in respect of certain detailed information required in the notification (in particular, in Section 4 concerning the areas of horizontal overlap and vertical relationships).
The CCPC does not have a formal process for shortening its review period, but it is also not obliged to take the full 30-workingday investigation period at Phase I or the full 120-working-day investigation period at Phase II to reach its determination and clear the transaction. In practice, the CCPC regularly clears transactions more quickly than the maximum timeframe allowed for under the Competition Act. According to its most recent Annual Report for 2017, the average time to clear Phase I transactions was 24 working days (down marginally from 26 working days in 2016, although the review timeframe will depend on the nature of the transaction and the workload of the CCPC mergers division at that particular point).
3.10 Who is responsible for making the notification?
Under the Competition Act, all of the "undertakings involved" in a transaction are obliged to notify. In practice, most notifications are submitted jointly. However, in an asset acquisition, the vendor is not an "undertaking involved", and thus only the purchaser is obliged to notify.
3.11 Are there any fees in relation to merger control?
The filing fee is currently €8,000 and must be paid electronically on filing.
3.12 What impact, if any, do rules governing a public offer for a listed business have on the merger control clearance process in such cases?
An announcement to make a public bid by one of the undertakings involved, or the making of a public bid that has yet to be accepted, is a trigger for making a notification to the CCPC. In the case of a public bid, the transaction may also be notified by the purchaser alone. However, there are otherwise no special rules applicable to public offers for listed businesses.
3.13 Will the notification be published?
The notification itself is confidential and will not be published by the CCPC. However, the CCPC will publish a notice that a transaction has been notified within seven days of receipt of the notification. This notice will provide basic details about the transaction, namely the parties, the industry sector involved, the details of the case officer assigned to the review and an invitation for third parties to comment (typically within 10 working days).
The CCPC will publish the text of a determination on its website at the earliest possible date (and in any event, within two months of the date of the determination) after allowing the undertakings involved an opportunity to indicate any information that the parties consider to be confidential and should be redacted.
Originally published by International Comparative Legal Guide
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.