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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
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  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
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  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
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  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
IRELAND

Cormac Little
Partner and Head
of Competition & Regulation

cormac.little@williamfry.com

Tel: +353 1 639 5114

Eoin O'Cuilleanain
Associate, Competition & Regulation

eoin.ocuilleanain@williamfry.com

Tel: +353 1 489 6438

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.
Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control rules was introduced in Part 3 of the Irish Competition Act 2002 (as amended) (the "Competition Act"), which governs competition law in the Republic of Ireland (i.e., the island of Ireland excluding Northern Ireland).

2) Which authorities enforce the merger control regulation?

The Irish Competition and Consumer Protection Commission (the "CCPC") enforces all aspects of the Competition Act, including the merger control rules.

Decisions of the CCPC may be appealed to the Irish High Court.

3) Relevant regulations and guidelines with links:

Links to the relevant legislation, guidelines and forms are listed here:

Official English version

The Irish Competition Act 2002 (as amended) (unofficial, administrative consolidation)

Merger Notification Form

The CCPC's Guidelines for Merger Analysis

Notice in respect of certain terms used in Part 3 of the Competition Act

Notice in respect of the review of non-notifiable mergers and acquisitions

Access to the File in Merger Cases

The CCPC's Guidelines for notifying mergers or acquisitions under the Simplified Merger Notification Procedure

4) Does general competition regulation apply to mergers or ancillary restrictions?

Irish competition law is interpreted in accordance with EU competition law in this respect.

Any merger clearance decision by the CCPC will also apply to any notified ancillary restraints.  Under Section 4(8) of the Competition Act, if ancillary restraints are included in a notification and the transaction is subsequently cleared (or deemed cleared) by the CCPC, they will not be prohibited under the rules concerning anti-competitive arrangements under the Competition Act.  

When the relevant Irish merger notification thresholds (see topic 14) have not been met, general EU/Irish competition law rules may nonetheless be used to oppose a merger or acquisition. 

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Media mergers

Media mergers (see topic 15) must be notified both to the CCPC and the Minister for Communications, Climate Action and Environment (the “Minister”).  (If a media merger satisfies either of the turnover tests in the EU Merger Regulation, the parties would of course notify the media merger to the European Commission, and not the CCPC.)  The CCPC (or, if applicable, the European Commission) will consider competition aspects of the merger, while the review by the Minister will consider whether the media merger is likely to be contrary to the public interest in protecting the plurality (i.e., diversity of ownership and of content) of the media in the Republic of Ireland.  

The notifications to the CCPC (or, if applicable, the European Commission) and the Minister are separate and consecutive.  In other words, a media merger may not be notified to the Minister until it has been cleared by the CCPC (or, if applicable, the European Commission).

7) Are any parts of the territory exempted or covered by particular regulation?

The Competition Act covers the whole of the Republic of Ireland.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the relevant jurisdictional thresholds are met.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, Section 16(1) of the Competition Act defines a “merger or acquisition” as: 

  1. the merger of two or more previously independent undertakings;
  2. the sole or joint acquisition of direct or indirect “control” of the whole or part of an undertaking (by one or more individuals who already control one or more undertaking, or one or more undertakings);
  3. the creation of a ‘full-function’ joint venture; and
  4. an acquisition of assets (which may include goodwill) constituting a business to which turnover can be attributed.

Please note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

The concept of “control” under the Competition Act is similar to that under the EU Merger Regulation.  According to Section 16(2) of the Competition Act, control exist if decisive influence is capable of being exercised with regard to the activities of an undertaking, by means of securities, contracts or other means, or any combination of these, in particular by:

  1. ownership of, or the right to use all or part of, the assets of another undertaking; or
  2. rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control.

The concepts of "control" and "change of control" are interpreted according to EU competition law, including the European Commission’s Consolidated Jurisdictional Notice.  More generally, given the lack of official guidance from the CCPC and the Irish courts on several merger control issues, the approach taken in the European Commission’s Consolidated Jurisdictional Notice is generally considered to apply in the Republic of Ireland.

12) Acquisition of a minority interest

There is no jurisdictional guidance from the CCPC or the Irish courts on this issue.  That said, the approach taken in the European Commission’s Consolidated Jurisdictional Notice is likely to be replicated in the Republic of Ireland.

13) Joint ventures/joint control – which transactions constitute mergers?

Under Section 16(4) of the Competition Act, the creation of a full-function joint venture is notifiable to the CCPC. Using similar wording to that in the EU Merger Regulation, Section 16(4) provides that a joint venture is “full-function” if it performs, on a lasting basis, all the functions of an autonomous economic entity. 

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from sole to joint control
  3. Change from joint to sole control
  4. Change in participants/owners in a joint venture 
Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

Under Section 18(1)(a) of the Competition Act, a merger or acquisition must be notified to the CCPC if:

  1. the parties have a combined Irish turnover of at least €60 million; and 
  2. at least two of the parties have an individual Irish turnover of at least €10 million.

The CCPC generally interprets "Irish turnover" to mean turnover derived from sales made to customers located in the Republic of Ireland.  This is generally taken to apply to all sectors of the economy (including financial services, which differs from the position under the EU Merger Regulation). Irish  turnover is measured by reference to the parties' respective most recent financial years.  (Please note that these turnover thresholds do not apply to media mergers.)

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

Special rules apply to media mergers (see topic 15).

15) Special thresholds for particular businesses

Media mergers must be notified to the CCPC and the Minister regardless of the turnover of the undertakings involved, in cases where at least one undertaking involved carries on a media business in the Republic of Ireland and at least one other undertaking involved carries on a media business either in the Republic of Ireland or elsewhere.  

“Carries on a media business in the State” means, in relation to a media business: 

  1. having a physical presence in the Republic of Ireland, including a registered office, subsidiary, branch, representative office or agency, and making sales to customers located in the Republic of Ireland; or 
  2. having made sales in the Republic of Ireland of at least €2 million in the most recent financial year. 

“Media business” is defined broadly to include the publication of newspapers, transmitting a broadcasting service, providing content to a broadcasting service and making available an online service consisting substantially of news and comment on current affairs.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation and geographical allocation of turnover are generally interpreted in accordance with the European Commission’s Consolidated Jurisdictional Notice.

The CCPC generally interprets Irish turnover to mean turnover derived from sales made to customers located in the Republic of Ireland.  This is generally taken to apply to all sectors of the economy (including financial services, which differs from the position under the EU Merger Regulation).  

Similarly to the rules in the EU Merger Regulation, Irish turnover is assessed at the level of the undertaking, i.e., the economic entity, rather than the legal entity involved.  Similarly, the concepts of turnover, ordinary activities, net turnover and financial accounts contained in the European Commission’s Consolidated Jurisdictional Notice apply in the Republic of Ireland.  Specifically, with regard to net turnover, Section 16(2)(a) of the Competition Act makes clear that Irish turnover “does not include any payment in respect of value-added tax on sales or the provision of services or in respect of duty of excise”.

17) Special rules on calculation of turnover for particular businesses

There are no special rules on calculation of turnover for particular businesses under the Competition Act.

18) Series of transactions that must be treated as one transaction

The rules contained in the European Commission’s Consolidated Jurisdictional Notice regarding inter-dependent and inter-conditional transactions are likely to apply in the Republic of Ireland.  See also topic 19 regarding temporary control.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

A filing to the CCPC is only required if there is a change of control on a lasting basis.  In accordance with the European Commission’s Consolidated Jurisdictional Notice, a change of control may be considered temporary – and therefore not require merger filing – if a transaction is divided into steps.

Section 16(6)(d) of the Competition Act makes clear that a “merger or acquisition” (for the purposes of Irish merger control rules) does not occur if control is acquired temporarily by an undertaking the normal activities of which involves the dealing in securities on its own account or on the account of others.  However, where control is acquired temporarily by such an undertaking on the basis of the future onward sale of the business to an ultimate buyer who bears the major part of the economic risks, the transaction must be notified.  In other words, 'warehousing' is not permitted under Irish merger control rules. 

20) Special industries, owners or types of transactions

In addition to temporary changes of control outlined in topic 19, Sections 16(6)(a) to (c) make clear that no filing is required if: 

  1. the acquisition of control occurs during a statutory insolvency process (i.e., the acquisition of control by a receiver or liquidator);
  2. all the undertakings involved are under the control of the same undertaking; or
  3. control is acquired by result of succession on inheritance.

21) Transactions involving only foreign businesses (foreign-to-foreign)

Regardless of any potential competitive effects in the Republic of Ireland, foreign-to-foreign mergers require a merger filing if the thresholds for turnover in the Republic of Ireland are met.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. 

That said, such transactions may qualify for expedited review under the CCPC's simplified merger notification procedure (the "Simplified Procedure") which has been in force since 1 July 2020.  Where the Simplified Procedure applies, notifying parties are exempt from the obligation to provide certain information in the merger notification form.

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU's "one-stop shop" principle, Irish merger control rules do not apply if the thresholds under the EU Merger Regulation are exceeded and the European Commission has not referred the transaction to the CCPC.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. Voluntary notifications may be submitted to the CCPC in the case of transactions that do not satisfy the filing thresholds.  The CCPC has published a Notice in respect of non-notifiable transactions (see link at topic 3).

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes.  The CCPC has the power to initiate court proceedings under Section 4 of the Act (which mirrors Article 101 of the Treaty on the Functioning of the European Union) in respect of any non-notifiable merger which, in its view, gives rise to sufficient competition concerns. In such circumstances, the CCPC would usually seek a court injunction preventing the parties from completing the relevant transaction.

However, the CCPC has used this power only very rarely.  In lieu of initiating proceedings, the CCPC sometimes strongly encourages parties to a non-notifiable transaction to consider notifying such transactions on a voluntary basis.  

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The CCPC cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

The European Commission may refer a merger or a part of a merger to the CCPC. In that case, the CCPC may handle the merger even if the thresholds for merger notification in the Republic of Ireland are not exceeded. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the CCPC will handle the Irish aspects.

A referral of a merger from the European Commission may be requested either by the CCPC or by the merging parties.

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU Member States, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29).

The CCPC may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation but affects trade between EU member states and threatens to significantly affect competition in the Republic of Ireland. Such a request shall be made within 15 working days of the date on which the merger was notified to the CCPC. The European Commission shall immediately notify the other EU Member States of the request and will decide whether to examine the merger within 25 days after this notification.

Besides referral to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the CCPC:
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the CCPC, provided that the merger may significantly affect competition in a distinct market in the Republic of Ireland. If the CCPC does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the CCPC, decide to refer a merger that has already been notified to the European Commission to the CCPC. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the CCPC: 
If a merger is not subject to EU merger control but is subject to merger control in the Republic of Ireland and at least two other EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in the Republic of Ireland or any other EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

A notifiable transaction may not be completed until it has been notified to, and cleared by, the CCPC.  (See topic 42 for further details on the consequences of failure to notify.)  That said, there is no fixed deadline (e.g., a specified time period following signing of an agreement) for notifying a transaction.  

A transaction must be sufficiently far advanced to warrant consideration by the CCPC.  Under Section 18(1A) of the Competition Act, the parties can notify any time after:

  1. one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted; 
  2. the undertakings involved demonstrate to the CCPC a good faith intention to conclude an agreement or a merger or acquisition is agreed; or
  3. in relation to a scheme of arrangement, a scheme document is posted to shareholders. 

See topic 32 for further details on timing for public takeover bids/acquisitions on stock exchanges. 

31) Pre-notification consultations

The CCPC is generally willing to engage in pre-notification discussions, although this is not required. This may include the submission of a briefing paper and/or organising a pre-notification meeting or telephone call. While not binding on the CCPC, these confidential discussions provide an opportunity to discuss the scope of information to be submitted and to identify possible competition concerns at an early stage.

Separately, the CCPC is also prepared to give confidential and non-binding guidance on its interpretation of certain jurisdictional matters under the Competition Act when approached by parties.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

An acquisition of securities on a stock exchange or a public takeover bid may be made after one of the three scenarios in Section 18(1A) of the Act applies (see topic 30).  The requirement to obtain merger clearance prior to completion (i.e., acquiring and exercising control over the relevant company) applies equally to public takeover bids and acquisitions on stock exchanges as it does to other transactions.

Public takeover bids/acquisitions on stock exchanges in Ireland are done by way of general offer or scheme of arrangement. In either case, the acquirer must announce its intention to make a public bid in advance, following which a number of steps must be taken under Irish Takeover Rules (irrespective of whether merger control rules apply) before the transaction can be completed.

Under the Irish Takeover Rules, transactions implemented by way of scheme of arrangement require court approval.  This requirement creates a gap between the announcement of the intention to make a public bid and the posting of the relevant scheme document to shareholders.  In contrast, court approval is not required where a takeover is effected by way of general offer. 

Therefore, in general, where a transaction is implemented by scheme of arrangement, the CCPC does not consider the transaction to be sufficiently far advanced to warrant consideration until after the scheme document is posted to shareholders (even if an intention to acquire the target has been announced).  However, in certain circumstances, the CCPC may accept a notification if it is satisfied that the transaction is sufficiently far advanced (e.g., if the parties can demonstrate a good faith intention to agree the transaction).  In the case of transactions that proceed by way of general offer, the CCPC is likely to adopt a similar approach.  In other words, a notification can be made when the offer document is posted to the target's shareholders provided the parties can demonstrate a good faith intention to proceed.

33) Forms available for completing a notification

There is only one merger notification form (see link under topic 3).  If notifying parties wish to avail of the Simplified Procedure (see topic 22), they must indicate this on the form.  

34) Languages that may be applied in notifications and communication

Irish and English.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

  1. proof of payment of the merger notification fee of €8,000 (see topic 36 for further details);
  2. structure charts of each undertaking involved (Strictly speaking, structure charts are not required. The only requirement in this regard under the form is to "list the undertakings in the group(s) and the person or persons controlling these directly or indirectly".  However, the form clarifies that "this information may be illustrated by the use of organisation charts or diagrams to show the structure of ownership and control of the undertakings" and, in the vast majority of cases, notifying parties choose to use structure charts for ease of illustration.
  3. important agreements relating to distribution, supply, purchasing, joint development, research and development (R&D) or any other co-operative arrangements or alliances, for each area of horizontal overlap/vertical relationship; (Again, there is no strict requirement to provide such agreements. The only requirement is to identify such agreements and provide details of their type, subject matter, other parties and duration. That said, parties sometimes provide copies of such agreements to be fully co-operative and to pre-empt requests for same from the CCPC.)
  4. contact information for the top five customers, suppliers and competitors, both worldwide and in the Republic of Ireland, for each area of horizontal overlap/vertical relationship for each of the undertakings involved;(This information can be included in the merger notification form.  However, typically, parties opt to submit the relevant information in annexes to preserve confidentiality vis-à-vis each other during the notification process);
  5. details of the Irish turnover of each of the undertakings involved for each area of horizontal overlap/vertical relationship;
  6. a copy of the relevant agreement(s) concerning the transaction (e.g., Share Purchase Agreement, scheme document, etc.); 
  7. the most recent audited annual reports for each of the undertakings involved (if relevant);
  8. where there is a horizontal overlap or a vertical relationship, copies of all surveys, reports, analyses, studies, presentations and comparable documents concerning the transaction; and
  9. power of attorney (if relevant).

36) Filing fees

There is a filing fee of €8,000 per notification which must be made by electronic funds transfer.  The CCPC will not accept a notification without proof of payment.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

As with other EU jurisdictions, strict anti-gun-jumping rules apply in the Republic of Ireland.  This has recently attracted increased scrutiny, with criminal penalties being imposed by the Irish courts for breaches of these rules.

The Competition Act clearly states that a notifiable acquisition may not be put into effect until clearance has been obtained from the CCPC.  

38) May the parties get permission to implement before approval?

No.

39) Due diligence and other preparatory steps

Similarly to the failure to notify, Irish gun-jumping rules also apply to any integration prior to clearance and closing of a transaction. This is in line with other jurisdictions.  

While there is no firm guidance on the matter either from the CCPC or the Irish courts, the rules mean that:

  1. a purchaser must not directly or indirectly manage a target's business or take control of a target;
  2. the parties must not co-ordinate (even informally) their respective business activities (and, in particular, must not exchange competitively sensitive information); and
  3. the parties must continue to act as though the target will operate as a separate, independent business for the foreseeable future.

Integration planning is permitted.  It is generally permissible to share historical data and data about, e.g., employment, tax and health and safety matters – on a need-to-know basis as part of the due diligence or the integration planning processes.  However, any exchange of competitive sensitive information, co-ordination of activities or other conduct which would breach Section 4 of the Competition Act/Article 101 TFEU is prohibited until clearance and closing. 

40) Veto rights before closing and "Ordinary course of business" clauses

There is no firm guidance from either the CCPC or the Irish courts on the permissibility of "ordinary course of business" clauses (i.e., clauses preventing a target from taking decisions outside the course of its ordinary business until closing).  That said, such clauses are likely to be considered permissible, in line with EU rules.  However, such clauses must, of course, be assessed on a case-by-case basis.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve outs” of the Irish part of a transaction to avoid delaying implementation in the rest of the world pending approval in the Republic of Ireland.  The Competition Act simply states that the relevant transaction may not be put into effect until clearance has been obtained and is silent on whether the transaction in its entirety must await clearance in the Republic of Ireland. There is no specific guidance from the CCPC on this matter.

Therefore, strictly speaking, the Competition Act does not permit any "carve-out" of a transaction in the rest of the world. That said, the CCPC has taken a pragmatic approach to such occurrences as they have arisen.

42) Consequences of implementing without approval/permission

A transaction may not be completed without obtaining the requisite clearance.  Failure to notify a notifiable merger or acquisition or to supply information required is a criminal offence which may result in significant fines being imposed by the Irish courts (€3,000 on summary conviction or €250,000 on conviction on indictment, which can be increased by daily fines of €300 or €25,000 respectively in respect of breaches which continue for one or more days after their first occurrence).  

Notwithstanding the prohibition on failure to notify a notifiable transaction, the CCPC may request and/or accept a notification after an un-notified but notifiable transaction has closed, under Section 18(12A) of the Competition Act.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

While the CCPC is generally willing to engage in pre-notification discussions (particularly in complex transactions), such engagement is the exception rather than the norm.  (See topic 31).

No set duration or deadline

Assessment of completeness of notification:

There is no formal procedure regarding the assessment of completeness of a notification.  Generally, the CCPC accepts notifications and publishes details of same on its website on the day of, or the day after, a filing is made. 

No set duration or deadline

Phase I:

During or at the end of the Phase I period, the CCPC will either clear the transaction (possibly subject to commitments/remedies offered by the parties, if applicable), issue a formal request for information ("RFI") or move to a Phase II investigation (see section 4.9).  

For the purposes of the below (and for the purposes of a Phase II clearance (see below)), clearance includes deemed clearance.  This describes the situation where the relevant review period has elapsed without the CCPC having made a clearance decision, in which case a transaction is deemed cleared and may be completed.

During the initial 30 working day period, the CCPC may ask questions in order to clarify or expand on any aspect of the notification. These questions are usually asked in the first instance on an informal basis.  However, the issuing of an RFI has the effect of re-setting the clock (see across). 

The CCPC routinely contacts customers and suppliers of the notifying parties to obtain their comments on the likely effect of the proposed transaction (amongst other things) as part of the investigative process.

The CCPC must inform the parties within 30 working days of the notification date that it is either clearing the transaction or initiating a full Phase II investigation, unless (as noted above) this period has been lengthened by receipt of proposals from the parties or by the issuance of an RFI. However, if it were to initiate a full Phase II investigation, the CCPC would have an additional period of time in which to examine the transaction and request further information from the parties. 

If the CCPC clears the transaction at the end of Phase I (i.e., 30 working days or extended period as noted above), it will notify the parties of this fact. It will also issue a written decision, which will be published on its website.  The parties will have an opportunity to review a draft version of the decision, to identify any confidential information that should be removed before publication.  If the CCPC clears a merger or acquisition, then the transaction must be put into effect within 12 months of this decision.

30 working days starting on:

  1. the date of notification; or 
  2. if the CCPC has issued an RFI(s) (which has the effect of re-starting the clock from zero on the initial 30 working day period), the date of receipt of complete responses to all RFIs.

Where the CCPC decides to proceed under the Simplified Procedure, it will endeavor to clear the transaction as soon as practically possible following the expiration of 10 working days from notification (during which  interested third parties can make submissions).

Extension:
15 working days if commitments are offered by one of the parties.

Phase II:

In a Phase II investigation, the CCPC determines whether the merger or acquisition may:

  1. take effect;
  2. take effect but subject to conditions; or
  3. not take effect.

The CCPC can make an early decision within 40 working days of the commencement of the Phase II investigation allowing the merger or acquisition to go ahead if it concludes that it will not substantially lessen competition. Alternatively, the CCPC can furnish an Assessment within this timeframe to the notifying parties if it is not satisfied that the merger or acquisition will not substantially lessen competition. An Assessment is, in effect, a preliminary prohibition decision. 

Within five working days of the furnishing of the Assessment, any party to the transaction must notify the CCPC if it wishes make submissions and the CCPC will then fix a date to hear these. The notifying parties must make any submissions in response to the CCPC within 15 working days of the delivery of the Assessment and failure to reply may be deemed to constitute a waiver of that party’s right to contest the issues set out in the Assessment.

Third parties who have furnished submissions may also be invited to make oral submissions, at the discretion of the CCPC. 

If the CCPC clears the transaction at the end of Phase II (i.e., 120 working days or extended period as noted above), it will notify the parties of this fact. It will also issue a written decision, which will be published on its website.  The parties will have an opportunity to review a draft version of the decision, to identify any confidential information that should be removed before publication.  

If the CCPC clears a merger or acquisition (with or without conditions), then the transaction must be put into effect within 12 months of this decision. 

120 working days from the initial notification date (or, if relevant, the date of the submission of a complete set of responses to a Phase I RFI) (see above)

Extension:

If the CCPC issues an RFI during Phase II, this 'pauses the clock', which re-starts when the CCPC receives complete responses to all RFIs.  (However, the CCPC can only make such a request during the first 30 working days of a Phase II investigation.)

15 working days if commitments are offered by one of the parties (while the CCPC may impose commitments in a Phase II clearance decision, such imposition does not have the effect of extending the Phase II period)

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The CCPC is required to examine all notified transactions, to assess whether they are likely to result in a substantial lessening of competition in markets for goods or services in the Republic of Ireland.  This substantive test, which is also used in the United States, is similar to the "significantly impedes effective competition" test contained in the EU Merger Regulation.

In carrying out its analysis, the CCPC first considers the relevant product and geographic markets in terms of supply- and demand-side substitutability (applying the SSNIP test). It then assesses a transaction's effects on market structure with regard to concentration, using the Herfindahl-Hirschman (or HHI) test as an initial indicator of concentration levels before and after the transaction. Finally, the CCPC assesses whether the proposed transaction will substantially lessen competition in the Republic of Ireland, taking into account various factors such as: 

  1. whether, post-transaction, the combined undertaking will be able to raise prices unilaterally;
  2. whether the transaction is likely to facilitate overt or tacit collusion between competitors, resulting in increased prices;
  3. opportunities for market entry; 
  4. countervailing buyer power;
  5. the “efficiency defence” – i.e., whether the transaction is likely to lead directly to efficiency gains that cannot be realised by other means and which offset any anti-competitive effects; and
  6. whether the “failing firm” defence applies.

Further detail on how the CCPC analyses transactions is set out in its 2013 Guidelines for Merger Analysis (see link at topic 3).

45) May any non-competition issues be considered?

The Minister assesses media mergers in terms of their effects on the plurality of media in the Republic of Ireland.  (This is separate to the CCPC's review of media mergers, which is solely focused on competition issues.)  

Other than the Minister's review of media mergers, non-competition issues are not considered.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers.  However, if a joint venture also has co-ordination between the owners as object or effect, such co-ordination will be analysed in light of the general prohibition against anti-competitive agreements under Section 4 of the Competition Act/Article 101 TFEU.

47) Decisions and remedies/commitments available

A transaction may be cleared unconditionally, cleared with remedies/commitments or prohibited.

If the CCPC expresses serious concerns about the merger, the parties should consider entering negotiations regarding possible remedies before the expiry of the relevant deadlines.  During Phase I, the CCPC cannot impose remedies/commitments; a transaction may only be cleared subject to remedies/commitments which were proposed by one of the notifying parties.  However, the CCPC may impose remedies/commitments during Phase II.  

Remedies/commitments can be either structural (e.g., involving the divestment of part of the target business) or behavioral (e.g., 'hold separate' obligations).

The CCPC may apply to court in order to enforce compliance with the terms of a remedy/commitment which a clearance decision is subject to. Furthermore, contravention of a remedy/commitment is a criminal offence, punishable by a fine of up to €10,000 and/or a term of imprisonment of up to two years.

Publicity and access to the file

48) How and when will details about the merger be published?

Within seven days of receiving a notification, the CCPC will publish a notice on its website inviting comments from third parties. This notice will include the names of the parties, the name and contact details of the case officer, the industry involved and a deadline for receipt of comments.  At this stage, the transaction will be in the public domain and the parties should consider how to deal with any customer, media or other enquiries. The CCPC has the discretion not to publish a notice, on public interest grounds, but rarely (if ever) exercises this discretion.

The CCPC will also publish its decision to clear, to move to Phase II or, if applicable, to prohibit a transaction, on its website.  The parties will have an opportunity to review a draft version of the decision, to identify any confidential information that should be removed before publication.  

49) Access to the file for the merging parties and third parties

The merging parties:

When the CCPC has issued an Assessment (see topic 43), the addressees (i.e., the notifying parties) are given access to the CCPC's file. Such access may only be granted upon the parties' request, within 15 days of receipt of the Assessment.  

There is no right of access to the CCPC's file prior to the issue of an Assessment.  See the Procedures for Access to the File – link at topic 3).

Third parties:

Third parties have no right of access to the CCPC's file.

Judicial review

50) Who can appeal and what may be appealed?

Any notifying party can appeal to the Irish High Court within 40 working days against a decision to block a merger, or to allow a merger subject to conditions. Issues of fact and law may (subject to certain limits) form the subject of such an appeal. As far as practicable, the High Court must rule on such an appeal within two months. The High Court can annul the CCPC’s decision or confirm it (with or without changes). There is no provision in the Competition Act for appeal by third parties in the event of clearance by the CCPC. Such parties may, however, seek remedies under normal principles of judicial review.


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