1 Relevant Authorities and Legislation
1.1 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.
1.2 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, SCIP 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.
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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.