Mergers are a mechanism used by businesses to restructure in order to compete and prosper. However, some mergers can have a negative effect on consumer welfare by, for example, leading to an increase in price or a reduction in output. That is, they substantially lessen competition and, as a result, consumers (including businesses) suffer.
Mergers over a certain financial threshold must be notified to the Competition and Consumer Protection Commission (“Commission”) for review as required by the Competition Act 2002, as amended (the “Competition Act”). It should be noted that the Competition and Consumer Protection Act 2014 (the “2014 Act”) made a number of important amendments to the merger review regime set out in the Competition Act. The Commission aims at all times to make sure that mergers are reviewed in a timely manner so that good mergers are not held up. At the same time, the Commission actively protects the interests of consumers and has the power to block mergers where it finds that the merger will lead to a “substantial lessening of competition”.
The procedures and timelines of the Commission in reviewing notified mergers are set out below. This section also:
Provides a list of all mergers notified to the Commission and their status and also mergers notified to the Competition Authority. This is available in Merger Notifications.
Provides the legal definition of a merger and information on whether and when a merger needs to be notified. This is set out in When to Notify.
Sets out the procedures for how to notify.
Sets out the legislation and guidance that relate to the review of mergers and acquisitions.
Merger Review Process
The merger review process of the Commission involves:
(i) a review period (Phase 1), following which a determination must be made either to clear the merger or to proceed to a full investigation as described below. The Commission’s deadline to make a Phase 1 determination is 30 working days after the “appropriate date” (as defined in section 19(6) of the Competition Act, as amended by section 56(c) of the 2014 Act) or 45 working days after the “appropriate date” if any of the undertakings that made the notification submits proposals to the Commission.
(ii) a full investigation (Phase 2) if, after the Phase 1 investigation, the Commission is unable to conclude that the proposed transaction will not lead to a substantial lessening of competition in any market for goods or services in the State. The Commission’s deadline to make a Phase 2 determination is 120 working days after the “appropriate date”. Within this deadline, the Commission must determine whether to clear the merger (with or without conditions) or prohibit the merger.
The appropriate date from which the above deadlines are calculated is normally the date of notification. However, this changes to a later date if the Commission issues within 30 working days from the date of notification a formal requirement for the merging parties to provide further information. In addition, the Commission’s deadline of 120 days for making a Phase 2 determination will stand suspended for a certain period if – within 30 working days from the date of opening of its Phase 2 investigation – the Commission issues a formal requirement for the merging parties to provide further information.