Mergers and acquisitions, as defined below, involving companies that meet the requirements set out in section 18(1) are subject to mandatory notification to the Authority. When these requirements are not met, mergers and acquisitions can be notified to the Competition Authority on a voluntary basis.
Definition of a Merger or Acquisition
According to section 16, a merger or acquisition occurs if:
(a) 2 or more undertakings, previously independent of one another, merge, or
(b) one or more individuals or other undertakings who or which control one or more undertakings acquire direct or indirect control of the whole or part of one or more other undertakings, or
(c) the result of an acquisition by one undertaking (the "first undertaking") of the assets, including goodwill, (or a substantial part of the assets) of another undertaking (the "second undertaking") is to place the first undertaking in a position to replace (or substantially to replace) the second undertaking in the business or, as appropriate, the part concerned of the business in which that undertaking was engaged immediately before the acquisition.
The general rule for mandatory notification is found in section 18(1)(a), which provides that a notification must be made to the Competition Authority (within one month after the conclusion of the agreement or the making of the public bid) if, in the most recent financial year,
(a) the world-wide turnover of each of 2 or more of the undertakings involved in the merger or acquisition is not less than €40,000,000,
(b) each of 2 or more of the undertakings involved in the merger or acquisition carries on business in any part of the island of Ireland, and
(c) the turnover in the State of any one of the undertakings involved in the merger or acquisition is not less than €40,000,000.
However, the following exceptions to the general rule apply:
Under section 18(1)(b), mergers or acquisitions that fall within a class of merger or acquisition specified in an order by the Minister for Enterprise, Trade and Innovation must be notified to the Competition Authority irrespective of the turnover of the undertakings involved. To date, Statutory Instrument No. 122 of 2007 is the only order made by the Minister specifying a class of merger or acquisition for the purposes of section 18(1)(b).
This order relates to media mergers and establishes the obligation to notify:
(a) mergers or acquisitions in which two or more of the undertakings involved carry on a media business in the State, and
(b) mergers and acquisitions 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.
Under section 7 of the Credit Institutions (Financial Support) Act 2008, where the Minister for Finance has formed the opinion that a proposed merger or acquisition involving a credit institution is necessary to maintain the financial stability of the State, that merger or acquisition must be notified to the Minister for Finance rather than to the Competition Authority.
Transitional Arrangements Applicable to Mergers and Acquisitions
On 18 September 2014 the Mergers Division wrote to legal practitioners informing them about transitional arrangements for mergers in the context of the Competition and Consumer Protection Act 2014 which will come into effect on 31 October 2014. A copy of the letter can be found here.
Section 18(3) of the Competition Act 2002 provides for the voluntary notification of mergers and acquisitions that do not meet the financial thresholds specified in section 18(1)(a). Voluntary notification is desirable for mergers and acquisitions that do not meet the financial thresholds but have the potential to substantially lessen competition in the State.