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When to Notify

Mergers and acquisitions, as defined below, involving companies that meet the requirements set out in section 18(1) of the Competition Act 2002 (the “Competition Act”) (as substituted by section 55(a) of the Competition and Consumer Protection Act 2014 (the “2014 Act”)), are subject to mandatory notification to the Competition and Consumer Protection Commission ("Commission"). When these requirements are not met, mergers and acquisitions can be notified to the Commission on a voluntary basis in accordance with section 18(3) of the Competition Act (as substituted by section 55(c) of the 2014 Act).

Definition of a Merger or Acquisition

According to section 16(1) of the Competition Act (as amended by section 53 of the 2014 Act), a merger or acquisition occurs if:                                                                       

“(a) two or more undertakings, previously independent of one another, merge, or

(b) one or more individuals who already control one or more undertakings, or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings, or

(c) the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed, and for the purposes of this paragraph ‘assets’ includes goodwill.” 

Mandatory Notification

The general rule for mandatory notification is found in section 18(1)(a) of the Competition Act (as substituted by section 55(a) of the 2014 Act), which provides that a notification must be made to the Commission if, in the most recent financial year,

(a) the aggregate turnover in the State of the undertakings involved is not less than €50,000,000, and,

(b) the turnover in the State of each of two or more of the undertakings involved is not less than €3,000,000.

However, the following exceptions to the general rule apply:

Media Mergers

Under section 18(1)(b) of the Competition Act (as amended by section 55(a) of the 2014 Act), where a proposed merger or acquisition falls within a class of merger or acquisition specified in an order made by the Minister for Jobs, Enterprise and Innovation, it must be notified to the Commission 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) of the Competition Act.

This order relates to media mergers and establishes the obligation to notify to the Commission:

(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.

Section 28B of the Competition Act (as inserted by section 74 of the 2014 Act) requires that a media merger which has been notified either to the Commission or to the European Commission must also be notified to the Minister for Communications, Energy and Natural Resources .  The notification to the Minister for Communications, Energy and Natural Resources must be made during the period from

(a)                after the merger has been notified to the Commission or to the European Commission, up until

 

(b)               10 working days from the date on which the Commission makes its final determination (i.e. a Phase 1 clearance, with or without conditions, or a Phase 2 determination where the Commission has not cleared the merger at Phase 1) or from the date on which the European Commission makes its final determination.

For more information on the requirements for notification to the Minister of for Communications, Energy and Natural Resources, contact the Department for Communications, Energy and Natural Resources.

Voluntary Notification

Section 18(3) of the Competition Act (as substituted by section 55(c) of the 2014 Act), provides for the voluntary notification of mergers and acquisitions that are not subject to mandatory notification under section 18(1) of the Competition Act (as substituted by section 55(a) of the 2014 Act).

Timing of Notification to the Commission

In accordance with section 18(1A) of the Competition Act (as inserted by section 55(a) of the 2014 Act), a notification must be made to the Commission before the proposed merger or acquisition is put into effect, and may be made after any of the following applicable events occurs:

(i) 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;

(ii) the undertakings involved demonstrate to the Commission a good faith intention to conclude an agreement or a merger or acquisition is agreed;

(iii) in relation to a scheme of arrangement, a scheme document is posted to shareholders.


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Date Printed: 23 November 2014

© The Competition Authority 2014