When to notify

Some mergers and acquisitions must be notified to the CCPC. These include those involving companies that satisfy certain financial thresholds. These financial thresholds are set out in section 18(1) of the Competition Act 2002, as amended (the Act). Mergers and acquisitions that meet the criteria below are subject to mandatory notification.

Mergers and acquisitions that do not meet the financial thresholds may not be subject to mandatory notification. However, they can be notified to the CCPC on a voluntary basis, in accordance with section 18(3) of the Act. Also, the CCPC may require a merger or and acquisition to be notified when the merger or acquisition may, in the opinion of the CCPC, have an effect on competition in a market for goods or services in the State.

Definition of a merger or acquisition

According to section 16(1) of the Act, a merger or acquisition occurs if:

two or more undertakings, previously independent of one another, merge, or
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
the acquisition of part of an undertaking (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 (with ‘assets’ capable of including goodwill), where the turnover generated from the assets is connected to the State

Mandatory notification – financial thresholds

The general rule for mandatory notification is found in section 18(1)(a) of the Act. This provides that a notification must be made to the CCPC if, in the most recent financial year

the aggregate turnover in the State of the undertakings involved is not less than €60,000,000, and,
the turnover in the State of each of two or more of the undertakings involved is not less than €10,000,000

The following exceptions to the general rule apply:

Media mergers

The Minister for Enterprise, Trade and Employment can specify a class of merger or acquisition in an order. A proposed merger or acquisition that falls within a specified order must be notified to the CCPC, regardless of the turnover of the undertakings involved. This is under section 18(1)(b) of the Act. 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 Act.

This order relates to media mergers and establishes an obligation to notify mergers and acquisitions to the CCPC in which:

two or more of the undertakings involved carry on a media business in the State, or
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 Act (as inserted by section 74 of the 2014 Act) requires that a media merger which has been notified either to the CCPC or to the European Commission must also be notified to the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media.

The notification to the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media must be made within 10 working days from the date on which the CCPC makes its final determination, or from the date on which the European Commission makes its final determination.

More information on the notification can be found on the website of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media.

Retrospective voluntary notification

Section 18(3) of the Act provides for voluntarily notifying mergers and acquisitions that are not subject to mandatory notification under section 18(1) of the Act.

Requirement to notify

Section 18A(2) of the Act gives the CCPC the power to require any merger or acquisition that:

does not satisfy the financial thresholds, and
has not been voluntarily notified

to be notified to the CCPC. This is if the CCPC is of the opinion that the merger or acquisition may have an effect on competition in any market for goods or services in the State.

Timing of notification to the CCPC

A notification must be made to the CCPC before the proposed merger or acquisition is put into effect. This is in accordance with section 18(1A) of the Act. It may be made after any of the following occurs:

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
the undertakings involved show to the CCPC a good faith intention to conclude an agreement or a merger or acquisition is agreed, or
in relation to a scheme of arrangement, a scheme document is posted to shareholders

Interim measures

Under section 18B(1) of the Act, the CCPC may impose interim measures on one or more undertakings involved in a merger or acquisition. The CCPC can do this if it considers it appropriate to do so. It may be appropriate due to the risk that the merger or acquisition may have an effect on competition in any market for goods or services in the State.

The interim measures may require an undertaking:

not to take any step towards putting the merger or acquisition into effect, or
to take actions to mitigate the impact of any step already taken by such undertaking