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 (2002 Act) (as substituted by section 55(a) of the Competition and Consumer Protection Act 2014 (2014 Act)), are subject to mandatory notification to the CCPC. When these requirements are not met, mergers or acquisitions can be notified to the CCPC on a voluntary basis in accordance with section 18(3) of the 2002 Act (as substituted by section 55(c) of the 2014 Act).
Definition of a merger or acquisition
According to section 16(1) of the 2002 Act (as amended by section 53 of the 2014 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, 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 2002 Act (as substituted by section 55(a) of the 2014 Act), which 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
However, the following exceptions to the general rule apply:
Media mergers
Under section 18(1)(b) of the 2002 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 Business, Enterprise and Innovation, it must be notified to the CCPC 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 2002 Act.
This order relates to media mergers and establishes the obligation to notify to the CCPC:
- mergers or acquisitions in which two or more of the undertakings involved carry on a media business in the State, and
- 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 2002 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 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 (i.e., a Phase 1 clearance, with or without commitments, or a Phase 2 determination where the CCPC has not cleared the merger at Phase 1) or from the date on which the European Commission makes its final determination.
More information on the requirements for notification to the Minister of for Communications, Energy and Natural Resources, is available through the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media.
Voluntary notification
Section 18(3) of the 2002 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 2002 Act (as substituted by section 55(a) of the 2014 Act).
Timing of notification to the CCPC
In accordance with section 18(1A) of the 2002 Act (as inserted by section 55(a) of the 2014 Act), a notification must be made to the CCPC before the proposed merger or acquisition is put into effect, and may be made after any of the following applicable events 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 demonstrate to the CCPC a good faith intention to conclude an agreement or a merger or acquisition is agreed
- in relation to a scheme of arrangement, a scheme document is posted to shareholders
