Getting the Deal Through:  Merger Control 2014 - Ireland

16 September 2013

The following article was written by Niall Collins, Head of EU & Antitrust, Mason Hayes & Curran and Tony Burke, Partner, Mason Hayes & Curran for publication in the Getting the Deal Through - Merger Control 2014. To view this article as it originally appeared, please download the pdf document to the right. © Copyright Getting the Deal Through 2013. All rights reserved.

Legislation and jurisdiction

1  What is the relevant legislation and who enforces it?

The Competition Act 2002 (as amended) (the Act) sets out the statutory basis for competition and merger control law in Ireland. The Act entered into force in January 2003. Many of the concepts used in part 3 of the Act are based on and applied by analogy with the EU merger control regime. There are also a number of guidance documents on the interpretation of certain terms used in part 3 of the Act and on various aspects of the merger review process.

The Competition Authority (the Authority) is the state body responsible for the enforcement of merger control law in Ireland. The Authority has sole responsibility for non-media mergers and shared responsibility with the minister for jobs, enterprise and innovation in relation to media mergers. The minister for finance may intervene in a merger or acquisition involving a credit institution where the transaction is necessary to maintain the stability of the financial system in the state and there would be a serious threat to such stability if it did not proceed. (Please see the response to question 8 for further information on media mergers and transactions involving credit institutions.)

2 What kinds of mergers are caught?

Section 16(1) of the Act provides that a merger or acquisition occurs if:

  • two or more undertakings, previously independent of one another, merge;
  • 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
  • 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 to substantially 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.

Mergers and acquisitions (mergers) that meet the turnover thresholds set out in section 18(1) of the Act are subject to mandatory notification to the Authority (please see question 5 for further details on turnover thresholds). Where these requirements are not met, mergers and acquisitions may be notified to the Authority on a voluntary basis.

3 What types of joint ventures are caught?

Section 16(4) of the Act provides that the creation of a joint venture which performs, on an indefinite basis, all the functions of an autonomous economic entity shall constitute a merger for the purposes of the Act.

4  Is there a definition of ‘control’ and are minority and other interests less than control caught?

For the purposes of the Act, ‘control’ will arise where decisive influence can be exercised in relation to the activities of the undertaking, whether such influence is conferred by the  acquisition of securities or contracts, or a combination thereof, or by any other means. In particular, this will be demonstrated by ownership of assets, or even rights to use such assets, or by rights or contracts that enable decisive influence to be exercised over the composition, voting or decisions of the organs of an undertaking.

The definition of ‘control’ in the Act is defined in similar terms to the test under the European Union Merger Regulation (EUMR) and the Authority typically follows the practice and decisions of the European Commission (the Commission) in interpreting the meaning of ‘control’ and ‘decisive influence’.

Related Expertise

Competition & Antitrust

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