The International Comparative Legal Guide To Merger Control 2012 (part 1) - Trade Regulation & Practices

This article appeared in the 2012 edition of The International Comparative Legal Guide to: Merger Control; published by Global Legal Group Ltd, London.

EDITORIAL

Welcome to the eighth edition of The International Comparative Legal Guide to: Merger Control. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of merger control. It is divided into two main sections: Four general chapters. These are designed to provide readers with a comprehensive overview of key issues affecting merger control, particularly from the perspective of a multi-jurisdictional transaction. Country question and answer chapters. These provide a broad overview of common issues in merger control in 54 jurisdictions. All chapters are written by leading merger control lawyers and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editors Nigel Parr and Catherine Hammon of Ashurst LLP, for their invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.co.uk .

1. Relevant Authorities and Legislation

1.1 Who is/are the relevant merger authorty(ies)

The Irish Competition Authority (the "Competition Authority") is responsible for the promotion and enforcement of competition law in Ireland. It is an independent body originally established under the Competition Act, 1991. The workings of the Competition Authority are now governed by the Competition Act, 2002, as amended (the "Competition Act"). Part 3 of the Competition Act, which came into force on 1 January 2003, governs Ireland's merger control regime. The Competition Authority has sole responsibility for non-media mergers and mergers not involving "credit institutions" necessary to maintain the stability of the financial system of the State. As regards media mergers, each of the Competition Authority and Minister for Jobs, Enterprise and Innovation (the "Minister") has a role in respect of media mergers. On 17 September 2011, the Minister for Communications, Energy and Natural Resources (the "Minister for Communications") announced that the Government had approved proposals for new legislation governing media mergers which will transfer responsibility for media mergers to the Minister for Communications. Draft legislation has not yet been published.

As regards mergers involving "credit institutions", in circumstances where the Minister for Finance considers that a merger or acquisition involving a credit institution is necessary to maintain the stability of the financial system in the State, then the power to determine whether or not the merger or acquisition should be approved will lie with the Minister for Finance and not the Competition Authority. Section 7 of the Credit Institutions (Financial Support) Act 2008 (the "Credit Institutions Act") provides that such mergers will be notifiable to the Minister for Finance, rather than the Competition Authority and that such mergers may not be implemented without Ministerial approval.

In early 2012 the Government is to introduce legislation to amalgamate the Competition Authority and the National Consumer Agency. The latter is the statutory body charged with defending consumer rights and interests through, inter alia, the enforcement of consumer law. It is possible therefore, in order to accommodate the National Consumer Agency's objectives, that the "new" Competition Authority may be required to accord consumer welfare greater prominence in the assessment of mergers.

1.2 What is the Merger legislation?

Ireland's merger control regime is governed by Part 3 of the Competition Act 2002 and the Credit Institutions Act 2008.

The Competition Authority has also published a number of helpful guidance notes including "Access to the File in Merger Cases" and "Revised Procedures for the Review of Mergers and Acquisitions".

1.3 Is there any other relevant legislation for foreign mergers?

Irish law contains no foreign investment control legislation.

1.4 Is there any other relevant legislation for mergers in particular sectors?

The acquisition of shares in financial services companies is subject to additional rules under Irish law. Directive 2007/44/EC (the "Directive") has been implemented in Ireland by the European Communities (Assessment of Acquisitions in the Financial Sector) Regulations 2009. These Regulations amend rules contained in the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992, the European Communities (Non- Life Insurance) Framework Regulations 1994, the European Communities (Life Assurance) Framework Regulations 1994, the European Communities (Reinsurance) Regulations 2006, the European Communities (Markets in Financial Instruments) Regulations 2007 and the European Communities (Undertakings for Collective Investments in Transferable Securities) Regulations 2011. The prior consent of the Central Bank of Ireland (the "Central Bank") is required in respect of the direct or indirect acquisition of shares which will result in a person holding more than 10 per cent of the capital or voting shares of such Irish authorised entities, including an (MiFID) investment firm (e.g. stockbroker), a UCITS management company or insurance company. In the case of an Irish authorised credit institution (bank), consent is required for the direct acquisition of 5 per cent or more of the voting rights. The approval of the Central Bank is also required for all such entities once a 10 per cent threshold is exceeded where further acquisitions would result in the holder owning more than 20 per cent, 33 per cent or 50 per cent of the shares in the company. Similar rules apply to "local" brokers and other intermediaries regulated by the Investment Intermediaries Act 1995. Other instances when the prior consent of the Central Bank is sought arise where the holding is less than 10 per cent but where the Central Bank considers it possible to exercise control or a significant amount of influence over the management of the entity in question. Such transactions must not proceed without the approval of the Central Bank and there is a prescribed assessment period as set out in the Directive (broadly 60 working days).

2. Transactions caught by Merger Control Legislation?

2.1 Which types of transaction are caught – in particular, how is the "concept" of control defined?

Under Section 16(1) of the Competition Act, a merger or acquisition is deemed to occur if:

1. two or more undertakings, previously independent of one another, merge;

2. 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;

3. 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 of the business in which that undertaking was engaged immediately before the acquisition; or

4. a joint venture is created which performs, on an indefinite basis, all the functions of an autonomous economic entity.

Tests one, two and four outlined above replicate the tests set out in the European Union Merger Regulation ("EUMR"). The term "control" is defined in Section 16(2) in similar terms to the EUMR, i.e. the ability to exercise "decisive influence" over the activities of an undertaking.

Section 16(3) of the Competition Act provides that "control is acquired by an individual or undertaking if he, she or it:

(a) becomes the holder of the rights or contracts, or entitled to use the other means, referred to in subsection (2) above; or

(b) although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived there from".

Section 16(5) provides that "in determining whether influence of the kind referred to in subsection (2) is capable of being exercised, regard shall be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made".

In interpreting concepts such as "mergers and acquisition", "control" and "decisive influence" in the Competition Act, the Competition Authority is influenced by European Commission ("Commission") practice and decisions. It has expressly indicated that it is happy for notifying parties and their advisers to look for guidance on matters not covered by specific Competition Authority guidance to the Commission's Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings. The Commission's notice on the concept of a concentration sets out the various instances in which a minority interest in an undertaking may constitute control. It provides that a minority shareholder may have the ability to exercise decisive influence over an undertaking where it has certain veto rights, allowing it to veto decisions on issues such as the business plan, major investments, the annual budget, the appointment of senior business people and the strategic commercial behaviour of the business.

2.2 Can an acquisition of a minority shareholding amount to a "merger"?

The acquisition of a minority shareholding can only amount to a "merger" in a situation where that minority interest is sufficient to give the undertaking involved joint or sole control.

2.3 Are joint venture subject to merger control?

Part 3 of the Competition Act applies to full-function joint ventures. Section 16(4) of the Competition Act provides that "the creation of a joint venture to perform, on an indefinite basis, all the functions of an autonomous economic entity shall constitute a merger falling within subsection (1)(b)". In relation to full-function joint ventures, as with other areas outlined above, the Competition Authority is influenced by the Commission's guidance and case law.

2.4 What are the jurisdictional thresholds for applicants of merger control?

In respect of non-media mergers, the financial thresholds which trigger the mandatory obligation to notify are found in Section 18(1)(a) of the Competition Act. Section 18(1)(a) provides that a merger or acquisition is notifiable where, in the most recent financial year:

the worldwide turnover of at least two of the undertakings involved in the transaction is not less than €40 million;
two or more of the undertakings involved in the transaction carry on business in any part of the island of Ireland (i.e. Ireland and Northern Ireland); and
any one of the undertakings involved has turnover in the State (i.e. Ireland) of not less than €40 million.

The treatment of media mergers is set out in response to question 2.7 below.

The Competition Authority has published an amended Notice N/02/003 "Notice in respect of certain terms used in Section 18(1) of the Competition Act 2002" (the "Notice") to clarify the Competition Authority's understanding of the term 'carries on business'. The Competition Authority understands that term as including undertakings that either:

have a physical presence in the island of Ireland and makes sales or supply services to customers in the island of Ireland; or
without having a physical presence in the island of Ireland, have made sales into the island of Ireland of at least €2 million in the most recent financial year.

The concept of "undertakings involved" in the transaction is broadly equivalent to the concept of an "undertaking concerned" under the EUMR, and specifically does not include the vendor.

As part of the ongoing review of the Competition Act, the Competition Authority has sought to have a provision included in the new legislation which would lower the turnover threshold in the State, and possibly abolish the worldwide turnover threshold test. However, there are no indications at present that such changes are likely to be included in the new legislation.

For the purposes of calculating turnover and of assessing whether business is carried on in any part of the island of Ireland, the Competition Authority has regard to the entire group of undertakings to which a party to the transaction belongs. The Competition Authority has clarified that it understands "turnover in the State" to comprise sales made or services supplied to customers within the State. In the case of asset acquisitions, the turnover thresholds are applied to the turnover generated from the assets that are the subject of the acquisition. In relation to calculating turnover, the Competition Authority normally follows the Commission's guidance on calculation of turnover in situations where there has been a significant acquisition or disposal following the end of the most recent financial year.

A very broad interpretation of the concept of the business in which the vendor was engaged immediately prior to the acquisition and of the terms of the asset acquisition test in general has allowed the Competition Authority to consider that the purchase of bare assets may in certain cases amount to a notifiable merger. In Stena/P&O II, Stena purchased P&O's ferry business on the route between Larne (in Northern Ireland) and Fleetwood (in Britain). Stena also purchased two ferries which had been used by P&O on another Irish Sea route and which Stena planned to deploy elsewhere. Although Stena therefore only truly replaced P&O as the operator of the Larne/Fleetwood route, the Competition Authority considered the acquisition of the route together with the acquisition of the two ferries as part of one "business", i.e. the provision of ferry services to and from the island of Ireland – since this was the 'general economic sector' in which the vendor operated. This view allowed it to take into account not only the turnover attributable to Larne/Fleetwood, but also the turnover generated by the two ferries (despite the fact that they would not be run by Stena on the previous P&O route), which when combined satisfied the test for mandatory notification. This broad approach means that the acquisition of assets in Ireland may in certain circumstances give rise to a mandatory notification obligation, even where the assets themselves do not amount to a business in their own right and even where the purchaser will not replace the vendor in the use of those assets as they were employed before the acquisition.

2.5 Does merger control apply in the absence of a substantive overlap?

Yes. The thresholds contained in Section 18 of Part 3 of the Competition Act relate to turnover and to the concept of "carrying on business" in any part of the island of Ireland. Therefore, any merger or acquisition which meets these thresholds must be notified to the Competition Authority, regardless of the existence of an overlap.

2.6 In what circumstance is it likely that transaction between parties outside Ireland ("foreign to foreign" transactions) would be caught by your merger control legislation?

As outlined in question 2.4 above, the Competition Authority published the Notice to clarify its understanding of the term "carries on business". The Competition Authority now understands that term as including undertakings that either:

have a physical presence in the island of Ireland and makes sales or supply services to customers in the island of Ireland; or
without having a physical presence in the island of Ireland, have made sales into the island of Ireland of at least €2 million in the most recent financial year.

A "physical presence" includes having a registered office, subsidiary, branch, representative office or agency on the island of Ireland. The Competition Authority adopted the above interpretation of "carries on business" following a public consultation which highlighted concerns that the previous (more general) test had resulted in a large percentage of foreign-to-foreign mergers (i.e. with limited connection to Ireland) requiring notification in Ireland.

2.7 Please describe any mechanisms whereby the operation of the jurisdiction thresholds may be overriden by other provisions?

Sections 18(1)(b) and 18(5) of the Competition Act provide that the Minister may specify certain classes of mergers or acquisition which must be notified to the Competition Authority regardless of the thresholds set out in Section 18(1)(a). The Minister has done so in relation to media mergers, which are defined in Section 23(10) as "a merger or acquisition in which one or more of the undertakings involved carries on a media business in the State". Therefore, media mergers are treated separately under the Competition Act. In March 2007, the Minister acting on a proposal by the Competition Authority, issued new secondary legislation, S.I. No. 122 of 2007, amending the definition of a media merger for the purposes of the Competition Act.

The definition, which took effect as of May 1, 2007, provides that a "media merger" is a merger or acquisition in which either (a) two or more of the undertakings involved carry on a defined media business in the State, or (b) 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.

A "media business" is defined as: (i) the publication of newspapers or periodicals consisting substantially of news or current affairs; (ii) sound and/or audio broadcasting (except over the Internet); or (iii) the provision of a broadcasting services platform (such as a cable company). The turnover thresholds for notification are disapplied for media mergers, so that they are automatically notifiable regardless of the turnover of the undertakings involved.

The initial notification in respect of a media merger is made to the Competition Authority, which reviews the transaction from a competition perspective, and a copy is sent to the Minister. If the Competition Authority determines at the end of Phase I that the media merger will not result in a substantial lessening of competition, it must inform the Minister, who has a period of ten days in which he may decide, on the basis of specified "public interest" criteria, to direct the Competition Authority to open a Phase II investigation. If the Competition Authority determines at the end of Phase II either to clear the media merger or to clear it subject to conditions, the Minister may within 30 days prohibit the merger or impose new or stricter conditions, again based on the "public interest" criteria. The public interest criteria for media mergers are:

the strength and competitiveness of indigenous media businesses;
the spread of ownership or control of media businesses in the State;
the spread of ownership and control of particular types of media business in the State;
the extent to which the diversity of views prevalent in Irish society are reflected through the activities of the various media businesses in the State; and
the market share of the parties.

If the Competition Authority decides to prohibit a media merger on competition grounds, the Minister cannot permit it. To date no order has been made by the Minister prohibiting a media merger from being put into effect.

In January 2009, the Minister published the Report of the Advisory Group on Media Mergers (the "Report"). We understand that the Government is likely to adopt most of the Report's recommendations. The Advisory Group was established to review the current legislative framework in respect of media mergers. The Report recommends significant changes to the media merger rules under the Act including: (i) the introduction of a new system of notification whereby a separate notification is made to, and a decision required from, the Minister in relation to media mergers (i.e. in parallel with the notification to the Competition Authority); (ii) that a new statutory test be incorporated into the Competition Act to be applied by the Minister in a review of media mergers; (iii) an expanded definition of what constitutes a "media merger" to include undertakings involved in providing print or certain audio visual content over the internet; and (iv) a reduced role for the Competition Authority in the assessment of the public interest aspects of media mergers. As set out in the response to question 1.1 above, the Minister for Communications has indicated that new provisions relating to media mergers will be included in the new Competition Bill. The legislation will put in place a statutory definition of media plurality, referring to both ownership and content, and will provide for an on-going collection and the periodic publication of information, and the use of concrete indicators in relation to media plurality.

Pursuant to the "one-stop shop" principle in the EUMR, the jurisdiction of the Competition Authority may be overridden by the Commission. Conversely, the Competition Authority may request the referral back of a merger which is notifiable to the Commission under the EUMR where the focus of competition occurs almost entirely in Ireland.

To date, the Competition Authority has reviewed just one merger following a successful "request back" under the EUMR. In 2008, the Commission referred the proposed acquisition by Heineken of Scottish & Newcastle's business in Ireland, Beamish and Crawford plc, to the Competition Authority (while approving Heineken's deal to buy other assets and brands of Scottish & Newcastle, in Belgium, Finland, Portugal and the UK). The decision to refer the proposed acquisition followed an application by the Competition Authority under Article 9(2) of the EUMR on the basis that the proposed transaction threatened to significantly affect competition in Irish beer markets.

2.8 Where a merger takes place in stages, what principals are applies in order to identify whether the various stages constitute a single transaction or a series of transactions?

The Act takes account of situations involving a change of control but refers only to the concept of conclusion of a binding agreement or the making of a public offer and requires that a notification be made of a proposal to put a merger or acquisition into effect. The Authority will therefore analyse the transaction to determine when the merger or acquisition occurs. It will have regard to the Commission consolidated Jurisdictional Notice in undertaking that analysis.

3 Notification and its impact on the Transaction Timetable

3.1 Where the jurisdictional thresholds are met, is notification compulsory and is there a deadline for notification?

Yes. Ireland's merger notification regime is mandatory. Mergers coming within the scope of the Competition Act must be notified within one month of the conclusion of a binding agreement or the making of a public bid. At present, merging parties cannot notify until they have concluded an agreement or made a public bid.

As part of the ongoing review of the Competition Act, the Competition Authority has proposed changes to the existing notification system whereby merging parties are able to notify: (i) on the basis of a letter of intent; or (ii) where there has been a public announcement of the intention to make a bid. Sections 4 and 5 of the Competition Act prohibit anti-competitive agreements and abuse of dominance respectively (equivalent at national level to Articles 101 and 102 of the Treaty on the Functioning of the European Union). If a merger is notified to the Competition Authority and cleared by it, it is immune from a subsequent challenge by the Competition Authority or any third party under Sections 4 and 5. Where a transaction does not meet the relevant turnover thresholds (set out above), Sections 4 and 5 could potentially apply. The Competition Act therefore provides for a voluntary merger notification system for mergers which do not meet the thresholds but which may raise competition issues. Once notified, voluntary notifications are dealt with in the same way as mandatory notifications.

The Competition Authority initially anticipated a large number of voluntary notifications. In practice, this has not materialised. In an attempt to stimulate notifications, the Competition Authority published a Notice on 30 September 2003 (N/03/001) stating its policy with regard to such transactions. In this Notice the Competition Authority stated that its policy is to investigate and to seek to prevent implementation of non-notifiable mergers which may give rise to a substantial lessening of competition. Where such a merger has already been implemented, the Competition Authority may seek to have it reversed. Where such a merger has not been implemented, but where the parties indicate that they do not intend to notify voluntarily, the Competition Authority may open an investigation under Section 4 or 5 and seek an undertaking from the parties not to implement for a certain period or, if necessary, seek a court injunction restraining implementation. The applicable penalties in respect of breaches of Section 4 or 5 have been significantly increased in the Competition (Amendment) Bill 2011, which was published in September 2011. The Bill was introduced further to the Government's commitments in the EU/IMF Programme of Financial Support for Ireland to strengthen the enforcement of competition law in this jurisdiction.

3.2 Please describe any exceptions where, even though the jurisdictional threshold are met, clearance is not required

No such exceptions exist in Ireland.

3.3 Where a merger technically requires notification a clearance, what are the risks of not filing? Are there any formal sanctions?

Failure to notify a notifiable merger is a criminal offence punishable by fines and the implementation of such a merger, in the absence of Competition Authority approval, is void. Section 18(9) of the Competition Act provides that a person in control of an undertaking which has failed to notify the Competition Authority (or has failed to supply required information) within the specified period shall be guilty of an offence and may be liable to fines of up to €3,000 on summary conviction and up to €250,000 on conviction on indictment. Section 18(10) provides for maximum daily penalties of €25,000 for each day that an indictable offence continues after the date of its first occurrence, and €300 a day for a summary offence.

Liability attaches to the "person in control" of an undertaking, which is defined in Section 18(11) as, in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention. The Competition Authority examined failure to notify a transaction within the prescribed time period in Radio 2000 Limited/Newstalk 106. The Competition Authority stated that it found insufficient evidence to seek a criminal penalty, as it was not apparent that any officer of the notifying parties "knowingly or wilfully authorised or permitted the contravention".

In the context of forthcoming legislation to amend the Competition Act, the Competition Authority has indicated that it would like to have the power to seek civil penalties for failure to notify, however it is not clear whether such changes will be introduced due to certain constitutional difficulties involved in creating substantial civil sanctions.

3.4 Is it possible to carve out local completion of a merger to avoid global completion?

It is not usually possible to carve out local completion of a merger to avoid delaying global completion.

3.5 At what stage in the transaction timetable can the notification be filed?

The obligation to make a notification to the Competition Authority is not triggered until the conclusion of a binding agreement or making of a public bid, at which point the parties have one calendar month in which to notify. A notification will not be accepted prior to the conclusion of a binding agreement, e.g. on the basis of a "memorandum of understanding" or a "heads of agreement". In its submissions in respect of the new legislation governing competition law, the Competition Authority has proposed changes to the existing notification system whereby merging parties are able to notify: (i) on the basis of a letter of intent; or (ii) where there has been a public announcement of the intention to make a bid. There is no indication as yet as to whether these proposals will be incorporated into the new legislation.

3.6 What is the timetable for scrutiny of the merger by the merger authority? What are the main stages in the regulatory process? Can the timetable be suspended by the authority?

The Competition Act provides for a two-phase examination process for mergers. In Phase I the Competition Authority has an initial period of one month in which to decide whether to allow the merger to be put into effect on the grounds that it would not substantially lessen competition, or to carry out a more detailed investigation. Most Phase I cases take close to the full one-month period, although the Competition Authority is prepared to consider requests for an accelerated investigation period in exceptional cases. The onemonth period runs from the date of notification. If the Competition Authority makes a formal request for information, the timeframe is suspended and the clock starts de novo on receipt by the Competition Authority of the information requested. In practice, the Competition Authority frequently affords the parties an opportunity to respond to an informal information request, before "stopping the clock" by making a formal request for information. Failure to comply with a formal request within the time period specified by the Competition Authority is a criminal offence (see question 3.3 above). The one-month period may also be extended to forty-five days where the parties and the Competition Authority negotiate undertakings or commitments to secure "measures which would ameliorate the effects of the merger".

If, at the end of Phase I, the Competition Authority is unable to form the view that the proposed merger will not result in a substantial lessening of competition ("SLC"), then a Phase II investigation is initiated. In such cases, the Competition Authority has an additional three months (i.e. a total of four months from notification or receipt of response to a formal information request) within which to further investigate the merger and decide whether it should be cleared, cleared subject to conditions, or blocked.

A Phase II investigation, of its nature, involves a more detailed examination by the Competition Authority of the merger. Notifying parties are given an initial period of 21 days to make additional submissions to the Competition Authority. The Revised Merger Procedures, which came into effect on 1 March 2006, provide that the Competition Authority may change this time limit by notice on its website in individual cases, if the circumstances so require. Parties are also likely to receive detailed information requests from the Competition Authority (formal information requests have no effect on timing in Phase II), and may be requested to attend meetings with the Competition Authority to allow the Competition Authority to gather additional information by asking questions directly to the parties. Depending on the case and the industry concerned, the Competition Authority may also request (or the parties may wish to offer) a site visit.

If, after eight weeks from the opening of the Phase II investigation, the Competition Authority is satisfied on the basis of all submissions and information it has received that the result of the merger will not be to substantially lessen competition, it may at that stage issue a clearance decision or a clearance subject to conditions.

Otherwise, the Competition Authority (within an eight-week period or shortly thereafter) furnishes a written assessment to the notifying parties, setting out its competition concerns. The written assessment is a reasonably lengthy document which outlines the initial conclusions of the Competition Authority on the relevant product and geographic markets, its competitive assessment of those markets, and the key factors which it believes may give rise to a SLC. It also summarises the sources and evidence relied on by the Competition Authority in forming its initial views including information provided by the parties, market enquiries, and third party submissions.

At the same time, the notifying parties are given access to the Competition Authority's file of documents in accordance with the criteria set out in its publication regarding the Procedures for Access to the File in Merger Cases. The Competition Authority may withhold access to or delete information from certain documents either to protect confidentiality (i.e. to protect the identity of a third party or confidential business information) or because the document is stated to be an "internal document of the Competition Authority". An "internal document" is one related to discussions or communications within the Competition Authority itself (e.g. between the staff and the members), between the Competition Authority and other government departments or bodies, or between the Competition Authority and other competition authorities (for example, the Commission or another national authority). The Competition Authority has shown some reluctance to provide comprehensive access to all relevant documents, with the risk that the merging parties may be left with an incomplete picture of the Competition Authority's investigation.

The notifying parties must respond to the Competition Authority's written assessment within three weeks of receipt if they contest the issues raised by the Competition Authority. As soon as possible after furnishing the assessment, and at latest ten weeks after the determination to open the Phase II investigation, the notifying parties may request the opportunity to make an oral submission. Third parties may also be invited to attend a separate oral hearing. However, the Revised Merger Procedures set out some changes to the Competition Authority's practice in relation to oral hearings. The Revised Merger Procedures envisage that all-party hearings will no longer take place, but notifying parties and interested third parties may be entitled to make oral submissions in Phase II.

The final determination of the Competition Authority (i.e. that the merger may be put into effect, may be put into effect subject to conditions, or may not be put into effect), must be communicated to the parties no later than twelve weeks from the opening of the Phase II investigation. The new competition legislation may extend timeframes in line with the Competition Authority's request for: (i) the extension of the Phase II consideration period from 3 months to 4 months; and (ii) the introduction of a "stop the clock" provision equivalent to that under Phase I.

Additional procedures apply in respect of media mergers. If the Competition Authority clears a media merger at the end of Phase I, the Minister may, within 10 days and under Section 22 of the Act, direct the Competition Authority to carry out a Phase II investigation. If, on completion of a Phase II investigation the Competition Authority clears a media merger (with or without conditions), the Minister may, within 30 days and having regard to the relevant criteria as defined in Section 23(10) (see above), order that the media merger be put into effect (with or without conditions) or may not be put into effect. Such an order of the Minister is then placed before each House of the Oireachtas (the Irish Parliament) and, if a resolution annulling the order is passed by either House within 21 days, the order is annulled. If the order is annulled, the Competition Authority's Phase II determination has effect.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Ireland: The International Comparative Legal Guide To Merger Control 2012 (part 1)