The Department of Enterprise, Trade and Employment has recently published the Screening of Third Country Transactions Bill 2022 (the Bill).
The Bill implements in Ireland the European Regulation 2019452 of 2019 which established a framework for the screening of foreign direct investment into the European Union.
The Bill is at present making its way through the legislative process. As it is a Government bill it is very much likely to be enacted as published.
The essence of the Bill is that a transaction is notifiable where it satisfies each of the following criteria:
- A third country undertaking or a person connected with such an undertaking is a party to the transaction.
- The third country undertaking or person will move from holding:
- less than 25% of the shares or voting rights in the Irish entity/business to more than 25%; or
- 50% or less of such shares or voting rights to more than 50%.
- The value of the transaction is equal to or greater than €2m.
- The transaction directly or indirectly relates to or impacts upon one or more of the following:
- Irish critical infrastructure whether physical or virtual;
- land and real estate crucial for the use of such infrastructure;
- critical technologies and dual use items;
- supply of critical inputs including energy, raw materials and food stuffs;
- access to sensitive information, including personal data or the ability to control such information;
- the freedom and pluralism of the media.
A transaction is defined as including any transaction, acquisition, agreement or other economic activity relating to:
- a change in control of an asset in the State; or
- the acquisition of all or part of or any interest in an undertaking in the State.
An undertaking is defined as including any person, including the body corporate (a partnership or other unincorporated body of persons) engaged for gain in the production, supply or distribution of goods, the provision of services, the making or holding of investments or the current out of any economic activity.
THIRD COUNTRIES AND RELATED CONCEPTS
A third country is any state or territory other than:
- a member state of the European Union;
- a state or territory which is part of the European economic area; or
Both the United Kingdom and the United States fall into the category of third country.
Third Country Undertakings
A third country undertaking is an undertaking that is:
- constituted or otherwise governed by the laws of a third country; or
- controlled by at least one director, partner, member or other person who is a national of or ordinarily resident in a third country; or
- is a third country national.
Third Country Nationals
A third country national is defined as:
- a natural person who is ordinarily resident in a third country; or
- an unincorporated group or partnership of natural persons at least one of whom is ordinarily resident in a third country.
REQUIREMENT TO NOTIFY TRANSACTIONS
Where a transaction is notifiable, the parties to the transaction are obliged to notify the Minister not less than 10 days before the date on which the transaction is to be completed.
The Bill sets out detailed categories of the information required to be included in the notification.
FAILURE TO NOTIFY
Parties who fail to notify a notifiable transaction will commit an offence and will be liable to fines of up to €4,000,000 and /or a term of imprisonment.
Additionally, where a party to a notifiable transaction fails to notify the transaction before it is completed then the transaction is deemed to be subject to a screening decision of the Minister that the transaction affects or would be likely to affect the security or public order of the State and such a screening decision shall be deemed to have been made on the day before the date on which the transaction is completed.
As to the Minister's powers where he decides that a transaction affects or would be likely to affect the security or public order of the State see below.
MINISTERIAL CONSIDERATION OF TRANSACTIONS
In considering a transaction under the legislation, the Minister is to consider whether or not the transaction affects or would be likely to affect the security or public order of the State.
The matters which the Bill directs the Minister to consider include:
- whether or not any party to the transaction is controlled by a government of a third country;
- whether or not there is a serious risk of a party to the transaction engaging in illegal or criminal activities;
- whether or not the transaction presents or is likely to present a person with an opportunity to undertake actions disruptive or destructive to persons in the State;
- whether or not the transaction will result in persons acquiring access to information, data, systems, technologies or assets matter of general important to security or public order of the State; and
- the extent to which the transaction affects or will be likely to affect the security or public order of another Member State or of the European Union.
The Minister is required to make a decision within 90 days of receiving the notification which 90 days can be extended to 135. If further information is required by the Minister this timetable is paused until the same is provided.
The Bill provides that where the Minister, having been notified, makes a decision that the transaction affects or would be likely to affect the security or public order of the State, then he may direct the parties to the transaction to take such actions as he may specify for the purpose of protecting the security or public order of the state.
The Minister's powers expressly include the right to require parties to the transaction, whether jointly or separately to do or not to do things including but not limited to requiring a party to sell or divest itself of any matter including business, assets (tangible or intangible shares, real property or intellectual property).
The consequence of this is that a party to a notifiable transaction who proceeds without a "no action letter" is at risk of being directed to unwind the transaction or the purchaser might separately be ordered to divest itself of the transaction without the same being unwound.
APPEALING A DECISION OF THE MINISTER
The Bill provides for a panel of a judicators to whom a disappointed party can appeal a decision of the minister precluding the transaction.
There is a further right of recourse to the High Court but only on matters of law.
CALL IN RIGHTS
The Minister is given call-in rights.
In respect of notifiable transactions, the Minister's power to call-in runs until five years from the date on which a non-notified transaction is completed or, if later, six months from the date on which the Minister first became aware of the transaction.
The Minister's call-in rights extend to transactions which are non-notifiable. However, in respect of those the call-in rights will expire within fifteen months of the transaction having been completed.
With regard to a transaction completed before the Bill becomes law the Minister will be permitted to call it in but only where completion occurred 15 months or less before the call in power comes into operation.
Eoghan Ó hArgáin
Partner & Head of EU, Competition & Procurement (Ireland)