Dealmakers in Ireland will need to familiarise themselves with new powers that are soon to become available to the Competition and Consumer Protection Commission ("CCPC") when they examine mergers and acquisitions. On 27 September 2023, the Competition (Amendment) Act 2022 (the "Act") will come into operation, significantly enhancing the CCPC's enforcement toolkit in a few key ways:
Irish Merger Control Rules Strengthened under New Legislation
Under the Act the CCPC will be able to require the notification of transactions that do not trigger the CCPC's turnover thresholds and are not otherwise mandatorily notifiable ("Below-Threshold Transactions"), where the CCPC is of the opinion that such transactions "may have an effect on competition in markets for goods or services in the State".
The introduction of this new power will mean that parties will need to consider the substantive competitive effects of Below-Threshold Transactions to assess the risk of the transaction being 'called in' by the CCPC and consequently whether a voluntary notification should be made to the CCPC to negate that risk.
The Act also empowers the CCPC to impose 'interim measures' on parties to a mandatorily notifiable or Below-Threshold Transaction "where it considers it appropriate to do so due to the risk that the merger may have an effect on competition in any markets for goods or services in the State."
Such 'interim measures' may include a requirement on the parties either:
- to refrain from taking any step towards putting the transaction into effect or from further putting it into effect, or
- to take such actions for the purpose of mitigating the impact of any step already taken towards putting the transaction into effect.
A failure to comply with an interim measure imposed by the CCPC is an offence attracting fines of up to €250,000.
The CCPC will now also be able to require 3rd parties to provide information relevant to the CCPC’s consideration of a transaction, within a specified time period. Previously, the CCPC was only allowed to issue such requirements for information ("RFIs") to the 'undertakings involved' in a transaction.
One of the major new powers available to the CCPC under the Act is the power to determine that a transaction should be unwound or dissolved, or where that is not possible, to determine that the parties shall take such steps as are appropriate to achieve restoration as far as practicable of the situation pre-merger.
This power may be exercised by the CCPC on completion of its 'Phase 2' merger review period, where the transaction has already been put into effect, and where the CCPC finds that the result of the transaction will be to substantially lessen competition for markets for goods and services in the State.
The Act makes it an offense to put into effect a mandatorily notifiable transaction or a Below-Threshold Transaction which has been 'called in' by the CCPC, prior to clearance by the CCPC or prior to the CCPC's statutory merger review period having elapsed. Fines of up to €250,000 may be imposed on those found guilty of this offence. Previously the offence of 'gun jumping' in Ireland solely involved a failure to notify the CCPC of a notifiable transaction.
Furthermore, the Act now allows the CCPC to take summary prosecutions for gun jumping offences. Previously, the offence of gun jumping was prosecuted on a summary basis or on indictment by the Director of Public Prosecutions ("DPP") only.
The strengthening of Ireland's merger control regime under the Act will have a noticeable impact on deals in Ireland in several ways.
- Dealmakers will clearly need to exercise greater caution when considering whether they are required to notify a transaction to the CCPC – It will not be sufficient to merely confirm that the CCPC's turnover thresholds are not met given the CCPC's new powers to 'call in' Below-Threshold Transactions, to impose 'interim measures' and to unwind or dissolve transactions.
- Furthermore, 3rd parties (such as competitors or customers of parties to transactions) may now be issued with RFIs from the CCPC to which they will be obliged to respond.
- Finally, the enhancement of the CCPC's 'gun-jumping' enforcement powers will enable the CCPC to more readily instigate gun-jumping prosecutions.
The Act also supplements the CCPC's investigative and enforcement powers with respect to other competition law offences. This will be the subject of a separate article.
For further information on the Act and Irish merger control please contact Eoghan Ó hArgáin, Head of EU, Competition & Procurement in Addleshaw Goddard (Ireland) LLP.