Media Mergers

2014 Act

The 2014 Act amends the provisions dealing with mergers and acquisitions including an extension of the definition of individuals, an amendment to provide that goodwill is included in the meaning of the term ‘‘asset’’ for the purposes of the Part and amendment to the situations where a merger or acquisition is not deemed to have occurred.

There are special provisions which deal with Mergers and Acquisitions relating to media mergers including for example the definition of ‘‘carries on a media business in the State’’, ‘‘plurality of the media’’, ‘‘media business’’, ‘‘diversity of content’’, ‘‘diversity of ownership’’, ‘‘media merger’’ and ‘‘relevant criteria’’ used.

Notification

The Minister for Communications must be notified in writing by the undertakings of the proposal to put the media merger or acquisitioninto effect and sets out the process associated with such procedures.

The notification must be made on or before the relevant date. The notifying parties must furnish full information and any changes to that information on all circumstances in relation to the media merger concerned that might impair plurality of the media in the State.

The CCPC must notify the Minister for Communications, Energy and Natural Resources of its determination on the media merger notification: in the case of a media merger notified to the EU Commission, the undertaking(s) concerned must notify the Minister for Communications, Energy and Natural Resources of its determination. There are  offences for failure to notify.

A merger shall be deemed void if it has been put into effect before the Minister for Communications, Energy and Natural Resources makes a determination or if it has not been put into effect within 12 months of the determination being made. The Minister must inform the undertakings within 30 working days (or 45 working days if further proposals are submitted by the undertakings involved) of the notification to him or her of his or her determination to clear, to clear with conditions or to proceed to request the Broadcasting Authority of Ireland now the Media Commission (BAI) to carry out an investigation.

Decision Process

The Acct  sets out the information the Minister shall have regard to in making a determination. The Minister may enter into discussion with the undertakings with a view  to gaining certain commitments that protects media plurality in the State. The Minister must publish a statement of the reasons for his or her making a determination on the date on which the determination is made.

There is provisions for the undertaking of a full media merger investigation. The 2014 Act sets out the process and the criteria to be followed in cases where the Minister for Communications, Energy and Natural Resources has made a determination that such an investigation is warranted. The BAI will be requested by the Minister to undertake such an investigation, taking into account factors set out

The BAI must cause a copy of the request to be published on its website, must invite submissions and must cause a copy of the request to be sent to the relevant Oireachtas Committee inviting a submission from it within a specified time period. The BAI is allowed to enter into discussions with the undertakings involved with a view to identifying measures which would ameliorate any effects of the media merger on plurality of the media in the State and it must provide its draft report and draft recommendation to the undertakings involved.

The BAI has 80 working days to report back to the Minister including a recommendation on whether the media merger should be put into effect with or without conditions or should not be put into effect on foot of its investigation. There is consultation with the undertakings concerned on the draft report and recommendations.

Advisory Panel

The Minister for Communications, Energy and Natural Resources to establish an Advisory Panel id to provide its opinion to the BAI on the application of the relevant criteria to the media merger in question once it becomes a full media merger investigation. The Panel should consist of between 3 and 5 persons of requisite experience appointed by the Minister and those persons must not be a member of the  Houses of the Oireachtas, European Parliament or a Local Authority. Neither should they have a beneficial interest in any matter which is to be considered by the Advisory Panel.

The Panel must produce a report on the relevant criteria within 20 working days from the date of the request and must provide clarification of its opinion in writing if requested by the Minister for Communications, Energy and Natural Resources. Once the Minister makes a determination under the Panel will become dissolved.

Determination

The Minister for Communications,Energy and Natural Resources is to make a determination after a full investigation. The Minister must make his or her determination on whether the media merger may be put into effect, may not be put into effect or may be put into effect, subject to the conditions specified in the determination being complied with within 20 working days of receiving the report and recommendation from the BAI.

The Act sets out the information the Minster must have regard to including submissions provided to him or her and to the BAI or by the relevant Oireachtas Committee. It also provides that the Minister must supply the undertakings with a copy of the determination and lists which aspects of the determination the Minister may publish pre and post correspondence with the undertakings involved.

There is a review of conditions in any determination within 40 days from the date of notification where all undertakings involved in the media merger are of the opinion that the market conditions applicable to the merger have substantially changed since the date of the BAI report to the Minister for Communications, Energy and Natural Resources. It includes provision that the Minister may, within 40 working days, with the consent of all of the undertakings, amend or revoke in writing one or more conditions made in the original determination after the parties have sent a formal request to review the determination.

Enforcement

There is provision for the enforcement of the terms of a determination. It allows the High Court to grant an injunction to enforce compliance on the motion of the Minister. It does not affect the right of the Minister to bring other proceedings to enforce compliance. It lays down the penalties for non-compliance and provides that a person guilty of an offence shall be liable on summary conviction to a class A fine or to imprisonment for a term not exceeding 6 months or both, or on conviction on indictment, to a fine not exceeding €10,000 or imprisonment for a term not exceeding 2 years or both.

Any person who aids another person in any way to commit an offence, shall be guilty of an offence and be liable for the penalties set out where it is proven that an offence was committed by a person while acting on behalf of an incorporated or unincorporated body of persons, that person shall be guilty of an offence. It sets out daily fines for the continuation of an offence. The Minister may bring summary proceedings in relation to an offence.

Various

There are  procedures for granting leave to be granted for judicial review for any determination made by the Minister for Communications, Energy and Natural Resources.

The BAI may charge fees to recover some or all of the costs incurred by it during a full investigation of a media merger that is requested by the Minister for Communications, Energy and Natural Resources.

The Minister may issue guidelines to assist undertakings involved in media mergers in knowing how the Minister would, in general, apply the relevant criteria. Before issuing guidelines, the Minister must publish draft guidelines on the internet and allow 30 working days for stakeholder consultation.

Within one year of the commencement of the Section, the BAI must publish a report on the operation of media in the State and such a report must be updated every three years thereafter. The Minister must cause a copy of the report to be laid before each House of the Oireachtas.