Mergers falling within certain thresholds and further classes of mergers designated by the Minister are subject to notification. Media mergers are subject to special requirements due to the special public interest in the diversity of ownership in the media.
In the context of the financial crisis, mergers involving credit institutions were required to be notified to the Minister for Finance rather than the Competition Authority. Where the Minister for Finance, after consultation with the Central Bank, is of the opinion that the merger or acquisition is necessary to ensure the financial system of the State and that there would be a serious threat to the stability of that system if the merger did not proceed, then the Minister for Finance may approve the merger.
The legislation in respect of the stabilisation of credit institutions provides that the general merger notification requirements do not apply to certain key steps in the appointment of special managers to credit institutions and related acquisition and disposal of assets and transfers. See generally the sections on credit institution stabilisation legislation.
The threshold levels under the EU Concentration (mergers) regulations are as follows;
- the combined aggregate worldwide turnover of all undertakings is more than €5,000,000,000;
- the aggregate EU-wide turnover of each of at least two of the undertakings is more than €250,000,000 unless each of the undertakings concerned makes more than two-thirds of its aggregate EU-wide turnover within a single EU state.
If the above thresholds are not exceeded, there may still be an EU dimension where each of the following criteria is met
- the combined aggregate turnover worldwide is more than €2,500,000,000;
- in each of at least three member states, the combined aggregate turnover is more than €100,000,000
- in each of at least three member states, the aggregate turnover of at least two of the undertakings is more than €25,000,000 and
- the aggregate EU turnover of each of at least two of the undertakings concerned is more than €100,000,000 unless each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within the same EU state.
EU v National
National states may not apply domestic mergers legislation to mergers with a Community dimension. However, the exclusive competence of the Commission does not prejudice the certain investigative rights of the state.
This includes the power to take measures to protect legitimate interests other than those covered by competition legislation and which are compatible with general principles of EU law. This includes prudential rules, public security and the plurality of the media. This must not be done on a non-discriminatory basis and must be proportionate.
The above thresholds apply to undertakings involved in the merger. The undertaking refers to the entire group. Each of two or more of the undertakings involved in the merger must carry on business in the Island of Ireland and the turnover in the State of any one of the undertakings involved must be at least €40 million.
The worldwide turnover of each of two or more undertakings must be €40 million. The figures are measures with reference to the most recent financial years accounts.
A Competition Authority notice provides that in relation to the acquisition of part of an undertaking, the turnover of the part only, is taken into account from the vendor’s perspective.
Where there is an acquisition of control of an entire business, the undertakings concerned are the undertaking being acquired and the acquiring undertaking. Where it is acquired in a group, the undertakings are the target undertaking and acquiring subsidiary if this is not merely an acquisition vehicle. The selling entity is not part, by reason only of being the seller of shares or other assets.
The turnover of all undertakings with which the undertaking has the links set out in the EU regulation, is included in the threshold. Accordingly, a group may be a single economic unit so that different companies in the same group may be aggregated.
Under the EU Regulation, previous mergers within two years involving the same parties must be notified or renotified with the most recent transaction if each constitutes a merger and if the thresholds are met, whether for one or more of the transactions when taken together or collectively.
Joint Control & Public Sector
Where the acquisition arises by reason of a change from joint control to single control, the entities are the acquiring shareholder and the former joint venture. The exiting shareholder is not an undertaking for this purpose. Where a joint venture is terminated and split, there may be two acquisitions which are considered separately.
Where an acquisition is undertaken by a full function joint venture which operates in the market, the joint venture and the target undertaking are the undertakings concerned. Their parents are excluded. Where, however, it is the mere vehicle, the parents are included.
Public sector undertakings are considered with reference to the economic unit with independent power of decision, irrespective of the manner in which it is constituted or held. Where the state undertaking is not controlled or coordinated with other undertakings, it is treated independently.
The requirement to carry on business in the Island of Ireland requires a physical presence which may be by way of a registered office, establishment or branch. It must make supplies and sales to consumers on the Island of Ireland or have made sales on the Island of Ireland of at least €2,000,000 in the last financial year. In addition to the requirement to carry on business in the Island of Ireland, it is also required that there be the requisite turnover within the State.
For the purpose of calculation of turnover and considering whether a business is carried out by any party on the Island of Ireland, the undertaking refers to the entire group. Turnover refers to sales and services supplied. VAT and excise duty do not count in the calculation.
Sales are based on the ordinary activities of the undertaking. Turnover from intergroup sales is excluded under the EU regulation.
The figures are those from the most recent financial year. Reference is usually made to the most recent audited annual financial accounts required to be prepared by law. Under the EU regulation, there is provision for certain adjustments to the accounts in the calculation of the sums.
The turnover test looks at the turnover in the State and in other relevant jurisdictions. This comprises goods and services sold or provided to customers in the State or in the EU, as the case may be. In the case of goods, the relevant place is where they are delivered.
More complex distribution systems are subject to special rules. In the case of services, the relevant place is where the service is provided, either by the service provider travelling to the customer or by the customer travelling to the service provider. Where neither travels, the turnover is at the location of the purchaser.
The EU rules have special provision for turnover of financial institutions, including credit institutions and insurance companies. In the case of profits and operating income, the branch or division where it is established is the relevant location. In the case of interest and other financial income, the relevant branch or establishment is that which receives the income.
The notification must be made within one month after the conclusion of the agreement or the making of the public bid. The agreement is deemed concluded for the purpose of notification, where it would result in a merger or acquisition if implemented.
An agreement may be concluded notwithstanding that certain conditions remain outstanding. It appears that a legally binding agreement is required, as opposed to heads of terms and other nonbinding arrangements. In practice, the agreement will be made conditional on merger approval.
Completion of the agreement prior to competition authority approval or the relevant expiry dates is impermissible. Completion may include the taking of significant steps towards implementation and completion.
In such circumstances, the merger or acquisition is deemed void. It appears possible for retrospective approval to be given. although the initial breach would have criminal and other serious consequences.
The failure to notify may be unknowing and not willful. This may happen when thresholds are unknowingly exceeded.
It does not appear possible to sever a domestic element of the merger or acquisition from the merger and acquisition as a whole. However, it is unlikely that the legislation would be interpreted so as to give extra-territorial effect.
It is possible to have informal discussions with the Competition Authority prior to notification. This will assist in the preparation of the merger notification and give parties the opportunity to provide an introductory explanation about the nature of competition in the relevant industry.
Although the Authority may be willing to participate in a pre-notification discussion, its guidance or “decisions” on such matters are not binding. Views given by the staff of the Authority are not necessarily the views of the Authority. The Authority may not fetter its formal powers by informal discussions.
The Competition Authority publishes the notification form. The notification is to be made by each of the undertakings involved. It is prescribed by regulations from time to time. Where the target is an undertaking, this undertaking is not required to notify. The purchaser only notifies. Parties should ideally make joint notifications, although they need not do so.
Failure to notify makes the transaction void. Title to the assets or shares does not pass.
Persons in control of the undertaking who have failed to notify the authority of a transaction may be subject on summary conviction to a fine up to €4,000 or, on conviction on indictment, to a fine up to €250,000. There is a continuing offence at the rate of €5,000 per day.
Persons in control include any officer who knowingly or willingly authorises or permits the contravention, partner or individual who is (in fact) in control of an undertaking.
Where the merger is not subject to compulsory notification, a voluntary notification may be undertaken. This would only be appropriate if there is a significant lessening of competition in a relevant market. It may be done if there is a risk that the competition authority may seek to have the transaction reversed.
The Competition Authority may enquire into a non-notifiable merger which has been implemented and which raises competition risks.
A voluntary notification may be appropriate
- where a dominant firm makes an acquisition or seeks to acquire or merge with a smaller firm whose turnover is less than €40 million;
- in the case of the acquisition of a maverick firm or new entrant into an otherwise oligopolistic market; or
- the acquisition of a dominant Irish player by a strong player in a neighbouring market that would have otherwise entered the market.
In considering whether a voluntary notice is appropriate, the Authority suggests that parties should consider if the post-merger market share is above 40 percent on any reasonable definition of the relevant market.
Parties should refer to the HHI index in. Voluntary notification should not generally be required if the post-merger market concentration is within zone A of merger guidelines. In other zones, and in cases where assessment relies on the market definition, informal discussions with the Competition Authority before making a voluntary notice.
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