Part 3, Section 18 · Competition Act 2002

Contents

18Obligation to notify certain mergers and acquisitions.#

—(1) Where—

(a)in relation to a proposed merger or acquisition, in the most recent financial year—

(i)the aggregate turnover in the State of the undertakings involved is not less than €100,000,000, and

(ii)the turnover in the State of each of 2 or more of the undertakings involved is not less than €15,000,000, or

(b)a proposed merger or acquisition falls within a class of merger or acquisition specified in an order under subsection (5),each of the undertakings involved in the merger or acquisition shall notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect.

(1A)A notification under subsection (1)—

(a)shall be made before the proposed merger or acquisition is put into effect, and

(b)may be made after any of the following applicable events occurs:

(i)one of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted;

(ii)the undertakings involved demonstrate to the Commission a good faith intention to conclude an agreement or a merger or acquisition is agreed;

(iii)in relation to a scheme of arrangement, a scheme document is posted to shareholders.

(2)For the purpose of subsection (1)—

(a)“turnover” does not include any payment in respect of value-added tax on sales or the provision of services or in respect of duty of excise,

(b)subject to paragraph (c) an undertaking shall not be deemed to be involved in a merger or acquisition by virtue only of its being the vendor of any securities or other property involved in the merger or acquisition, and

(c)in relation to a merger or acquisition that will occur by reason of the acquisition concerned being an acquisition referred to in section 16(1)(c)—

(i)subparagraphs (i) and (ii) of subsection (1)(a), in their application to the part of an undertaking mentioned in section 16(1)(c), shall apply as if the references to turnover in the State were, in relation to that part of an undertaking, references to turnover in the State generated from the assets of that part of an undertaking that are the subject of the acquisition mentioned in section 16(1)(c),

(ii)notwithstanding paragraph (b), that part of an undertaking mentioned in section 16(1)(c) shall, for the purposes of paragraph (a) or (b) of subsection (1) but not so as to place on it an obligation to notify the Commission of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition.

(3)In the case of a proposed merger or acquisition that is not required to be notified under subsection (1), any of the undertakings involved in the merger or acquisition may, before putting the merger or acquisition into effect, notify the Commission in writing, and provide full details, of the proposal to put the merger or acquisition into effect, and such notification may be made after any of the applicable events referred to in paragraph (b) of subsection (1A) occurs.

(3A)Any of the undertakings involved in a merger or acquisition that—

(a)is not required to be notified under subsection (1), and

(b)was not notified under subsection (3),may notify the Commission in writing of the merger or acquisition after it has been put into effect, and provide full details of the merger or acquisition concerned.

(3B)The Commission may review any notification made to it under subsection (3) or (3A) and may, in relation to such notification, take interim measures.

(4)Nothing in this section or any other provision of this Act prejudices the operation of the Council Regulation.

(5)Where he or she is of opinion that the exigencies of the common good so warrant, the Minister may, after consultation with the Authority, by order specify a class or classes of merger or acquisition for the purposes of subsection (1)(b).

(6)The Minister may by order amend or revoke an order under subsection (5) or a previous order under this subsection.

(7)Every order under this section shall have effect on and from the date on which it is made and shall be laid before each House of the Oireachtas as soon as may be after it is made; if a resolution confirming the order is not passed by each such House within the next 21 days after that House has sat after the order is laid before it, the order shall lapse, but without prejudice to the validity of anything previously done thereunder.

(8)A notification in accordance with this section shall be accompanied by such fee as may be prescribed and different fees may be prescribed for different classes of notification; if the notification is not accompanied by that fee the notification shall be invalid.

(9)Where there is a contravention of subsection (1), section 18A(1) or section 20(2) an undertaking, the person in control of an undertaking, or (in the case of section 20(2)) other person, which has failed to notify the Authority within the specified period or failed to supply the information required within the period specified by the Authority, as the case may be, shall be guilty of an offence and shall, subject to subsection (10), be liable—

(a)on summary conviction, to a fine not exceeding €3,000,

(b)on conviction on indictment, to a fine not exceeding €250,000.

(10)Subsection (9) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the undertaking or person referred to in that subsection is guilty of a separate offence under that subsection for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (9) shall have effect as if—

(a)in paragraph (a), “€300” were substituted for “€3,000”,

(b)in paragraph (b), “€25,000” were substituted for “€250,000”.

(11)For the purposes of subsection (9) the person in control of an undertaking is—

(a)in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,

(b)in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention,

(c)in the case of any other form of undertaking, any individual in control of that undertaking who knowingly and wilfully authorises or permits the contravention.

(12)A notification for the purposes of subsection (1) or (3) shall not be valid where any information provided or statement made under subsection (1) or (3) or section 20(2) is false or misleading in a material respect, or if the Commission is of the opinion that the full details required under subsection (1) or (3), or all the specified information requested under section 20(2), have not been provided, and any determination under this Part made on foot of such notification is void.

(12A)Notwithstanding section 19(2), the Commission may, for the purposes of this Part, request or accept notification of a merger or acquisition to which subsection (1) applies but which was purported to have been put into effect without having been notified in accordance with that subsection.

(13)The transmission to the Authority by the European Commission of a copy of a notification made to the Commission under the Council Regulation shall constitute a notification under subsection (1) in relation to the merger or acquisition concerned.

(14)Irrespective of the date on which the European Commission transmits a copy of the notification referred to in subsection (13), the date of receipt by the Authority of that Commission’s decision under the Council Regulation in relation to the merger or acquisition, the subject of the notification, shall be deemed to be the date of the notification for the purposes of this Act.

(15)Summary proceedings in relation to an offence under subsection (9) may be brought by the Commission.

Contains Revised Acts prepared by the Law Reform Commission (revisedacts.lawreform.ie): legislative text under the Oireachtas (Open Data) PSI Licence, annotations under CC BY 4.0. Revised Acts are administrative consolidations, not authoritative.