The Competition and Consumer Protection Act (the “Act”) has just been enacted and is expected to enter into force (in stages) in the autumn of 2014. It will make significant changes to the Irish competition law regime, as outlined below.
The Act amalgamates the Competition Authority and National Consumer Agency, and establishes the Competition and Consumer Protection Commission in their place (“CCPC”).
The Act increases the timeframes for the review of mergers. The timeframe for an unextended Phase I review is currently one month. Under the Act, it will be 30 working days (extendable where a formal information request is made or remedies are proposed). The timeframe for an unextended Phase II merger review is currently four months; under the Act, it will be 120 working days (again extendable where a formal information request is made or remedies are proposed).
The Act also changes the financial thresholds which trigger notification. The new financial thresholds will be as follows:
- aggregate turnover in the Republic of Ireland of all of the undertakings involved is not less than €50 million; and
- turnover in the Republic of Ireland of each of two or more of the undertakings involved is not less than €3 million.
Finally, under the current rules, notification can only be made once the transaction agreement has been signed, and must be made within one month of signing. The Act permits notification prior to the signing of an agreement, where the undertakings involved can demonstrate a good faith intention to conclude an agreement. There is no deadline for notification to the CCPC.
The notification fee remains at €8,000 for the time being. In terms of transition, transactions notified before commencement of the new rules will be reviewed under the old rules.
The media merger regime
The Act introduces a new requirement that all relevant media mergers must be notified not only to the CCPC but also to the Minister for Communications. Where the Minister for Communications opens a second phase examination, this will take the form of a referral to the Broadcasting Authority of Ireland (“BAI”). Timetables are significant: the Minister has 30 working days for an unextended Phase I review, and in an unextended Phase II review, the BAI has 80 working days to report and then the Minister has 20 working days to make a determination. These periods are extendable where formal information requests are issued or where commitments are offered. There is no fee for notifying the Minister for Communications but the BAI has the power to recover its costs from the undertakings involved. The notification to the Minister can be made as soon as the notification to the CCPC (or European Commission, as the case may be) has been made, so that the reviews can run concurrently.
Grocery Goods Undertakings
The Act gives the Minister for Enterprise the power to make Regulations in relation to relationships between “relevant grocery goods undertakings” (whose annual worldwide turnover exceeds €50 million) and other “grocery goods undertakings”. The CCPC will have powers to investigate alleged breaches of the Regulations, including the power to carry out inspections of grocery goods undertakings. Failure to comply with the Regulations will be an offence punishable by fines and imprisonment. In addition, aggrieved parties can seek damages from grocery goods undertakings which have breached the Regulations, and the CCPC will also publish a list of offenders (a “name and shame” provision).
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