Competition Act 2002

Obligation to notify certain mergers and acquisitions.

18

18.F98[(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 F99[60,000,000], and

(ii) the turnover in the State of each of 2 or more of the undertakings involved is not less than F99[10,000,000], 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)

F100[(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),]

F100[(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.]

F101[(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.]

F102[(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 F101[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 F100[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, F101[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, F103[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.

F103[(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 F104[the European Commission] of a copy of a notification made to the Commission under F101[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 F104[the European Commission] transmits a copy of the notification referred to in subsection (13), the date of receipt by the Authority of F105[that Commissions] decision under F101[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.

F102[(15) Summary proceedings in relation to an offence under subsection (9) may be brought by the Commission.]

Annotations

Amendments:

F98

Substituted and inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 55(a), S.I. No. 366 of 2014, subject to transitional provisions in s. 6.

F99

Substituted (1.01.2019) by Competition Act 2002 (Section 27) Order 2018 (S.I. No. 388 of 2018), art. 3, in effect as per art. 2.

F100

Substituted (27.09.2023) by Competition (Amendment) Act 2022 (12/2022), s. 14(b)(i), (ii), (c), S.I. No. 448 of 2023, subject to transitional provisions in s. 3. 

F101

Substituted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 55(c), (d), (f) and (i)-(j), S.I. No. 366 of 2014, subject to transitional provisions in s. 6.

F102

Inserted (27.09.2023) by Competition (Amendment) Act 2022 (12/2022), s. 14(a), (d), S.I. No. 448 of 2023, subject to transitional provisions in s. 3. 

F103

Inserted (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 55(g)-(h), S.I. No. 366 of 2014, subject to transitional provisions in s. 6.

F104

Inserted (15.05.2007) by Communications Regulation (Amendment) Act 2007 (22/2007), s. 28(a), S.I. No. 224 of 2007.

F105

Inserted (15.05.2007) by Communications Regulation (Amendment) Act 2007 (22/2007), s. 28(b), S.I. No. 224 of 2007.

Modifications (not altering text):

C24

Application of section restricted (29.01.2020) by Migration of Participating Securities Act 2019 (50/2019), s. 11(5), S.I. No. 26 of 2020.

Migration of relevant participating securities

11. ...

(5) To the extent that such an obligation would otherwise apply, any obligation to make a notification under section 18 of the Competition Act 2002 does not apply with respect to a migration of relevant participating securities in a participating issuer taking effect under subsection (2) but this subsection does not prejudice the application of the Competition Act 2002 to any act or omission, subsequent to the migration taking effect, that occurs in relation to the participating issuer.

...

Editorial Notes:

E27

Power pursuant to subss. (5) and (6) exercised (1.05.2007) by Competition Act 2002 (Section 18 (5) and (6)) Order 2007 (S.I. No. 122 of 2007).

E28

Power pursuant to subs. (8) exercised (1.01.2003) by Competition Act 2002 (Notification Fee) Regulations 2002 (S.I. No. 623 of 2002).

E29

Previous affecting provision: subss. 2(c)(i), (9) amended (31.10.2014) by Competition and Consumer Protection Act 2014 (29/2014), s. 55(d), (e), S.I. No. 366 of 2014, substituted as per F-note above.

E30

Previous affecting provision: application of section restricted (2.10.2008) by Credit Institutions (Financial Support) Act 2008 (18/2008), s. 7(2), commenced on enactment; repealed (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 92, S.I. No. 287 of 2013.

E31

Previous affecting provision: provision for references to Council Regulation (EEC) No. 4064/89 to be read as references to Council Regulation (EC) No. 139/2004 within the terms of the amending s. 7 made (2.10.2008) by Credit Institutions (Financial Support) Act 2008 (18/2008), s. 7(18), commenced on enactment; repealed (1.08.2013) by Central Bank (Supervision and Enforcement) Act 2013 (26/2013), s. 92, S.I. No. 287 of 2013.

E32

Previous affecting provision: power pursuant to subs. (5) exercised (1.01.2003) by Competition Act 2002 (Section 18 (5)) Order 2002 (S.I. No. 622 of 2002), art 4; revoked (1.05.2007) by Competition Act 2002 (Section 18 (5) and (6)) Order 2007 (S.I. No. 122 of 2007), art. 5.