Competition Act, 2002
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Obligation to notify certain mergers and acquisitions. |
18.—(1) Where a merger or acquisition is agreed or will occur if a public bid that is made is accepted and— | |
(a) in the most recent financial year— | ||
(i) the world-wide turnover of each of 2 or more of the undertakings involved in the merger or acquisition is not less than €40,000,000, | ||
(ii) each of 2 or more of the undertakings involved in the merger or acquisition carries on business in any part of the island of Ireland, and | ||
(iii) the turnover in the State of any one of the undertakings involved in the merger or acquisition is not less than €40,000,000, | ||
or | ||
(b) the 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 Authority in writing of the proposal to put the merger or acquisition into effect, and provide full details thereof, within 1 month after the conclusion of the agreement or the making of the public bid. | ||
(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 (iii) of paragraph (a) of subsection (1), in their application to the second-mentioned undertaking in section 16 (1)(c), shall apply as if the references in them to the world-wide turnover and turnover in the State were, in relation to that undertaking, references, respectively, to the world-wide turnover and turnover in the State generated from the assets of that undertaking that are the subject of the acquisition mentioned in section 16 (1)(c), and | ||
(ii) notwithstanding paragraph (b), that second-mentioned undertaking 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 Authority of the proposal to put the merger or acquisition into effect, be deemed to be involved in the merger or acquisition. | ||
(3) If— | ||
(a) 2 or more undertakings agree to a merger or acquisition, or | ||
(b) a merger or acquisition will occur if a public bid that is made is accepted, | ||
being in either case a merger or acquisition to which subsection (1) does not apply, any of the undertakings which have agreed to or are involved in the merger or acquisition may notify the Authority in writing of the proposal to put the merger or acquisition into effect, and provide full details thereof, within 1 month after the conclusion of the agreement or the making of the public bid. | ||
(4) Nothing in this section or any other provision of this Act prejudices the operation of Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings. | ||
(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) or section 20 (2) the person in control of an undertaking 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 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, and any determination under this Part made on foot of such notification is void. | ||
(13) The transmission to the Authority by the Commission of a copy of a notification made to the Commission under Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings shall constitute a notification under subsection (1) in relation to the merger or acquisition concerned. | ||
(14) Irrespective of the date on which the Commission transmits a copy of the notification referred to in subsection (13), the date of receipt by the Authority of the Commission's decision under Council Regulation No. 4064/89 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. |