Screening of Third Country Transactions Act 2023
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Interpretation | ||
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2. (1) In this Act— | ||
“acquire”, in relation to control of an asset or of an undertaking, shall be construed in accordance with subsection (3); | ||
“adjudicator” has the meaning given to it by section 22 ; | ||
“advisory panel” has the meaning given to it by section 39 ; | ||
“connected”, in relation to a person, shall be construed in accordance with section 3 ; | ||
“control”, in relation to an asset or an undertaking, shall be construed in accordance with subsection (2); | ||
“Minister” means the Minister for Enterprise, Trade and Employment; | ||
“non-notified transaction” means a notifiable transaction of which the Minister is not notified in accordance with section 10 ; | ||
“notice of information” has the meaning given to it by section 19 ; | ||
“notifiable”, in relation to a transaction, shall be construed in accordance with section 9 ; | ||
“notified transaction” means a transaction of which the Minister is notified in accordance with section 10 ; | ||
“prescribed” means prescribed by regulations made by the Minister under this Act; | ||
“Regulation” means Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 20192 establishing a framework for the screening of foreign direct investments into the Union; | ||
“relevant material” means any decision, evidence, document, material or any other matter that— | ||
(a) is relevant to an appeal under section 27 or 34 , any further appeal following such an appeal, an application under section 35 relating to such an appeal, or judicial review proceedings relating to a screening decision or the decision of an adjudicator, | ||
(b) is not publicly available, and | ||
(c) relates to the security or public order of the State; | ||
“screening decision” has the meaning given to it by section 16 ; | ||
“screening notice” has the meaning given to it by section 14 ; | ||
“third country” means a state or territory other than— | ||
(a) the State, | ||
(b) a Member State, | ||
(c) a state or territory, not being a Member State, that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993, and | ||
(d) Switzerland; | ||
“third country national” means— | ||
(a) a natural person who is ordinarily resident in a third country, or | ||
(b) an unincorporated group or partnership of natural persons at least one of whom is ordinarily resident in a third country; | ||
“third country undertaking” means an undertaking that is— | ||
(a) constituted or otherwise governed by the laws of a third country, | ||
(b) controlled by at least one director, partner, member or other person, that— | ||
(i) is a person referred to in paragraph (a), or | ||
(ii) is a third country national, | ||
or | ||
(c) a third country national; | ||
“transaction” means any acquisition, agreement or other economic activity resulting in— | ||
(a) a change in control of an asset in the State, or | ||
(b) the acquisition of all or part of, or of any interest in, an undertaking in the State; | ||
“undertaking” includes any person (including an individual, a body corporate, a partnership or any other unincorporated body of persons) engaged for gain in the production, supply or distribution of goods, the provision of services, the making or holding of investments or the carrying out of any other economic activity, but does not include a natural person whose role in such activities is limited to working under a contract of employment or a contract for services for an undertaking. | ||
(2) In this Act, a person shall be regarded as exercising control of— | ||
(a) an asset, where that person has ownership of, or the right to use, all or part of the asset, and | ||
(b) an undertaking, where that person can exercise decisive influence over the activities of the undertaking by any means, including as a consequence of— | ||
(i) the existence of rights or contracts conferring decisive influence on the composition, voting or other commercial decisions of the undertaking, or | ||
(ii) ownership of, or the right to use, all or part of the assets of the undertaking. | ||
(3) In this Act, control of an asset or of an undertaking shall be regarded as being acquired by a person who gains an ability to exercise control of the asset or of the undertaking for the first time or to a greater extent. | ||
(4) In this Act, the circumstances in which an asset shall be regarded as being in the State include— | ||
(a) where it is physically located within the territory of the State, and | ||
(b) in the case of an intangible asset, where it is owned, controlled or otherwise in the possession of an undertaking in the State. | ||
(5) In this Act, an undertaking shall be regarded as being in the State where it— | ||
(a) is constituted or otherwise governed by the laws of the State, or | ||
(b) has its principal place of business in the State. | ||