Competition Act, 2002

Provisions with regard to media mergers.

23.—(1) Within 5 days after the receipt by it of a notification in relation to a media merger, the Authority shall—

(a) forward a copy of the notification to the Minister, and

(b) notify the undertakings involved in the merger that it considers the merger to be a media merger.

(2) If the Authority makes a determination referred to in section 21 (2)(a) in relation to a media merger it shall, immediately after doing so, inform the Minister of that fact and the Minister may, notwithstanding that determination, within 10 days after the date on which that determination is made, direct the Authority to carry out an investigation under section 22 in relation to the merger.

(3) Upon such a direction being given—

(a) the determination referred to in section 21 (2)(a) shall not operate to permit the media merger to be put into effect, and

(b) the Authority shall notify the undertakings involved in the merger that an investigation under section 22 in relation to the merger will be carried out pursuant to the direction.

(4) Where the Authority makes a determination under paragraph (a) or (c) of subsection (3) of section 22 in relation to a media merger it shall, immediately after doing so, inform the Minister of the determination and the Minister may within 30 days after the date of the making of that determination, notwithstanding that determination, having regard to, and only to, the relevant criteria, by order provide—

(a) that the merger may be put into effect,

(b) that the merger may be put into effect subject to specified conditions being complied with, or

(c) that the merger may not be put into effect.

(5) The Minister shall publish, with due regard for commercial confidentiality, a statement of the reasons for his or her making such an order within 2 weeks after the date on which the order is made.

(6) For the purpose of the exercise of the power under subsection (4), the Minister may consider such submissions or observations from persons claiming to be interested in the matter as the Minister thinks proper.

(7) In addition to the functions conferred on it by section 22 in relation to a merger or acquisition, the Authority shall, in dealing with a merger or acquisition under that section that is a media merger, form an opinion as to how the application of the relevant criteria should affect the exercise by the Minister of his or her powers under subsection (4) in relation to the merger.

(8) The Authority shall inform the Minister of the opinion it has so formed on request being made by the Minister of it to do so.

(9) The following provisions shall have effect on account of the additional procedures provided by the foregoing provisions in relation to media mergers:

(a) a media merger which could otherwise be put into effect upon a determination referred to in section 21 (2)(a) being made in relation to it may not be put into effect until the expiry of 10 days after the date on which that determination is made,

(b) a determination under section 22 in relation to a media merger shall not have effect until the expiry of 30 days after the date on which that determination is made and then only if, within that period, the Minister has not made an order under subsection (4) in relation to the merger or has stated in writing that he or she does not propose making such an order in relation to the merger.

(10) In this section—

“broadcasting service” means a service which comprises a compilation of programme material of any description and which is transmitted or relayed by means of wireless telegraphy, a cable system or a multipoint microwave distribution system, a satellite device or any other transmission system, directly or indirectly for reception by the general public, whether that material is actually received or not, and includes a sound broadcasting service within the meaning of the Radio and Television Act, 1988 , but does not include any such service (whether involving audio-visual material or audio material) that is provided by means of the system commonly known as the Internet;

“cable system” has the same meaning as it has in the Broadcasting Act, 2001 ;

“media business” means—

(a) a business of the publication of newspapers or periodicals consisting substantially of news and comment on current affairs,

(b) a business of providing a broadcasting service, or

(c) a business of providing a broadcasting services platform;

“media merger” means a merger or acquisition in which one or more of the undertakings involved carries on a media business in the State;

“programme material” has the same meaning as it has in the Broadcasting Act, 2001 ;

“providing a broadcasting service” shall be construed in accordance with subsection (11);

“providing a broadcasting services platform” shall be construed in accordance with subsection (12);

“relevant criteria” means the following matters—

(a) the strength and competitiveness of media businesses indigenous to the State,

(b) the extent to which ownership or control of media businesses in the State is spread amongst individuals and other undertakings,

(c) the extent to which ownership and control of particular types of media business in the State is spread amongst individuals and other undertakings,

(d) the extent to which the diversity of views prevalent in Irish society is reflected through the activities of the various media businesses in the State, and

(e) the share in the market in the State of one or more of the types of business activity falling within the definition of “media business” in this subsection that is held by any of the undertakings involved in the media merger concerned, or by any individual or other undertaking who or which has an interest in such an undertaking.

(11) A reference in this section to providing a broadcasting service shall be construed as a reference to the doing of either or both of the following:

(a) supplying a compilation of programme material for the purpose of its being transmitted or relayed as a broadcasting service,

(b) transmitting or relaying as a broadcasting service programme material.

(12) A reference in this section to providing a broadcasting services platform shall be construed as a reference to the transmitting or re-transmitting of programme material by means of wireless telegraphy, a cable system or a multipoint microwave distribution system, a satellite device or any other transmission system.