Mergers, Take-Overs and Monopolies (Control) Act, 1978

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Interpretation.

1.—(1) In this Act—

“the Act of 1972” means the Restrictive Practices Act, 1972 ;

“the Commission” means the Restrictive Practices Commission;

“conditional order” means an order under section 9 prohibiting a proposed merger or take-over except on conditions specified in the order;

“enterprise” means—

(i) a person or partnership engaged for profit in the supply or distribution of goods or the provision of services, including—

(a) a society, including a credit union, registered under the Industrial and Provident Societies Acts, 1893 to 1971,

(b) a society registered under the Friendly Societies Acts, 1896 to 1977, and

(c) a society established under the Building Societies Act, 1976 ; or

(ii) a holding company within the meaning of section 155 of the Companies Act, 1963 ;

“the Examiner” means the Examiner of Restrictive Practices;

“the Minister” means the Minister for Industry, Commerce and Energy;

“monopoly” means an enterprise or two or more enterprises under common control, which supply or provide, or to which is supplied or provided, not less than one-half of goods or services of a particular kind supplied or provided in the State in a particular year, according to the most recent information available on an annual basis, but does not include any enterprise at least 90 per cent. of whose output is exported from the State or any enterprise at least 90 per cent. of whose output comprises components for products which are exported from the State:

“the scheduled criteria” means the matters specified in the Schedule to this Act;

“service” includes any professional service, but does not include—

(i) any service provided by the holder of a licence under section 9 of the Central Bank Act, 1971 ,

(ii) any service provided by a trustee savings bank certified under the Trustee Savings Banks Acts, 1863 to 1965,

(iii) any service provided under a contract of employment,

(iv) the supplying of electricity,

(v) any transport service provided or operated by Córas Iompair Éireann,

(vi) any air service or service ancillary thereto,

(vii) any transport service provided by the holder of a licence under the Road Transport Act, 1932 , or the Road Transport Act, 1933 ,

(viii) any service provided by a harbour authority within the meaning of the Harbours Act, 1946 , or by a pilotage authority constituted under the Pilotage Act, 1913 , or

(ix) any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941 .

(2) For the purposes of this Act, a merger or take-over shall be deemed to be proposed when an offer capable of acceptance is made.

(3) (a) For the purposes of this Act, but subject to section 3, a merger or take-over shall be taken to exist when two or more enterprises, at least one of which carries on business in the State, come under common control.

(b) Enterprises shall be deemed to be under common control if the decision as to how or by whom each shall be managed can be made either by the same person, or by the same group of persons acting in concert.

(c) Without prejudice to paragraph (b), the acquisition by an enterprise (in this paragraph referred to as “the first enterprise”) in another (in this paragraph referred to as “the second enterprise”) which is a body corporate—

(i) of the right to appoint or remove a majority of the board or committee of management of the second enterprise, or

(ii) of shares of the second enterprise which carry voting rights, except where the voting rights in the second enterprise which are controlled by the first enterprise—

(A) are not after the acquisition more than 30 per cent. of the total of such voting rights,

or

(B) are before the acquisition more than one-half of the total of such voting rights,

shall be deemed to bring those enterprises under common control.

(d) For the purposes of paragraph (c)—

(i) “voting rights” do not include voting rights which arise only in specified circumstances; and

(ii) voting rights shall be deemed to be controlled by an enterprise when it can determine how the votes concerned shall be cast.

(e) Subject to section 3, where the assets, including goodwill, (or a substantial part of the assets) of an enterprise are acquired by another enterprise, the acquisition shall be deemed to constitute a merger or take-over for the purposes of this Act if upon the acquisition a result of the acquisition is to place the second-mentioned enterprise in a position to replace (or substantially to replace) the first-mentioned enterprise in the business in which that enterprise was engaged immediately before the acquisition.

(f) This subsection does not apply to a case where enterprises come under common control (or are deemed to come under common control) either because the person referred to in paragraph (b) is a receiver or liquidator acting as such or because the person making an acquisition referred to in paragraph (c) is an underwriter or jobber acting as such, or because the person making an acquisition referred to in paragraph (e) is a receiver or liquidator acting as such.

(g) This subsection does not apply to two or more bodies corporate, each of which is a wholly-owned subsidiary of the same body corporate.

(4) In this Act a reference to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended.

(5) In this Act a reference to a subsection, paragraph, subparagraph or clause is to the subsection, paragraph, subparagraph or clause of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.