S.I. No. 302/1988 - Proposed Merger Or Take-Over Conditional Order, 1988.

S.I. No. 302 of 1988.

PROPOSED MERGER OR TAKE-OVER CONDITIONAL ORDER, 1988.

I, ALBERT REYNOLDS. Minister for Industry and Commerce, having considered the report of the Fair Trade Commission under section 8 (1) of the Mergers. Take-overs and Monopolies (Control) Act. 1978(No. 17 of 1978), as amended by the Restrictive Practices (Amendment) Act, 1987 (No. 31 of 1987), of its investigations of the proposed merger or take-over involving the following enterprises, that is to say, Pernod Ricard and Irish Distillers Group plc, being the proposed merger or take-over of which I was notified under section 5 of the Act on the 5th day of October 1988, having complied with section 9 (3) of the said first- mentioned Act and thinking that the exigencies of the common good so warrant, hereby, in exercise of the powers conferred on me by section 9 of the said Mergers. Take-overs and Monopolies (Control) Act, 1978, as adapted by the Industry. Trade, Commerce and Tourism (Alteration of Name of Department and Title of Minister) Order, 1986 ( S.I. No. 41 of 1986 ), make the following Order:

1. This Order may be cited as the Proposed Merger or Take-over Conditional Order, 1988.

2. In this Order except where the context otherwise requires—

"the Act" means the Mergers, Take-overs and Monopolies (Control) Act, 1978 (No. 17 of 1978);

"associated facilities" means the facilities employed by Irish Distillers in or in relation to the manufacture, storage. bottling, packaging, marketing, distribution and sale of alcoholic beverages or ingredients or constituents thereof or in relation to any process or activity ancillary to those aforesaid;

"brands" means the names under which spirits manufactured by Irish Distillers are distributed for sale by retail;

"GC & C" means GC & C Brands plc;

"holding company" and "subsidiary" have the meanings respectively assigned to them by the Companies Act, 1963 (No. 33 of 1963), and references to a holding company including references to a holding company of which the first-mentioned company is a subsidiary;

"Irish Distillers" means Irish Distillers Group plc:

"Pernod" means Pernod Ricard;

"spirits" means distilled alcoholic beverages;

"the take-over" means the proposed merger or take-over involving the following enterprises, that is to say, Pernod and Irish Distillers of which the Minister was notified under section 5 of the Act on the 5th day of October, 1988.

3. The take-over is hereby prohibited except on the conditions specified in Article 5 of this Order.

4. The reasons for making this Order are that the Minister considers that—

( a ) if the take-over is effected without being subject to the conditions specified in Article 5 of this Order, competition in the sale of spirits in the State could be so restricted as to operate against the common good, and

( b ) if the take-over is effected subject to the said conditions, it will not operate against the common good, and

( c ) it is necessary, having regard to the exigencies of the common good, to ensure that—

(i) effective competition in the sale of spirits in the State is maintained, and

(ii) transactions referred to in subparagraph (a) of Article 5 (1) of this Order that, in the opinion of the Minister, could prevent or restrict competition in the sale of spirits in the State, prejudice the development of the spirits distilling industry in the State or otherwise operate against the common good in respect of the scheduled criteria and transactions referred to in paragraph (b) of the said Article 5 (1), are prohibited.

5. (1) The conditions referred to in Article 3 of this Order are:

( a ) if Pernod acquires more than 50 per cent of the issued shares carrying voting rights of Irish Distillers, any transaction (not being a merger or take-over) that consists of or includes the sale of any brands or any associated facilities and is intended to take effect within 5 years of the date (referred to subsequently in this Article as "the relevant date") on which the proportion of the issued shares carrying voting rights of Irish Distillers held by Pernod first exceeded 50 per cent shall be subject to the consent of the Minister,

( b ) no agreement, arrangement or understanding that would prevent, restrict or distort competition in the sale of spirits in the State shall be entered into either directly or indirectly between any of the following, that is to say:

(i) Pernod,

(ii) any holding companies of Pernod,

(iii) any subsidiaries of Pernod,

(iv) any subsidiaries of any holding company of Pernod,

(v) GC & C

(vi) any holding companies of GC & C,

(vii) any subsidiaries of GC & C,

(viii) any subsidiaries of any holding company of GC & C,

and

( c ) the take-over shall be effected within 12 months of the making of this Order.

(2) For the purposes of this Article, shares of Irish Distillers acquired or held by any holding company or subsidiary of Pernod or by a subsidiary of any holding company of Pernod or by a person acting in concert with Pernod or any other of those companies shall be deemed to have been acquired or, as the case may be, to be held, by Pernod.

GIVEN under my Official Seal this 23rd day of November, 1988.

ALBERT REYNOLDS,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The effect of this Order is to prohibit the proposed merger or take-over involving Pernod Richard and Irish Distillers Group plc except on certain conditions.

The Order is effective from the date of its signature but may be annulled by a resolution of either House of the Oireachtas within 21 sitting days in either case.