S.I. No. 94/1990 - Proposed Merger Or Take-Over Conditional (No. 2) Order, 1990.

S.I. No. 94 of 1990.

PROPOSED MERGER OR TAKE-OVER CONDITIONAL (NO. 2) ORDER, 1990.

I, DESMOND O'MALLEY, 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, Anglo Irish Beef Processors Limited, now known as Anglo Irish Beef Processors, and DJS Meats Limited and its subsidiaries, being the proposed merger or take-over of which I was notified under section 5 of the first-mentioned Act on the 28th day of June, 1989, having complied with subsection (3) of section 9 of that Act and thinking that the exigencies of the common good so warrant, hereby, in exercise of the powers conferred on me by the said section 9, 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 (No. 2) Order, 1990.

2. (1) In this Order, except where the context otherwise requires—

"AIBP" means Anglo Irish Beef Processors, formerly known as Anglo Irish Beef Processors Limited, and references to AIBP include references to—

( a ) any holding company of AIBP,

( b ) any subsidiary of any such holding company,

( c ) any subsidiary of AIBP,

( d ) any enterprise or person which or who is under common control with Anglo Irish Beef Processors or with a person specified in paragraph (a), (b) or (c) of this definition, and

( e ) any individual who owns shares in Anglo Irish Beef Processors or in any company mentioned in paragraph (a), (b), (c) or (d) of this definition;

"DJS" means DJS Meats Limited and its subsidiaries;

"former assets", in relation to Master Meats, means the assets owned, controlled or made use of by Master Meats immediately before title to the shares in or assets of DJS passed under the take-over;

"Master Meats" means Master Meat Packers (Omagh) Limited;

"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 include references to a holding company of which the first-mentioned company is a subsidiary;

"the take-over" means the proposed merger or take-over involving the following enterprises, that is to say, Anglo Irish Beef Processors Limited, now known as Anglo Irish Beef Processors, and DJS Meats Limited and its subsidiaries of which the Minister was notified under section 5 of the Mergers, Take-overs and Monopolies (Control) Act 1978 (No. 17 of 1978), on the 28th day of June, 1989.

(2) ( a ) In this Order references to enterprises (whether named or not) being under common control include, in the case of companies, references to cases in which the same person owns shares in each company or is entitled, in the case of each company, to nominate a person for appointment as a director of the company.

( b ) In this Order references to the purchase of cattle are references to the purchase of cattle for slaughter for the purposes of the exportation of meat and meat products from the State.

( c ) Shares registered by the company concerned in the name of a person or in which a person has any beneficial interest or in relation to which he exercises or is entitled to exercise any control, or gives or is entitled to give any direction, respecting any voting rights attached to the shares shall be deemed for the purposes of this Order to be owned by the person.

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—

(1) if the take-over is effected without being subject to the conditions specified in Article 5 of this Order, Master Meats and DJS would be under common control,

(2) if Master Meats and DJS were under common control, such control would be likely to prevent, restrict or distort competition in the purchase of cattle in the county of Donegal and in the areas in the State adjoining that county to such an extent as to operate against the common good,

(3) if the take-over is effected subject to the conditions specified in Article 5 of this Order, Master Meats could compete with DJS in the purchase of cattle in the county of Donegal and in the areas in the State adjoining that county and the take-over would not operate against the common good,

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

( a ) effective competition in the purchase of cattle throughout the State is maintained,

( b ) the transactions specified in Article 5 (b) of this Order are prohibited, and

( c ) Master Meats and DJS are not under common control with AIBP or any other person and that AIBP does not own, control or make use of any of the assets or former assets of Master Meats.

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

( a ) title to the shares in or the assets of DJS shall not pass under the take-over until—

(i) Master Meats is disposed of as a going concern in such manner that it thereby ceases to be under common control with AIBP, and

(ii) AIBP does not own, control or make use of any of the assets or former assets of Master Meats,

( b ) no agreement, arrangement or understanding that would prevent, restrict or distort competition in the purchase of cattle in the State shall be entered into either directly or indirectly between AIBP and one or more of the following, that is to say, Master Meats or any enterprise which is under common control with Master Meats,

( c ) after the passing of title to the shares in or the assets of DJS under the take-over, Master Meats shall not come under common control with AIBP and AIBP shall not acquire any of the shares or assets or former assets of Master Meats, or own, control or make use of any of those assets, and

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

(2) Paragraph (1) (b) of this Article does not apply in relation to the purchase or non-purchase of cattle by a person ( other than Master Meats or an enterprise that is under common control with Master Meats) who owns, controls or makes use of any of the assets or former assets of Master Meats if the cattle are not intended to be or (if the cattle were purchased) would not have been killed and any meat or meat products derived from them are not intended to be or (if the cattle were purchased) would not have been processed, prepared, frozen, marketed or distributed in or from any facilities that form part of those assets.

GIVEN under my Official Seal, this 11th day of April, 1990.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The effect of this Order is to prohibit the proposed merger or take-over involving Anglo-Irish Beef Processors and DJS Meats Limited and its subsidiaries 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 passed within 21 sitting days after it is laid before it.