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Insertion of sections 18A and 18B into Principal Act
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15. The Principal Act is amended by the insertion of the following sections after section 18:
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“Power to require notification of below threshold mergers or acquisitions
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18A. (1) This section applies to a merger or acquisition that—
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(a) is not required to be notified under section 18(1),
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(b) has not been notified to the Commission under section 18(3) or 18(3A), and
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(c) may, in the opinion of the Commission, have an effect on competition in markets for goods or services in the State.
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(2) In relation to a merger or acquisition to which this section applies, the Commission may require, in accordance with subsection (3), each of the undertakings involved in the merger or acquisition to notify the Commission in writing, and provide full details, of the merger or acquisition and an undertaking of which such a requirement is made shall comply with the requirement.
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(3) A requirement under subsection (2) shall—
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(a) be made by notice in writing served on each of the undertakings involved in the merger or acquisition,
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(b) specify a period within which the undertakings involved in the merger or acquisition shall submit a notification to the Commission, and
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(c) be made by the Commission no later than 60 working days after the earliest of the following dates:
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(i) the date on which one of the undertakings involved in the merger or acquisition publicly announces an intention to make a public bid or a public bid is made but not yet accepted;
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(ii) the date on which the Commission becomes aware that the undertakings involved in the merger or acquisition have entered into an agreement the result of which will, if the agreement is implemented, be that the merger or acquisition occurs;
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(iii) the date on which the merger or acquisition is put into effect.
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(4) Where an undertaking of which a requirement is made under subsection (2) requests in writing, before the expiration of—
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(a) the period specified in the requirement, or
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(b) such period as stands extended from time to time in accordance with this subsection,
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an extension to the period within which it is required to notify the merger or acquisition concerned to the Commission, the Commission may, where it considers it appropriate to do so, extend that period, and an undertaking in respect of which such an extension is granted shall comply with the requirement within the period as so extended.
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(5) (a) Subject to paragraph (b), sections 18(8), 18(12), 19, 20, 21 and 22 shall apply to a notification under subsection (2) as if it were a notification under section 18(1).
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(b) Where a merger or acquisition to which this section applies has already been put into effect at the time a requirement is made under this section, subsections (1) to (5) of section 19 shall not apply to the merger or acquisition.
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(6) Where an undertaking does not comply with a requirement to notify a merger or acquisition under subsection (2) within the period specified in the requirement, the Commission may, in relation to the merger or acquisition, do one or more of the following:
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(a) examine the merger or acquisition in accordance with section 20 as if a notification had been received by the Commission in respect of it on the last day of the period specified in the requirement under subsection (1);
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(b) where the Commission considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State, impose interim measures and the provisions of section 18B will apply mutatis mutandis to any measures so imposed.
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Power to impose interim measures in respect of certain mergers and acquisitions
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18B. (1) Where the Commission—
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(a) has been notified of a merger or acquisition under section 18(1), 18(3), 18(3A), 18(12A) or 18A, and
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(b) considers it appropriate to do so due to the risk that the merger or acquisition may have an effect on competition in any markets for goods or services in the State,
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it may impose an interim measure on one or more undertakings involved in the merger or acquisition.
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(2) Where the Commission imposes an interim measure under subsection (1), it shall by notice in writing served on the undertaking on which the measure is imposed—
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(a) set out the nature of the interim measure or interim measures imposed, and
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(b) specify the period for which the interim measure shall remain in force, which may include such period as is required for the Commission to make a determination under section 21 or section 22 in relation to the merger or acquisition.
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(3) Where an interim measure has been imposed on an undertaking in accordance with this section, the Commission may, at any time before the expiry of the period referred to in subsection (2)(b), by notice in writing served on the undertaking on which the interim measure was imposed, vary or revoke the interim measure (including by specifying a period other than the period specified in the original interim measure) and, in the case of an interim measure that is varied, the interim measure shall apply on the terms set out in such notice.
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(4) Where an undertaking fails to comply with an interim measure imposed on it in accordance with this section, the undertaking, or a person in control of the undertaking (within the meaning of section 18(11) ), shall be guilty of an offence and shall, subject to subsection (5), be liable—
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(a) on summary conviction, to a fine not exceeding €3,000,
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(b) on conviction on indictment, to a fine not exceeding €250,000.
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(5) Subsection (4) operates so that if the contravention concerned continues one or more days after the date of its first occurrence, the undertaking or person referred to in that subsection is guilty of a separate offence under that subsection for each day that the contravention occurs; but in respect of the second or subsequent offence of which he or she is guilty by reason of that continued contravention, subsection (4) will have effect as if—
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(a) in paragraph (a) of that subsection, “€300” were substituted for “€3,000”, and
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(b) in paragraph (b) of that subsection, “€25,000” were substituted for “€250,000”.
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(6) In this Part, ‘interim measure’ means a measure that is imposed by the Commission in accordance with this section requiring an undertaking involved in a merger or acquisition—
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(a) to refrain from taking any step, or such steps as may be specified by the Commission, towards putting the merger or acquisition into effect, or from further putting it into effect, or
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(b) to take such actions as may be specified by the Commission for the purpose of mitigating the impact of any step already taken by such undertaking towards putting the merger or acquisition into effect,
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and without prejudice to the generality of the foregoing includes—
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(i) imposing on the undertaking obligations as to the carrying on of any activities or the safeguarding of any assets,
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(ii) providing for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the measure) or in any other manner, and
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(iii) imposing obligations preventing the undertaking from—
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(I) closing or selling sites,
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(II) selling or failing to maintain equipment,
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(III) degrading service levels,
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(IV) terminating the employment of key employees,
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(V) integrating IT systems,
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(VI) failing to participate in a tender process,
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(VII) discontinuing products, or
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(VIII) exchanging confidential commercially sensitive information.”.
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