Competition Act, 2002


Mergers and Acquisitions

Mergers and acquisitions for the purposes of Act.

16.—(1) For the purposes of this Act, a merger or acquisition occurs if—

(a) 2 or more undertakings, previously independent of one another, merge, or

(b) one or more individuals or other undertakings who or which control one or more undertakings acquire direct or indirect control of the whole or part of one or more other undertakings, or

(c) the result of an acquisition by one undertaking (the “first undertaking”) of the assets, including goodwill, (or a substantial part of the assets) of another undertaking (the “second undertaking”) is to place the first undertaking in a position to replace (or substantially to replace) the second undertaking in the business or, as appropriate, the part concerned of the business in which that undertaking was engaged immediately before the acquisition.

(2) For the purposes of this Act, control, in relation to an undertaking, shall be regarded as existing if, by reason of securities, contracts or any other means, or any combination of securities, contracts or other means, decisive influence is capable of being exercised with regard to the activities of the undertaking and, in particular, by—

(a) ownership of, or the right to use all or part of, the assets of an undertaking, or

(b) rights or contracts which enable decisive influence to be exercised with regard to the composition, voting or decisions of the organs of an undertaking.

(3) For the purposes of this Act, control is acquired by an individual or other undertaking if he or she or it—

(a) becomes holder of the rights or contracts, or entitled to use the other means, referred to in subsection (2), or

(b) although not becoming such a holder or entitled to use those other means, acquires the power to exercise the rights derived therefrom.

(4) The creation of a joint venture to perform, on an indefinite basis, all the functions of an autonomous economic entity shall constitute a merger falling within subsection (1)(b).

(5) In determining whether influence of the kind referred to in subsection (2) is capable of being exercised regard shall be had to all the circumstances of the matter and not solely to the legal effect of any instrument, deed, transfer, assignment or other act done or made.

(6) For the purposes of this Act, a merger or acquisition shall not be deemed to occur if—

(a) the person acquiring control is a receiver or liquidator acting as such or is an underwriter or jobber acting as such, or

(b) all of the undertakings involved in the merger or acquisition are, directly or indirectly, under the control of the same undertaking, or

(c) control is acquired solely as a result of a testamentary disposition, intestacy or the right of survivorship under a joint tenancy, or

(d) control is acquired by an undertaking referred to in subsection (7) in the circumstances specified in subsection (8).

(7) The undertaking mentioned in subsection (6)(d) is an undertaking the normal activities of which include the carrying out of transactions and dealings in securities for its own account or for the account of others.

(8) The circumstances mentioned in subsection (6)(d) are that the control concerned is constituted by the undertaking's holding, on a temporary basis, securities acquired in another undertaking and any exercise by the undertaking of voting rights in respect of those securities, whilst that control subsists, is for the purpose of arranging for the disposal, within the specified period, of all or part of the other undertaking or its assets or securities and not for the purpose of determining the manner in which any activities of the other undertaking, being activities that could affect competition in markets for goods or services in the State, are carried on.

(9) In subsection (8) “specified period” means—

(a) the period of 1 year from the date on which control of the other undertaking was acquired, or

(b) if in a particular case the undertaking shows that it is not reasonably possible to effect the disposal concerned within the period referred to in paragraph (a), within such longer period as the Authority determines and specifies with respect to that case.