IRELAND Law and Practice Contributed by: Philip Tully, Emma Doherty, Alice Duffy, Simon Shinkwin and Marie McGinley, Matheson LLP
acquire direct or indirect control of the whole or part of one or more other undertakings; or • the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, consists of acquiring assets that constitute a business to which a turnover can be attributed (here, “assets” include goodwill). Turnover Thresholds Mergers and acquisitions that meet the turnover thresholds set out in the Act are subject to mandatory notification to the CCPC, where, for the most recent financial year: • the aggregate turnover within Ireland of the under - takings involved is not less than EUR60 million; and • the turnover within Ireland for each of two or more of the undertakings involved is not less than EUR10 million. The simplified merger notification procedure can be used for transactions that meet the financial thresh - olds for notifications but pose no risk of substantial lessening of competition in Ireland, for example, where there is no horizontal or vertical overlap between the undertakings involved, where the combined market shares are less than 15% in cases of horizontal over - lap and 25% in cases of vertical overlap, or where there is a change from joint to sole control in a pre- existing joint venture. Where these requirements are not met, mergers may still be notified to the CCPC on a voluntary basis and the CCPC can also investigate mergers falling below the turnover thresholds, where they believe the merger could present competition issues. Joint Ventures Only full-function joint ventures (ie, those which per - form, on a lasting basis, all the functions of an auton - omous economic entity) constitute a merger for the purposes of the Irish merger control regime. Where a joint venture does not qualify as full function, the CCPC may assess it under Section 4 of the Act, based on Article 101 of the Treaty on the Functioning of the European Union (TFEU). Typically, the CCPC will have regard to the European Commission’s Guidelines on
Horizontal Cooperation Agreements and the Guide - lines on Vertical Restraints when undertaking such an assessment. 6.2 Merger Control Procedure A filing must be submitted to the CCPC prior to imple - menting the merger and may be made as long as the undertakings involved demonstrate a good faith inten - tion to conclude an agreement. Phase I A Phase I clearance determination must be issued by the CCPC within 30 working days of the “appropriate date”, which means the date on which a complete filing by the merging parties is made unless either the CCPC has used its power to “stop and restart the clock” by issuing a formal requirement for information (RFI). The clock will restart when the RFI is complied with or when the parties and the CCPC commence negotiating remedies, in which case, the Phase I peri - od is extended to 45 working days. The CCPC also issues “informal” requests for information that do not stop and restart the clock. Phase II A Phase II clearance determination must be issued by the CCPC within 120 working days of the appropriate date. If the CCPC issues a formal RFI in the first 30 working days of the Phase II period, this has the effect of stopping and restarting the clock in the same way as in Phase I. If the parties and the CCPC are negotiat - ing remedies, the Phase II period is extended to 135 working days. Obligations and Failure to Notify A suspensory obligation is included in the Act, which imposes a prohibition on the merging parties putting a merger that has been notified (both mandatorily and voluntarily) into effect prior to the issuing of a clear - ance determination. In terms of the Act, failure to notify a merger that meets the turnover thresholds is a criminal offence punish - able by fines of up to EUR250,000, plus EUR25,000 per day for a continued breach. The CCPC can now also impose administrative fines or could also seek (with the Director for Public Prosecutions) criminal sanctions.
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