Yes. The rules governing Irish merger control are set out in the Competition Acts 2002 to 2014 (the "Competition Act"), which was substantially amended by the Competition and Consumer Protection Act 2014 (the "2014 Act").

2022: The Competition (Amendment) Act 2022 (the "2022 Act"), which was signed into law on 29 June 2022, introduces further reforms to the Competition Act (including the Irish merger control regime).  Although the 2022 Act has yet to come into force at the time of writing (August 2023), the merger control provisions are currently expected to come into operation later in 2023. The responses provided below therefore refer to the provisions of the 2022 Act.

The regulatory body in Ireland is the Competition and Consumer Protection Commission ("CCPC"), which was established under the 2014 Act and replaced the Competition Authority and the National Consumer Agency.

In addition to being subject to the CCPC process, media mergers (as defined in the Competition Act) are subject to a separate process, involving the Minister for Media, Tourism, Arts, Culture, Sport and the Gaeltacht ("Minister for Media").

Yes. Where a transaction meets the financial thresholds set out in the EU Merger Regulation and is notifiable to the European Commission, this supranational body will have jurisdiction to review the transaction instead of the CCPC.

The statutory basis for the merger filing requirements is Parts 3 and 3A of the Competition Act. The CCPC has also published a template Merger Notification Form and a number of notices and guidelines on how it applies the jurisdictional and substantive assessment aspects of Irish merger control. These include the CCPC’s ‘Notice in Respect of Guidelines for Merger Analysis’ in which the CCPC explains how it analyses the effects that a merger or acquisition would have on competition in Ireland.

All relevant Irish merger control legislation and CCPC notices and guidelines are available on the website of the CCPC (https://www.ccpc.ie/business/mergers/guidance-on-mergers/).

A transaction may be caught by the national rules where:

1. Two or more previously independent undertakings merge;
2. One or more individuals who already control one or more undertakings or one or more undertakings, acquire direct or indirect control of the whole or part of one or more other undertakings; or
3. The acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets, including goodwill, that constitutes a business to which a turnover can be attributed.

In addition, the creation of a joint venture to perform on a lasting basis all the functions of an autonomous economic entity ("a full-function joint venture") constitutes a merger or acquisition.

The acquisition of a minority interest in an undertaking will be notifiable only where the minority interest is sufficient to give the undertaking involved joint or sole control.

A merger or acquisition that meets the jurisdictional thresholds must be notified to and approved by the CCPC even if the transaction is between "foreign" companies. As the relevant turnover is turnover in the State of the undertakings involved, the jurisdiction of Irish merger control rules is primarily targeted at transactions with a nexus to the Republic of Ireland. There is no local effects test.

The relevant thresholds are met if, in the most recent financial year:

1. aggregate turnover in the Republic of Ireland of all of the undertakings involved is not less than €60m; and
2. turnover in the Republic of Ireland of each of two or more of the undertakings involved is not less than €10m.

The thresholds can apply to transactions involving the sale of rented property. Media mergers that fall under the Competition Act are also notifiable on a mandatory basis, regardless of whether the financial thresholds are met.

The filing is mandatory for a merger or acquisition that meets the financial thresholds. The filing is also mandatory in the case of a media merger under the Competition Act regardless of the turnover involved.  Any of the parties to a merger or acquisition that does not satisfy the financial thresholds may voluntarily notify the merger or acquisition to the CCPC for its review and approval under the merger control rules.

The 2022 Act will, when enacted, provide the CCPC with the power to direct the parties to notify a transaction that does not meet the financial thresholds. Where the parties fail to do so, the CCPC can investigate the transaction on its own initiative on the same basis and with the same powers as would be the case for a transaction that had been notified.

The earliest possible filing date is when: 

1. One of the undertakings involved has publicly announced an intention to make a public bid or a public bid is made but not yet accepted; 
2. The undertakings involved demonstrate a good faith intention to conclude an agreement or a merger or acquisition is agreed; or 
3. In relation to a scheme of arrangement, a scheme document is posted to shareholders.

The filing must be made before the proposed merger or acquisition is put into effect (see applicable penalties for “gun-jumping” below).

A transaction that is notifiable cannot be put into effect without approval. Therefore, following a filing, the applicable statutory period for a determination must have expired without a determination having been made, before the merger or acquisition can be put into effect.

Notifications to the CCPC must be made on the standard notification form, which is available on the CCPC’s website. The filing is long-form. Parties may seek waivers from completing sections of the form in certain cases. The notification form sets out the scope of information required from the parties, which includes a detailed description of the undertakings involved and the rationale for the proposed transaction, an analysis of the horizontal overlaps and vertical relationships arising, definitions of the relevant product and geographic markets, the market shares of the parties and their competitors in relevant markets, and the views of the parties as to the effect of the transaction on competition in the State. The Minister for Media has also prescribed a specific form for the notification of media mergers to the Department of Media, Tourism, Arts, Culture, Sport and the Gaeltacht.

In addition, the Simplified Merger Notification Procedure (the "Simplified Procedure") was introduced in July 2020 and further details are set out in the CCPC Guidelines available on its website (see here: https://www.ccpc.ie/business/simplified-merger-notification-procedure-regime-to-commence-on-1-july-2020/).  This is available in a number of scenarios, including where the merger does not result in a horizontal or vertical overlap, any horizontal overlap does not result in a combined share of more than 15%, any vertical overlap does not involve either party having a share of supply at each level of the market having a market share of more than 25%, or where the merger results in a change of control from joint to sole control. Although the same notification form must be used, parties are not required to provide certain information for transactions submitted under the Simplified Procedure (which would otherwise be required).  

A notification of a merger or acquisition must be accompanied by a fee, which is currently €8,000, otherwise, the notification is invalid. The fee is payable to the CCPC and also applies with respect to transactions submitted pursuant to the Simplified Procedure.

Every notification will involve a Phase I review. At the end of Phase I, the CCPC will either approve the proposal (unconditionally or subject to commitments if offered by the parties) or open a full Phase II investigation. The CCPC cannot prohibit a transaction at the end of Phase I. The CCPC will conduct a Phase II investigation if, at the end of Phase I, the CCPC is unable to conclude at that stage that the transaction will not result in a substantial lessening of competition.

Phase I commences when the CCPC receives a complete notification. If separate notifications are submitted, Phase I commences from the date of receipt of all of the required complete notifications.  In general, the CCPC must complete its Phase I review within 30 working days after receipt of a complete notification(s), although this period may be extended in certain circumstances.

During this period, the CCPC may send out requests for information or questionnaires to the notifying parties and/or third parties (e.g., competitors, customers, suppliers and trade associations), asking for information necessary for its assessment and verifying the information contained in the parties’ notification. If, within 30 working days of notification, the CCPC issues a formal written request for information ("RFI") to any of the notifying parties, the period of 30 working days will stop and the Phase I review period will commence again from the date that the CCPC receives the parties’ full responses to the RFI.

Phase II of a merger review commences when the CCPC adopts a decision to carry out a full Phase II investigation at the end of Phase I. Within 120 working days after the “appropriate date”, the CCPC must complete its Phase II review and adopt a decision. The appropriate date is the date of notification or, if a formal RFI was issued to the notifying parties within 30 working days of the notification, the date on which the full response to the RFI was submitted to the CCPC.

In a Phase II review, the notifying parties will continue to engage with the CCPC, answering any further requests for information or clarification received from the CCPC (including RFIs that will pause the clock on the CCPC’s review until the parties have fully responded). Meetings may take place between the notifying parties and the CCPC. At these meetings, any competition concerns on the part of the CCPC should become apparent. Third parties may also engage with the CCPC.

At the end of 40 working days following the initiation of the Phase II review, the CCPC will either approve the proposal or issue an assessment to the notifying parties if it is not satisfied that the proposal would not substantially lessen competition. The CCPC will detail in its Assessment the competition issues that it believes arise. The notifying parties will be granted access to the CCPC’s file and will normally be given 15 working days within which to reply to the Assessment. The notifying parties may also request an Oral Hearing before the CCPC. An Oral Hearing usually takes place shortly after the response to the Assessment. At the end of Phase II, the CCPC will either clear the transaction (unconditionally or subject to conditions) or prohibit the transaction.

In principle, the same timelines as set out above for a standard Phase I review apply in relation to the Simplified Procedure. However, if the use of the Simplified Procedure is accepted, this will usually result in a quicker decision (usually between 15 and 20 working days from the date of notification). Alternatively, the CCPC may revert to the standard merger procedure in certain circumstances, thus restarting the clock on its review and requiring full information to be provided.

A merger or acquisition will be prohibited under the Competition Act if the result of the transaction will be to "substantially lessen competition in markets for goods or services in Ireland". The CCPC’s investigations look at the possible effect of the proposed transaction on price and other potential impacts on consumers such as changes to quantity, quality, consumer choice and innovation.

For media mergers, the test for the subsequent review by the Minister for Media is whether the result of the media merger will be contrary to the public interest in protecting a plurality of the media in the State.

The Competition Act requires that the CCPC issue a determination in respect of all notified transactions.  

At the end of Phase I, the CCPC will inform the notifying parties and any other third parties who have made submissions of its determination to either approve the transaction (unconditionally or subject to commitments if offered by the parties) or carry out a full Phase II investigation.

At the end of Phase II, the CCPC will provide a written determination as to whether the transaction will be cleared, unconditionally or subject to conditions, or prohibited.  The CCPC will publish a notice setting out its final determination on its website.

Yes. Parties may offer commitments to the CCPC in order to address any competition concerns that the CCPC is likely to raise. The Phase I review period of 30 working days is automatically extended to 45 working days if any of the notifying parties offer commitments. If the CCPC issues an assessment after 40 working days of a Phase II review, the CCPC practice is that the parties can only offer commitment proposals at that stage if they do so before the expiry of 15 working days following the issue of the assessment.

The undertaking or person in control of an undertaking that has failed to notify the CCPC within the specified period or failed to supply the information required within the period specified by the CCPC (including any additional information subsequently requested by the CCPC in a formal RFI), as the case may be, is guilty of an offense commonly known as “gun-jumping” and liable:

1. On summary conviction to a fine not exceeding €3,000; or 
2. On conviction on indictment, to a fine not exceeding €250,000, and 
3. For each subsequent day that the offense continues, to a fine not exceeding €300 on summary conviction or €25,000 on conviction on indictment.

If the parties implement a notifiable merger prior to receipt of a clearance decision from the CCPC, it will be void and legally unenforceable under Irish law.

It is also a criminal offence to implement a prohibited merger and the responsible undertaking may be liable:

1. on summary conviction, to a fine not exceeding €3,000, a term of imprisonment not exceeding 6 months, or both; or
2. on conviction on indictment, to a fine not exceeding €10,000, a term of imprisonment not exceeding two years, or both.

Once the 2022 Act is enacted, the offense of “gun-jumping” (see above) will be updated to cover scenarios in which a party has notified a transaction to the CCPC but has proceeded to implement this transaction prior to receiving clearance from the CCPC. The same penalties as are set out above for “gun-jumping” also apply in respect of this form of “gun-jumping”.

The 2022 Act, once enacted, will also provide that, where a merger or acquisition has been implemented without the CCPC’s clearance and the CCPC ultimately determines that the transaction would have the effect of substantially lessening competition in the State, the CCPC will be able to require the parties to unwind or dissolve the transaction and determine the manner in which this should be done. Alternatively, where the transaction cannot be unwound or dissolved, the CCPC will be able to determine the best alternative manner by which the parties will be required to restore the status quo prior to the transaction being put into effect.

At present, the CCPC cannot review or challenge mergers that are not notifiable. However, if any of the parties voluntarily notifies the transaction to the CCPC for its review and approval under the merger control rules, the CCPC will have jurisdiction to review the transaction on notification.

The 2022 Act will, once enacted, provide the CCPC with the power to require the notification of a below-threshold (i.e. non-notifiable) transaction where it is of the opinion that the merger or acquisition in question may have an effect on competition in markets for goods or services.

Regardless of whether a transaction has been formally notified to the CCPC or “called in” by the CCPC as set out above, the 2022 Act will also provide the CCPC with the power to take interim measures in respect of a transaction under review where it considers such measures appropriate 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. Such interim measures may require the parties to refrain from taking steps towards implementing the transaction or to mitigate the impact of steps already taken towards implementation, and any failure to comply with interim measures may result in criminal prosecution and the same penalties as are set out above for “gun-jumping”.

If the CCPC learns of a proposed merger or acquisition that does not meet the thresholds for mandatory notification but which, in the CCPC’s view, gives rise to competition concerns, the CCPC may contact the parties to inquire if they intend to notify the transaction voluntarily to the CCPC.

If the parties inform the CCPC that they do not intend to notify, the CCPC may carry out an investigation into the competition effects of the proposal under Sections 4 and 5 of the Competition Act. Where necessary, the CCPC may issue proceedings seeking an injunction to restrain an implementation of the merger or acquisition pending the outcome of any such investigation.

Once the 2022 Act is enacted, where the CCPC decides to “call in” an unnotified transaction for review (see above):

1. The CCPC must provide the parties with written notice that they are required to notify the transaction in question and specify the period by which they are required to submit the notification (to which the parties can request an extension if necessary); and
2. The CCPC must issue this written notice no later than 60 working days after the earliest of: (i) the date on which one of the parties publicly announces their intention to make a public bid; (ii) the date on which the CCPC becomes aware that the parties have entered into a binding agreement; or (iii) the date on which the transaction is put into effect.

Although the 2022 Act has introduced significant reforms to the Competition Act (including in relation to the Irish merger control regime), the extent to which the CCPC will exercise its additional powers has yet to be seen as the 2022 Act has not yet come into force at the time of writing (August 2023).

As regards recent merger control trends, over the course of 2022, the CCPC received 68 merger notifications and issued 70 determinations, noting that some notifications were carried over from 2021. Whilst there was a 16% decrease in transactions notified to the CCPC in 2022 as compared with 2021, there has been a steady increase in the number of transactions that have been subject to an in-depth Phase 2 review by the CCPC in recent years (2 in 2020, 4 in 2021 and 6 in 2022).  At the time of writing, there are two ongoing Phase 2 investigations. 

Moreover, in 2022, the CCPC prohibited its first transaction since the authority was created in 2014 (the CCPC’s predecessor, the Competition Authority, had not successfully blocked a transaction since 2006). The prohibited transaction related to the proposed acquisition of NaviCorp Limited by healthcare services provider Uniphar (see: M-21-079-Uniphar-NaviCorp-Public-Determination.pdf (ccpc.ie)).

In relation to media mergers, the CCPC reviewed and issued 5 merger determinations in 2022, all of which were cleared in Phase 1.

Media mergers

Although referenced above, it is worth providing further details of the ‘media merger’ regime in Ireland, which was introduced under the 2014 Act and is now set out in Part 3A of the Competition Act. A ‘media merger’ is defined as:

1. A merger or acquisition in which two or more of the undertakings involved carry on a media business in the State; or 
2. A merger or acquisition in which one or more of the undertakings involved carries on a media business in the State and one or more of the undertakings involved carries on a media business elsewhere.

The Competition Act defines a ‘media business’ as follows:

1. The publication of newspapers or periodicals consisting substantially of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet; 
2. Transmitting, re-transmitting or relaying a broadcasting service;
3. Providing any program material consisting substantially of news and comment on current affairs to a broadcasting service; or
4. Making available on an electronic communications network any written, audiovisual or photographic material, consisting substantially of news and comment on current affairs, that is under the editorial control of the undertaking making available such material.

An undertaking ‘carries on a media business in the State’ if (i) it has a physical presence in the State, including a registered office, subsidiary, branch, representative office or agency, and making sales to customers located in the State; or (ii) it made sales in the State of at least €2 million in the most recent financial year.

Property transactions

Another notable feature of the Irish merger control regime is that the definition of a merger/acquisition under the Competition Act includes the acquisition of assets that constitute a business to which a turnover can be attributed. Irish merger control can therefore apply to transactions involving the sale of rented property where the relevant turnover thresholds are met. There have been numerous recent examples of property transactions being notified to the CCPC.

RFIs to third parties

Separately, while several of the reforms to the Irish merger control regime under the 2022 Act are referenced above, it is also worth noting that the