Merger control and the Competition (Amendment) Act 2022

Key points in the Act:

  • The 2022 Act allows the CCPC to compel the notification of below-threshold deals which were not the subject of a voluntary notification (either pre- or post-implementation) where it believes that they may have an effect on competition in markets for goods or services in the State. Even where a party fails to comply with this notification requirement, the CCPC is nonetheless empowered to proceed to examine the transaction as if a notification had been made.
  • The CCPC may impose interim measures where it considers it appropriate to do so due to the risk that the acquisition may have an effect on competition in any markets for goods or services in the State. This right applies in respect of notifiable transactions, as well as those which have been voluntarily notified and those whose notification has been compelled by the CCPC.  
  • Where a merger or acquisition which is the subject of a Phase 2 assessment is put into effect before the CCPC has issued a clearance decision, the 2022 Act allows for the unwinding or dissolution of the transaction where the CCPC concludes that the transaction will substantially lessen competition in the State. If unwinding is not possible, the parties must take appropriate steps to restore the situation to that which prevailed pre-transaction.
  • The 2022 Act permits below-threshold deals which were not voluntarily notified prior to implementation to be notified to the CCPC after they have been put into effect. In such circumstances, interim measures may be imposed by the CCPC as part of its review.
  • A new offence of "gun-jumping" (punishable by fines of up to €250,000 on conviction on indictment) has been introduced in respect of the implementation of certain transactions prior to receipt of clearance from the CCPC (relevant transactions are those which are: (i) mandatorily notifiable; or (ii) below-threshold and either voluntarily notified or required to be notified by the CCPC before being put into effect). Any such transactions are also deemed to be void pending CCPC approval or referral to a Phase 2 assessment.
  • The CCPC must now confirm compliance with requirements for further information within 10 working days of certification. The 2022 Act also allows the CCPC to compel information from third parties (e.g., market participants) whom it considers may have information relevant to its consideration of a transaction and not just from the businesses that are party to a merger or acquisition.

Key implications for Clients:

  • Business should be aware that the CCPC now retains the right to "call in" below-threshold mergers or acquisitions which "may have an effect" on competition in the State. This renders it important for businesses to ensure that the competitive effects of all prospective transactions (even those which do not meet the mandatory turnover thresholds) are carefully considered at a preliminary stage.  
  • In addition, the CCPC will now have the right to impose interim measures preventing parties from putting (or continuing to put) a transaction into effect or requiring them to take certain actions to mitigate the impact of any step already taken towards implementation of a transaction. Businesses should be cognisant of the fact that the range of measures envisaged by the 2022 Act - which can apply even in respect of completed transactions - is very broad and can include, for example, prohibitions on selling sites, integrating IT systems or exchanging confidential commercially sensitive information.
  • For Phase 2 transactions which are implemented prior to a clearance determination of the CCPC and which are deemed to result in a substantial lessening of competition, very significant powers are conferred on the CCPC allowing for the unwinding/dissolution of the acquisitions concerned. Allied with the new offence of gun-jumping created by the 2022 Act, these provisions emphasise the need for businesses to respect procedural requirements, as well as the importance of ensuring that an advance competitive assessment is carried out in respect of all potential deals (even those which are below-threshold).

For further information in relation to this topic please contact any member of our EU, Competition & Procurement team.

Date published: 20 July 2022