Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Under the Competition Act, a merger is said to occur where:
- two or more previously independent undertakings merge;
- one or more undertakings acquire control of another or a part of it;
- one undertaking acquires another's business so that the acquiring business effectively replaces the acquired undertaking in that line of business.
Once the control thresholds are triggered, it is necessary to n …

Concept of concentration

Under the Competition Act 2002, the responsibility for deciding on mergers (with the exception of media mergers) has been transferred from the Minister for Trade, Enterprise and Employment to the Competition Authority. The Competition and Consumer Protection Act 2014 adopted in July 2014, which came in force on 31 October 2014, brought significant amendments to both the general merger regime and the specific media merger rules. On 31 October 2014, the new Competition and Consumer Protection Commission (CCPC) published a whole set of guidance documents on how to analyze mergers and acquisitions under the Competition Act 2002, as amended (the “Competition Act”). Those include, inter alia, Guidelines for Merger Analysis (which only slightly amend the Competition Authority's Notice N/13/001 of 20 December 2013), a Notice in respect of non-notifiable mergers and acquisitions, Procedures for access to the file in merger cases, Procedures for the review of mergers and acquisitions and information on the Commission’s communications policy in relation to mergers.

The 2014 Act has carried out a significant overhaul of the existing rules on media mergers. From now on, such mergers will have to be notified both to the CCPC and the Minister for Communications, Energy and Natural Resources (previously the Minister for Jobs). The latter will carry out a Phase I assessment based on the effects of the merger on media plurality while the Phase II examination will be carried out by the Broadcasting Authority of Ireland.

Context

Under the Competition Act, a merger is said to occur where:

- two or more previously independent undertakings merge;

- one or more undertakings acquire control of another or a part of it;

- one undertaking acquires another's business so that the acquiring business effectively replaces the acquired undertaking in that line of business.

Once the control thresholds are triggered, it is necessary to notify the operation of concentration within one month of the conclusion of the agreement to merge or of making a public bid. Even mergers not meeting the thresholds may, pursuant to Section 18(3), be notified to the Competition and Consumer Protection Commission (CCPC). Under Section 19, a notified merger cannot be put into effect until the CCPC has given its decision. Failure to respect this requirement is considered to render the merger void.

Control can be acquired either as a matter of law or as a matter of fact. In the latter case, the authorities look to see if there was an acquisition of a decisive influence by the acquiring undertaking over the acquired undertaking. In this regard, the Irish rules are heavily influenced by EU merger control.

Finally, the creation of a joint venture to perform, on an indefinite basis, all the functions of an autonomous economic entity constitutes a merger (Section 16).

From 1 January 2019, increased merger notification thresholds have applied in Ireland. Now, transactions must be notified where (i) the aggregate turnover in Ireland of the undertakings involved is not less than EUR 60 million and (ii) the turnover in Ireland of each of 2 or more of the undertakings involved is not less than EUR 10 million. The new rules clearly aim at reducing the burden on undertakings and on the Commission.

Interestingly, under Section 18(5) of the Competition Act 2002, the Minister can specify that certain classes of merger require notification to the Competition Authority, regardless of their size.

Since the 2022 Amendment, the CCPC is now empowered to require merging parties to notify below threshold transactions where a perceived effect on competition in an Irish market occurs.  

Thresholds

Under the Competition Act, the substantive test to be applied to mergers is to establish whether the merger would lead to a substantial lessening of competition.

In assessing the state of the market in relation to the merger, the Competition and Consumer Protection Commission applies the Herfindahl Hirschman Index (HHI) as an indicator (see Guidelines for merger analysis).

Previously, the Minister considered a wide number of factors pertaining to the common good.

Global Competition Law

409. Concept of concentration

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Les notions juridiques connexes

409. Concept of concentration

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise