When to notify Mergers & Acquisitions to the CCPC – did you know properties are sometimes relevant?!

Who are the CCPC?

The Competition and Consumer Protection Commission (“CCPC”) is an independent statutory body with a dual mandate to enforce competition and consumer protection law in Ireland.  The CCPC was established under the Competition and Consumer Protection Act 2014 (“2014 Act”) following the amalgamation of the Competition Authority and the National Consumer Agency.

Its functions include; promoting competition, protecting the interests and welfare of consumers, commencement and completion of appropriate investigations, enforcement of certain statutory provisions and encouraging compliance through the publication of guidance materials.

When does a merger or acquisition occur?

Pursuant to its role in promoting competition, mergers and acquisitions which meet certain thresholds are subject to mandatory notification to the CCPC.  A merger or acquisition will occur if:

  • two or more undertakings, previously independent of one another, merge, or
  • 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
  • the acquisition of part of an undertaking, although not involving the acquisition of a corporate legal entity, involves the acquisition of assets that constitute a business to which a turnover can be attributed (it should be noted that ‘assets’ includes goodwill).

It should be noted that the acquisition of a property to which a turnover can be attributed (such as a rent roll) may, if the thresholds are met, require a notification to be made.

What thresholds need to be met?

The thresholds for notification were originally set down in Section 18(1) of the Competition Act 2002 as amended by Section 55(a) of the 2014 Act.  These have now been amended by SI No. 388 of 2018.  A notification to the CCPC will be required where, in relation to a proposed merger or acquisition, in the most recent financial year:

  • the aggregate turnover in the State of the undertakings involved is not less than €60,000,000 (formerly €50,000,000); and
  • the turnover in the State of each of two or more of the undertakings involved is not less than €10,000,000 (formerly €3,000,000).

When these thresholds are not met, mergers and acquisitions can be notified to the CCPC on a voluntary basis in accordance with Section 18(3) of the Competition Act 2002 (as substituted by section 55(c) of the 2014 Act).

When must you notify the CCPC?

In accordance with section 18(1A) of the Competition Act 2002 (as amended), a notification must be made to the CCPC before the proposed merger or acquisition is put into effect, and may be made after any of the following applicable events occurs:

  • 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;
  • the undertakings involved demonstrate to the CCPC a good faith intention to conclude an agreement or a merger or acquisition is agreed;
  • in relation to a scheme of arrangement, a scheme document is posted to shareholders.

The number of mergers and acquisitions notified to the Competition and Consumer Protection Commission (CCPC) increased by 36% last year, according to the organisation’s Mergers and Acquisitions Report for 2018.  There was also a significant increase in the number of extended investigations.

How we can help?

We would be happy to assist any of our clients if there are any concerns as to whether a notification is required to be made to the CCPC, and the formulation of such notification.

Please contact Conor Mac Nally in our Banking & Finance Department on 01 440 8300 or cmacnally@bhsm.ie for further information.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.


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