Helen Kelly is partner and head of the EC Competition and Regulatory Group in which comprises specialist lawyers with in-depth international and Irish experience in advising on all aspects of EC, competition and regulatory law matters.
Helen specialises in merger control, both at EC and Irish levels. Helen also advises in a range of cartel issues and has advised companies on dawn raid issues, the leniency programme, and attendance at the Competition Authority under witness summons. She is also acting on a number of competition litigation cases in the Irish courts as well as having experience in representing clients before the European Commission.
Helen advises on abuse of dominance issues including both asserting and refuting dominance and abuse.
Helen's expertise also includes acting on state aid issues; she has acted for the Irish Government in respect of state aid issues and for supposed beneficiaries of aid as well as companies complaining about aid.
Helen also advises in the area of sectoral regulation advising on sectors such as postal, telecommunications, transport and energy as well as advising utilities and non-utilities on public procurement issues.
Minister for Business, Enterprise and Innovation Heather Humphries recently laid the Competition Act 2002 (Section 27) Order 2018 before the Houses of the Oireachtais. This will have the effect of increasing the financial thresholds for M&A requiring a notification to the Competition and Consumer Protection Commission. This is the first time that a minister has used their powers under Section 27 of the Competition Acts from 2002 to 2017.
The Department of Business, Enterprise and Innovation recently published legislation that substantially increases the financial thresholds at and above which notification of a transaction is required to the Competition and Consumer Protection Commission. From 1 January 2019, only mergers where the acquirer and target each generate €10 million or more and together generate €60 million or more turnover in Ireland will trigger mandatory notification.
The European Commission recently published a new notice on the implementation of its decisions ordering the recovery of state aid. The recovery notice is far more detailed than the 2007 notice which it replaces and reflects recent developments in European Commission practice, including by providing more detail on tax state aid cases. For example, the notice provides new detailed guidance on issues such as the quantification of the state aid to be recovered.
Two recent Irish court rulings have helped to shed light on the role of the national courts in state aid cases. These cases are particularly relevant as the role of the courts is likely to continue to grow in importance for Irish clients in the coming years. In the first, the Supreme Court strongly affirmed the Circuit Court's jurisdiction to hear state aid allegations. In the second, the High Court determined that examinership does not trump a state aid decision from the European Commission ordering recovery.
The European Commission recently published a study which identifies the emerging trends and best practices with regard to the national courts' enforcement of state aid law across the European Union. In terms of trends, the study highlights that national courts rarely conclude that unlawful state aid has been granted (by their national authorities) and hence have rarely awarded remedies in favour of complainants that allege that state aid has been granted. This trend is particularly evident in relation to damages claims.
The Irish media merger regime has a long history and remains a complex part of Irish regulatory law and politics. Given the recent sharp increase in mergers of Irish and global media businesses – reflecting dramatic levels of decline in 'traditional' media consumption and 'e-substitution' leading to pressure to consolidate – the Irish media merger regime is affecting all corners of the global industry.