This article highlights recent developments in Irish competition law, including with regard to merger notifications before the Competition and Consumer Protection Commission (CCPC), the CCPC's final decision in Berendsen/King's Laundry and the CCPC's Annual Report 2019, which covers merger control, competition enforcement and competition law policy.
On 14 June 2019 the Irish Competition and Consumer Protection Commission (CCPC) confirmed its plan to introduce in 2020 a simplified procedure for the notification of mergers which satisfy the relevant financial thresholds and do not raise competition concerns. The CCPC has now consulted on draft guidance on the simplified procedure, although the outcome of the consultation and a decision on from what date the new procedure will be available is still unknown.
In its recent decision on CVC's acquisition of Celtic Rugby DAC (the rights holder in respect of the PRO14 rugby union competition), the Competition and Consumer Protection Commission continued its trend of imposing behavioural remedies which are unusual in an international context. It is difficult to see how this could be right and something in respect of which a commitment could reasonably be given by someone in CVC's position.
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.