2014 has been an exceptionally busy year for Irish competition and merger control law. Most notable changes are those to the general merger control thresholds and a complete overhaul of the media merger regime.
The Competition and Consumer Protection Act 2014 (the “Act”) entered into force on 31 October 2014. As a result, the Competition Authority and National Consumer Agency have merged, creating a unified regulator called the Competition and Consumer Protection Commission (the “Irish Commission”).
New Threshold for Merger Notifications
Under the new regime, undertakings must notify a proposed transaction where, in the most recent financial year:
- the aggregate turnover in the Republic of Ireland of all undertakings involved is not less than €50 million, and
- the turnover in the Republic of Ireland of each of two or more of the undertakings involved is not less than €3 million.
Two Notifications under the Media Merger Regime
Parties to a media merger are now required to make two separate notifications; one notification to the Irish Commission, or to the European Commission where appropriate, and a second notification, dealing with ‘media plurality’ issues, to the Minister for Communications, Energy and Natural Resources.
In 2013, the Irish Competition Authority, as it was then, (the “Authority”) conducted an investigation into how An Post applied its Zonal Pricing Scheme for users of its Publication Services product (the “Service”). The Service involves the delivery by post of newspapers and periodicals presented in bulk to An Post.
The investigation conducted by the Authority indicates that An Post sought exclusivity from publishers by making a reduced tariff for the Service, conditional on An Post providing all of the publisher’s delivery requirements. This, essentially, had the same effect as granting an exclusivity discount. Given, what the Authority considered to be, An Post’s likely dominant position in the relevant market, the Authority felt that the application of the scheme was likely to amount to a breach of Section 5 of the Act and Article 102 of the Treaty on the Functioning of the European Union.
An Post agreed to amend its procedures and the Authority was satisfied that the revised procedures addressed the competition concerns identified and closed its investigation.
The Authority and the Irish Medical Organisation (the “IMO”) settled a High Court case over whether the IMO could enter into talks with the government on behalf of its members. The IMO is a representative body for the medical profession in Ireland, including GPs. The Authority brought proceedings claiming that the IMO was organising a collective boycott by GPs. The Authority argued that the withdrawal of services by GPs would restrict supply on the market and distort competition.
The parties ultimately reached an agreement, with the IMO providing the following undertakings to the Authority:
- not to organise or recommend the collective withdrawal of services or boycotts by its members; and
- to advise its members that they should decide individually, and not collectively, whether to participate in publicly-funded GP health services on such terms as are offered by the Minister for Health.
The outcome appears to be a balanced one, whereby it enables the State to continue its planned reform to the health sector, whilst ensuring costs are not increased through anti-competitive behaviour.
In 2014, we saw 41 transactions notified to the Competition Authority, up from 37 in 2013. With the previous regime already casting a wide net, it will be interesting to see what impact the Act will have on these figures going forward.
New media merger guidelines will also be published in 2015. Given the significantly enhanced regulation in the area, this will be an important document. The extended application of the Act to online media businesses means that it is now important for those companies to be aware of their obligations arising under the Act.
For more information, please contact a member of the Mason Hayes & Curran EU & Antitrust team.
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