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24 1991

COMPETITION ACT, 1991

PART IV

Mergers, Take-overs and Monopolies

Construction with Act of 1978.

13. —This Part shall be construed as one with the Act of 1978 and with the other Parts of this Act.

Investigation of abuse of dominant position.

14. —(1) Where the Minister is of the opinion that there is, contrary to section 5 , an abuse of a dominant position he may request the Authority to carry out an investigation and the Authority shall comply with the request.

(2) Where the Authority holds an investigation pursuant to a request under subsection (1) it shall report thereon to the Minister and the report shall state whether in the opinion of the Authority—

(a) a dominant position exists, and

(b) if it does, whether that dominant position is being abused.

(3) The Minister, having considered a report of the Authority under subsection (2), may, if the interests of the common good so warrant, after consultation with any other Minister of the Government concerned, by order either—

(a) prohibit the continuance of the dominant position except on conditions specified in the order, or

(b) require the adjustment of the dominant position, in a manner and within a period specified in the order, by a sale of assets or otherwise as he may specify.

(4) An order under this section shall state the reasons for making the order.

(5) The Minister may by order revoke an order under this section and may, with the agreement of every enterprise concerned, amend an order under this section.

(6) An order under this section shall not have effect unless and until it is confirmed by a resolution of each House of the Oireachtas.

(7) References in sections 12 and 13 of the Act of 1978 to section 11 of that Act shall be construed as references to this section and the expression “monopoly” shall be construed as a reference to an abuse of a dominant position.

(8) Compliance with an order under this section shall be a good defence to an action under section 6 in respect of any period after such compliance, in so far as such action is in respect of any matter which is the subject of such compliance.

(9) A right of action for relief under section 6 includes a right of action for contravention of an order under this section.

(10) The Minister shall publish a report under subsection (2), with due regard to commercial confidentiality, within two months of its being furnished to him by the Authority.

(11) Sections 10 and 11 of the Act of 1978 are hereby repealed.

Definitions in Act of 1978.

15. —(1) “Service” in section 1 (1) of the Act of 1978 shall not include the owning and transfer of land where this activity is the sole activity of the enterprise in which control is being sought.

(2) Section 1 (3) of the Act of 1978 is hereby amended by the substitution for paragraph (c) of the following:

“(c) Without prejudice to paragraph (b), where an enterprise (in this paragraph referred to as 'the first enterprise'), whether by means of acquisition or otherwise, obtains the right in another enterprise (in this paragraph referred to as 'the second enterprise') which is a body corporate—

(i) to appoint or remove a majority of the board or committee of management of the second enterprise, or

(ii) to shares of the second enterprise which carry voting rights, except where the voting rights in the second enterprise which are controlled by the first enterprise—

(I) are not after the acquisition more than 25 per cent of the total of such voting rights, or

(II) are before the acquisition more than one half of the total of such voting rights,

the said enterprises shall be deemed to have been brought under common control.”.

(3) Section 1 (3) (e) of the Act of 1978 is hereby amended by the insertion after “acquisition” at the end of the paragraph of “and the value of those assets or the value of the turnover generated therefrom, exceeds the thresholds referred to in section 2 (1) (a).”.

Notification of proposed merger or take-over.

16. —The Act of 1978 is hereby amended by the substitution, for section 5, of the following section:

“5.—(1) Each of the enterprises involved in a proposed merger or take-over shall notify the Minister in writing of the proposal, and provide full details thereof within the specified period of the offer capable of acceptance having been made, the effect of which would bring the enterprises under common control.

(2) Where, having received a notification under this section from each of the enterprises involved, the Minister is of opinion that in order to consider for the purposes of this Act a proposed merger or take-over he requires further information he may, within one month of the date of receipt by him of the notification, or of the last of such notifications, as the case may be, request such further information in writing from any one or more of the enterprises concerned, each of which shall provide the information within a period to be stated to them by the Minister in writing.

(3) (a) Where there is a contravention of subsection (1) or (2) the person in control of an enterprise failing to notify the Minister within the specified period or failing to supply the information requested within the period stated by the Minister shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a fine not exceeding £1,000 and, for continued contravention, to a daily default fine not exceeding £100, or

(ii) on conviction on indictment, to a fine not exceeding £200,000 and, for continued contravention, to a daily default fine not exceeding £20,000.

(b) Where a person is liable to a daily default fine he shall be guilty of contravening the provision on every day on which the contravention continues after the specified period has elapsed.

(c) For the purposes of this subsection the person in control of an enterprise is—

(i) in the case of a body corporate, any officer of the body corporate who knowingly and wilfully authorises or permits the contravention,

(ii) in the case of a partnership, each partner who knowingly and wilfully authorises or permits the contravention,

(iii) in the case of any other form of enterprise, any individual in control of that enterprise who knowingly and wilfully authorises or permits the contravention.

(4) For the purposes of this section the specified period shall be one month, or such other period as the Minister may specify.

(5) A notification for the purposes of subsection (1) shall not be valid where any information provided or statement made under subsection (1) or (2) is false or misleading.”.

Amendment of sections 6, 7 and 8 of the Act of 1978.

17. —(1) Section 6 of the Act of 1978 is hereby amended by the insertion after “section 3” of “or section 7”.

(2) The Act of 1978 is hereby amended by the substitution of the following for section 7:

“7.—Upon receipt of a notification under section 5 the Minister shall—

(a) as soon as practicable inform the enterprises which made the notification and any other enterprise involved which enquires of him that he has decided not to make an order under section 9 in relation to the proposed merger or take-over, or

(b) within 30 days of the commencement of the relevant period refer the notification to the Authority for investigation.”.

(3) Section 8 (1) of the Act of 1978 is hereby amended by the insertion after the word “date” of “not being less than 30 days after the reference”.

(4) Section 8 of the Act of 1978 is hereby amended by the substitution for subsection (2) of the following:

“(2) (a) A report of the Authority under subsection (1) shall state its opinion as to whether or not the proposed merger or take-over concerned would be likely to prevent or restrict competition or restrain trade in any goods or services and would be likely to operate against the common good.

(b) The Authority shall give its views on the likely effect of the proposed merger or take-over on the common good in respect of:

(i) continuity of supplies or services,

(ii) level of employment,

(iii) regional development,

(iv) rationalisation of operations in the interests of greater efficiency,

(v) research and development,

(vi) increased production,

(vii) access to markets,

(viii) shareholders and partners,

(ix) employees,

(x) consumers.”.

(5) The Minister shall publish any such report, with due regard to commercial confidentiality, within two months of its being furnished to him by the Authority.

(6) The Schedule to the Act of 1978 is hereby repealed.

Amendment of section 9 of the Act of 1978.

18. —Section 9 (1) (a) of the Act of 1978 is hereby amended by the insertion after “so warrant”, of the following, “which shall include, but is not confined to, the criteria in section 8,”.

Control of concentrations.

19. —(1) The transmission to the Minister by the Commission of the European Communities of a copy of a notification made under Council Regulation (EEC) No. 4064/89 on the control of concentrations between undertakings shall constitute a notification under section 5 of the Act of 1978 (as inserted by section 16 of this Act).

(2) The relevant period in respect of such a notification shall not commence until the Commission of the European Communities makes a decision under either Article 9 or 21 (3) of that Regulation.