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Merger Control 2021 Merger Control 2021 A practical cross-border insight into merger control issues 17th Edition Featuring contributions from: Advokatfirmaet Grette AS Drew & Napier LLC Norton Rose Fulbright South Africa Inc AlixPartners ELIG Gürkaynak Attorneys-at-Law OLIVARES ALRUD Law Firm Hannes Snellman Attorneys Ltd Pinheiro Neto Advogados AMW & Co. Legal Practitioners L&L Partners Law Offices Portolano Cavallo AnesuBryan & David Lee and Li, Attorneys-at-Law PUNUKA Attorneys & Solicitors Arthur Cox LNT & Partners Schellenberg Wittmer Ltd Ashurst LLP MinterEllison Schoenherr Blake, Cassels & Graydon LLP Moravčević, Vojnović i Partneri AOD Beograd in Shin & Kim LLC BUNTSCHECK Rechtsanwaltsgesellschaft mbH cooperation with Schoenherr Sidley Austin LLP DeHeng Law Offices MPR Partners | Maravela, Popescu & Asociații URBAN STEINECKER GAŠPEREC BOŠANSKÝ Dittmar & Indrenius MSB Associates Zdolšek Attorneys at law DORDA Rechtsanwälte GmbH Nagashima Ohno & Tsunematsu Table of Contents Expert Chapters Reform or Revolution? The Approach to Assessing Digital Mergers 1 David Wirth & Nigel Parr, Ashurst LLP The Trend Towards Increasing Intervention in UK Merger Control and Cases that Buck the Trend 9 Ben Forbes, Felix Hammeke & Mat Hughes, AlixPartners Q&A Chapters Albania Japan 18 Schoenherr: Srđana Petronijević, Danijel Stevanović 182 Nagashima Ohno & Tsunematsu: Ryohei Tanaka & & Jelena Obradović Kota Suzuki Australia Korea 27 MinterEllison: Geoff Carter & Miranda Noble 191 Shin & Kim LLC: John H. Choi & Sangdon Lee Austria Mexico 36 DORDA Rechtsanwälte GmbH: Heinrich Kühnert & 198 OLIVARES: Gustavo A. Alcocer & José Miguel Lisa Todeschini Lecumberri Blanco Bosnia & Herzegovina Montenegro 43 Schoenherr: Srđana Petronijević, Danijel Stevanović 205 Moravčević, Vojnović i Partneri AOD Beograd in & Minela Šehović cooperation with Schoenherr: Srđana Petronijević, Danijel Stevanović & Zoran Šoljaga Brazil 52 Pinheiro Neto Advogados: Leonardo Rocha e Silva & Nigeria José Rubens Battazza Iasbech 213 PUNUKA Attorneys & Solicitors: Anthony Idigbe, Ebelechukwu Enedah & Tobenna Nnamani Canada 60 Blake, Cassels & Graydon LLP: Julie Soloway & North Macedonia Corinne Xu 223 Schoenherr: Srđana Petronijević, Danijel Stevanović & Jelena Obradović China 70 DeHeng Law Offices: Ding Liang Norway 232 Advokatfirmaet Grette AS: Odd Stemsrud & Croatia Marie Braadland 83 Schoenherr: Ana Marjančić Romania European Union 239 92 MPR Partners | Maravela, Popescu & Asociații: Sidley Austin LLP: Steve Spinks & Ken Daly Alina Popescu & Magda Grigore Finland 107 Russia Dittmar & Indrenius: Ilkka Leppihalme & 247 ALRUD Law Firm: Vladislav Alifirov, Alexander Katrin Puolakainen Artemenko & Dmitry Domnin France 119 Serbia Ashurst LLP: Christophe Lemaire & Marie Florent 254 Moravčević, Vojnović i Partneri AOD Beograd in cooperation with Schoenherr: Srđana Petronijević, Germany Danijel Stevanović & Jelena Obradović 131 BUNTSCHECK Rechtsanwaltsgesellschaft mbH: Dr. Tatjana Mühlbach & Dr. Andreas Boos Singapore 264 Drew & Napier LLC: Lim Chong Kin & Dr. Corinne Greece Chew 141 MSB Associates: Efthymios Bourtzalas Slovakia India 276 151 URBAN STEINECKER GAŠPEREC BOŠANSKÝ: L&L Partners Law Offices: Gurdev Raj Bhatia & Ivan Gašperec & Juraj Steinecker Kanika Chaudhary Nayar Slovenia Ireland 284 162 Zdolšek Attorneys at law: Stojan Zdolšek & Arthur Cox: Richard Ryan & Patrick Horan Katja Zdolšek Italy 172 South Africa Portolano Cavallo: Enzo Marasà & Irene Picciano 293 Norton Rose Fulbright South Africa Inc: Rosalind Lake & Julia Sham Table of Contents Q&A Chapters Continued Sweden USA 304 Hannes Snellman Attorneys Ltd: Peter Forsberg, 355 Sidley Austin LLP: James W. Lowe & Elizabeth Chen David Olander & Johan Holmquist Vietnam Switzerland 364 LNT & Partners: Dr. Nguyen Anh Tuan, Tran Hai Thinh 311 Schellenberg Wittmer Ltd: David Mamane & Amalie & Tran Hoang My Wijesundera Zambia Taiwan 373 AMW & Co. Legal Practitioners: Nakasamba Banda- 320 Lee and Li, Attorneys-at-Law: Stephen Wu & Yvonne Chanda, Namaala Liebenthal & Victoria Dean Hsieh Zimbabwe Turkey 380 AnesuBryan & David: Patrick Jonhera, Itai Chirume & 328 ELIG Gürkaynak Attorneys-at-Law: Gönenç Bright Machekana Gürkaynak & Öznur İnanılır United Kingdom 336 Ashurst LLP: Nigel Parr, Duncan Liddell & Alexi Dimitriou 162 Chapter 17 Ireland Ireland Richard Ryan Arthur Cox Patrick Horan 1 Relevant Authorities and Legislation 1.4 Is there any other relevant legislation for mergers in particular sectors? 1.1 Who is/are the relevant merger authority(ies)? Media mergers are subject to a specific regime under Part 3A of the Competition Act, described further in the responses to The Competition and Consumer Protection Commission questions 2.7 and 4.3 below. (“CCPC”) is responsible for the promotion and enforcement of competition law in Ireland. The CCPC was established on 31 October 2014 when the functions of the Competition Authority 1.5 Is there any other relevant legislation for mergers and the National Consumer Agency were amalgamated into a which might not be in the national interest? single agency. The CCPC has sole responsibility for investigating notifiable Ireland has a specific regime for media mergers under Part 3A of mergers under Part 3 of the Competition Act 2002 (as amended) the Competition Act, described further in the responses to ques- (“Competition Act”). In addition to being subject to the CCPC tions 2.7 and 4.3 below. process, media mergers (as defined in the Competition Act) are subject to a separate process, involving the Minister for Media, 2 Transactions Caught by Merger Control Tourism, Arts, Culture, Sport and the Gaeltacht (“Minister for Legislation Media”). That process is described in more detail in response to question 2.7 below. 2.1 Which types of transaction are caught – in particular, what constitutes a “merger” and how is the 1.2 What is the merger legislation? concept of “control” defined? Irish merger control law is set out in Part 3 of the Competition For the purposes of Section 16 of the Competition Act, a merger Act. The Competition Act was substantially amended by the or acquisition arises if any of the following events occurs: Competition and Consumer Protection Act 2014 (“2014 Act”), ■ two or more undertakings, previously independent of one which introduced new jurisdictional thresholds, updated the another, merge; specific regime for media mergers and established a new national ■ one or more undertakings, or one or more individuals who competition authority, the CCPC. In addition, and as outlined already control one or more undertakings, acquire direct in question 2.4 below, the financial thresholds for notification or indirect control of the whole or part of one or more were increased with effect from 1 January 2019. The CCPC has other undertakings; and published a number of guidance papers on various aspects of the ■ the acquisition of part of an undertaking, although merger review process and on the interpretation of certain terms not involving an acquisition of a corporate legal entity, used in the Competition Act. involves the acquisition of assets (including goodwill) that constitute a business to which a turnover can be attributed. The Competition Act states that control is acquired by an indi- 1.3 Is there any other relevant legislation for foreign mergers? vidual or undertaking if they either become the holder of the rights or contracts themselves or acquire the power to exercise the rights derived from those rights or contracts. Control is There is currently no foreign investment control legislation generally commensurate with the concept of decisive influence in Ireland. However, the Minister for Enterprise, Trade and under the EU Merger Regulation, i.e. that it gives the acquiring Employment (“Minister for Enterprise”) has announced that undertaking the ability to affect the strategic commercial direc- the Government will introduce legislation to regulate foreign tion of the acquired undertaking or assets that constitute a busi- direct investment in Ireland. The Investment Screening Bill ness. Although not bound to do so, the CCPC generally follows 2020 is being introduced in the context of Regulation (EU) the approach to the concept of control as set out in the European 2019/452 of 19 March 2019 establishing a framework for the Commission’s Consolidated Jurisdictional Notice (“CJN”). screening of foreign direct investments into the European The definition of a merger/acquisition under the Competition Union. Act includes the acquisition of assets that constitute a business to which a turnover can be attributed. Therefore, Irish merger Merger Control 2021 © Published and reproduced with kind permission by Global Legal Group Ltd, London Arthur Cox 163 control can apply to transactions involving the acquisition of acquiring (and, where relevant, maintaining) joint control and, if property that generates rental income where the relevant turn- the target is a pre-existing company, the target company. over thresholds are met. There have been numerous examples of While there is no statutory definition of “turnover in the property transactions being notified to the CCPC since October State”, the CCPC has interpreted it to mean the value of services 2014, including IPUT plc/Deloitte House (M/18/043), SCIP Hotels/ provided or sales made to customers located in Ireland in the Connemara Coast Hotel (M/18/037) and Kennedy Wilson/Elysian relevant year. Thus, turnover of companies booked as Irish Building Cork (M/18/025). turnover for accounting/tax purposes but which does not derive from sales to customers
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