The lowering of the Irish merger control thresholds towards the back end of 2014 prompted a significant uptick in the number of merger filings in 2015 (78 in total). The annual average number of filings over the previous five years was 39. It is undoubtedly the case that the lowering of the thresholds has cast the net wider and that net is catching an increasing number of both domestic and ‘foreign-to-foreign’ transactions.
These thresholds are, however, within the crosshairs, as the general consensus is that smaller, domestic transactions, which have little or no effect on competition in the Republic of Ireland, are being unnecessarily caught. However, any amendment of the thresholds would require new primary legislation. It is unlikely, in our view, that such legislation will emerge during 2017.
The 2015 total – the high water mark since 2007 – could well have been exceeded in 2016 were it not for the cooling effect of the decision by the UK to leave the European Union. The uncertainty surrounding the approach of the Trump administration towards foreign investment rules/trade deals also played a part.
In summary, 2016 was a very busy year for the mergers team at the Competition and Consumer Protection Commission, as illustrated by the headline statistics profiled in this review.
Six ‘media merger’ determinations by the relevant Irish Minister also emerged during 2016. A number of transactions with Irish links were notified to and cleared unconditionally by the European Commission during 2016, including the ABP Group/Fane Valley Group/Slaney Foods and McKesson/UDG Healthcare transactions on which we advised.
From the broader competition perspective, the EU Damages Directive is likely to be transposed into Irish law in the early part of 2017. On the State aid side, the Apple taxation case continues to sit in the limelight in Ireland. The Irish Department of Finance filed its appeal at the start of November 2016. It was reported that the Commission had asked for the appeal to be amended, on the basis that it was too long. It was also reported that Apple CEO, Tim Cook, declined an invitation to appear at an Irish Parliament finance committee to discuss the Commission’s ruling.
So, interesting times lie ahead for 2017.
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