Merger Control and COVID-19: Changes to Merger Notification Process

Due to the COVID-19 crisis, the Irish Competition and Consumer Protection Commission (the “CCPC”) is developing a flexible approach to minimise disruption to the merger review process.  The CCPC has indicated that they hope COVID-19 will not have a material impact on their merger review process, however they have indicated that the collection and analysis of public information that takes place during the assessment process may be impacted.

Interim Difficulties Expected

The CCPC has stated its services are expected to experience challenges in collecting and assessing information from third parties, such as customers, competitors and suppliers, in the coming weeks due to an increase of staff that are now largely working remotely.  The CCPC have advised that the normal statutory procedures and deadlines still apply to mergers and that there has been no formal changes to the notification process or the applicable timeframes.  The CCPC is however requesting that merging parties try and delay merger notification and filling where possible, particularly for non-urgent deals until further notice, and is establishing a temporary process for electronic notification of mergers.  Further flexibility to the process is being sought on foot of warnings released of expected slowdowns in the merger review process.

Temporary Changes to the Notification Process

The CCPC is requesting that merging parties try and delay merger notification and filling where possible, particularly for non- urgent deals until further notice, and is establishing a temporary process for electronic notification of mergers.  Notification forms and all supporting documents should be submitted electronically, before 4.30pm, to mergers@ccpc.ie.  The CCPC are further asking all notifying parties to contact them prior to making electronic submissions and in circumstances where parties are having difficulty with submitting an electronic notification.

Hard copy filings of merger notifications still remain possible but will become increasingly difficult due to an increase of staff working remotely.  Merging parties need to be aware that the normal statutory timelines will continue to apply and that there remains an obligation to notify a transaction that meets the relevant statutory thresholds, however the CCPC have stated that parties should be aware that there may be significant delays in processing recently notified deals in coming weeks.  The CCPC have further reminded parties that implementing a deal without notifying constitutes a criminal offence, and any such deals are deemed void under section 19(2) of the Competition Act 2002.  Furthermore, the merger notification fee of €8,000 payable by way of Electronic Funds Transfer remains unchanged.

Affect of Temporary Measures Introduced to the Merger Notification Process

Importantly, the CCPC does not have the power to extend the statutory review deadlines even amidst the COVID-19 pandemic, and continues to be bound by the statutory timeframe provided for in the Competition Act, 2002, as amended, where the CCPC has 30 working days in which to conduct its initial, Phase 1, investigation.  However, given the difficulties that are likely to be faced by CCPC at this time, it may seek to enact its general power to extend the review process for deals notified during the COVID-19 outbreak by issuing formal requests for further information.  These requests will essentially stop the statutory clock, whereby the 30 working day period will be restarted from the time the CCPC has received final responses to all of its requests for information.

It is expected that the CCPC will continue to review the situation and measures put in place over the coming weeks and will issue updates to notifying parties of the potential effect of any new measures introduced in order to manage the expectations and obligations on the part of notifying parties.

How we can help

For further information, please feel free to contact Joe McVeigh on 01 440 8300 / jmcveigh@bhsm.ie or Dasith Vithanage on 01 440 8300 / dvithanage@bhsm.ie.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.