No. 17/1978:

MERGERS, TAKE-OVERS AND MONOPOLIES (CONTROL) ACT, 1978

ARRANGEMENT OF SECTIONS

1 Interpretation.

2 Application of Act.

3 Limitation on commencement of merger or take, over.

4 Right of purported vendor of shares to damages.

5 Notification of proposed mergers and take-overs to Minister.

6 Relevant period for purpose of section 3.

7 Reference to Examiner of proposed merger or take-over.

8 Report by Examiner to Minister.

9 Order by Minister prohibiting proposed merger or take-over.

10 Commission's enquiry and report on monopoly.

11 Order by Minister relating to monopoly.

12 Appeal to High Court against orders of Minister.

13 Provisions relating to orders under section 9 or 11.

14 Application of certain statutory provisions relating to amalgamation.

15 Annual report by Minister.

16 Amendment of Second Schedule to Act of 1972.

17 Expenses.

18 Short title.

SCHEDULE

AN ACT TO PROVIDE FOR THE CONTROL BY THE MINISTER FOR INDUSTRY, COMMERCE AND ENERGY IN THE INTERESTS OF THE COMMON GOOD OF CERTAIN TAKE-OVERS, MERGERS AND MONOPOLIES, TO EXTEND THE RESTRICTIVE PRACTICES ACT, 1972 , AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE AFORESAID MATTERS.

[3rd July, 1978]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act—

"the Act of 1972" means the Restrictive Practices Act, 1972 ; the Commission " means the Restrictive Practices Commission;

"conditional order" means an order under section 9 prohibiting a proposed merger or take-over except on conditions specified in the order;

"enterprise" means—

(i) a person or partnership engaged for profit in the supply or distribution of goods or the provision of services, including—

( a ) a society, including a credit union, registered under the Industrial and Provident Societies Acts, 1893 to 1971,

( b ) society registered under the Friendly Societies Acts, 1896 to 1977, and

( c ) society established under the Building Societies Act, 1976 , or

(ii) a holding company within the meaning of section 155 of the Companies Act, 1963 ;

"the Examiner" means the Examiner of Restrictive Practices;

"the Minister" means the Minister for Industry, Commerce and Energy;

"monopoly" means an enterprise or two or more enterprises under common control, which supply or provide, or to which is supplied or provided, not less than one-half of goods or services of a particular kind supplied or provided in the State in a particular year, according to the most recent information available on an annual basis, but does not include any enterprise at least 90 per cent. of whose output is exported from the State or any enterprise at least 90 per cent. of whose output comprises components for products which are exported from the State:

"the scheduled criteria" means the matters specified in the Schedule to this Act:

"service" includes any professional service, but does not include—

(i) any service provided by the holder of a licence under section 9 of the Central Bank Act, 1971 ,

(ii) any service provided by a trustee savings bank certified under the Trustee Savings Banks Acts, 1863 to 1965,

(iii) any service provided under a contract of employment,

(iv) the supplying of electricity,

(v) any transport service provided or operated by Córas Iompair Éireann,

(vi) any air service or service ancillary thereto,

(vii) any transport service provided by the holder of a licence under the Road Transport Act, 1932 , or the Road Transport Act, 1933 .

(viii) any service provided by a harbour authority within the meaning of the Harbours Act, 1946 , or by a pilotage authority constituted under the Pilotage Act, 1913, or

(ix) any service provided by a local authority within the meaning of section 2 of the Local Government Act, 1941 .

(2) For the purposes of this Act, a merger or take-over shall be deemed to be proposed when an offer capable of acceptance is made.

(3) ( a ) For the purposes of this Act, but subject to section 3, a merger or take-over shall be taken to exist when two or more enterprises, at least one of which carries on business in the State, come under common control.

( b ) Enterprises shall be deemed to be under common control if the decision as to how or by whom each shall be managed can be made either by the same person, or by the same group of persons acting in concert.

( c ) Without prejudice to paragraph (b), the acquisition by an enterprise (in this paragraph referred to as "the first enterprise") in another (in this paragraph referred to as "the second enterprise") which is a body corporate—

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

(ii) of 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—

(A) are not after the acquisition more than 30 per cent. of the total of such voting rights,

or

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

shall be deemed to bring those enterprises under common control.

( d ) For the purposes of paragraph (c)—

(i) "voting rights" do not include voting rights which arise only in specified circumstances; and

(ii) voting rights shall be deemed to be controlled by an enterprise when it can determine how the votes concerned shall be cast.

( e ) Subject to section 3, where the assets, including goodwill, (or a substantial part of the assets) of an enterprise are acquired by another enterprise, the acquisition shall be deemed to constitute a merger or take-over for the purposes of this Act if upon the acquisition a result of the acquisition is to place the second-mentioned enterprise in a position to replace (or substantially to replace) the first-mentioned enterprise in the business in which that enterprise was engaged immediately before the acquisition.

( f ) This subsection does not apply to a case where enterprises come under common control (or are deemed to come under common control) either because the person referred to in paragraph (b) is a receiver or liquidator acting as such or because the person making an acquisition referred to in paragraph (c) is an underwriter or jobber acting as such, or because the person making an acquisition referred to in paragraph (e) is a receiver or liquidator acting as such.

( g ) This subsection does not apply to two or more bodies corporate, each of which is a wholly-owned subsidiary of the same body corporate.

(4) In this Act a reference to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended.

(5) In this Act a reference to a subsection, paragraph, subparagraph or clause is to the subsection, paragraph, subparagraph or clause of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

2.—(1) ( a ) This Act shall apply to a proposed merger or take-over if in the most recent financial year the value of the gross assets of each of two or more of the enterprises to be involved in the proposal is not less than £1,250,000 or the turnover of each of those two or more enterprises is not less than £2,500,000.

( b ) For the purposes of this subsection, "turnover" does not include any payment in respect of value-added tax on sales or in respect of duty of excise.

(2) This Act shall apply to a monopoly where in the most recent S financial year the monopoly's sales or purchases of the goods or services concerned exceed £1,500.000.

(3) This Act shall not apply to enterprises coming under common control where this occurs solely as a result of a testamentary disposition or an intestacy.

(4) The Minister may from time to time by order amend subsection (1) or subsection (2) by the substitution for an amount mentioned in that subsection of another amount, not being in any case a smaller amount than the amount for which it is substituted.

(5) ( a ) Where he is of opinion that the exigencies of the common good so warrant, the Minister may by order declare that, notwithstanding subsection (1), this Act shall apply to a proposed merger or take-over of a particular class specified in the order and, upon the making of such an order, this Act shall apply to a proposed merger or take-over of that class.

( b ) The Minister may by order amend or revoke an order under this subsection.

(6) Every order under this section shall have effect on and from the date on which it is made and shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution confirming the order is not passed by each such House within the next 21 days after each House has sat after the order is laid before it, the order shall lapse, but without prejudice to the validity of anything previously done thereunder.

3.—(1) In relation to a proposed merger or take-over, title to any shares or assets concerned shall not pass until—

( a ) the Minister, in pursuance of section 7 (a), has stated in writing that he has decided not to make an order under section 9 in relation to the proposed merger or take-over, or

( b ) the Minister has stated in writing that he has made a conditional order in relation to the proposed merger or take-over, or

( c ) the relevant period within the meaning of section 6 has elapsed without the Minister's having made an order under section 9 in relation to the proposed merger or take-over,

whichever first occurs.

(2) A statement under subsection (1) (a) shall cease to have effect at the end of the period of 12 months beginning on the date of the statement if the enterprises the subject of the proposed merger or take-over referred to in the statement have not come under common control during that period.

4.—Where a purported sale of shares is rendered invalid under section 3, the purported vendor shall be entitled to recover from the purported purchaser any damages the purported vendor suffers by reason only of the invalidity, unless the purported purchaser satisfies the court that before the purported sale he had notified the purported vendor of circumstances relating to the proposed sale which gave rise to the possibility of such an invalidity.

5.—(1) Where a merger or take-over is proposed each of the enterprises involved and having knowledge of the existence of the proposal shall notify the Minister in writing of the proposal as soon as may be.

(2) Where, having received a notification under this section, 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, request such further information in writing from any one or more of the enterprises concerned.

(3) ( a ) Where there is a contravention of subsection (1) the person in control of an enterprise failing to notify the Minister shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or on conviction on indictment to a fine not exceeding £5,000.

( b ) For the purposes of this subsection the person in control of an enterprise shall be—

(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.

6.—(1) For the purpose of section 3, the relevant period in relation to a particular merger or take-over shall be the period of three months beginning on the date on which the Minister first receives a notification under section 5 (1) or, where the Minister requests further information under section 5 (2), the date of receipt by him of such information.

(2) Where a person involved in a proposed merger or take-over which is being investigated by the Examiner under section 8 applies, by virtue of that section, to the High Court for a declaration under section 15 of the Act of 1972, the period beginning on the date of the application and ending on the date of the decision of the High Court, or (where that decision is appealed) the date of the decision of the Supreme Court, on the application shall, notwithstanding any other provision of this section, not be reckoned in calculating the relevant period for the purposes of this section.

7.—Upon receipt of a notification under section 5 the Minister shall as soon as practicable either—

( a ) 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 ) refer the notification to the Examiner for investigation in relation to the scheduled criteria and inform those enterprises of such reference.

8.—(1) As soon as practicable after a reference to him under section 7, the Examiner shall investigate the proposal so referred and shall, before such date, if any, as the Minister specifies, furnish the Minister with a report of his investigation.

(2) A report of the Examiner under subsection (1) shall state his opinion as to whether or not the proposed merger or take-over concerned would operate against the common good in respect of the scheduled criteria.

(3) Section 15 of the Act of 1972, which relates to inspection of premises and records, shall for the purposes of an investigation under this section apply to a person authorised in writing by the Examiner.

9.—(1) ( a ) The Minister, having considered a report of the Examiner under section 8 (1), may, if he thinks that the exigencies of the common good so warrant, after consultation with any other Minister of the Government appearing to him to be concerned, by order prohibit a proposed merger or take-over either absolutely or except on conditions specified in the order.

( b ) The conditions referred to in paragraph (a) shall include a condition requiring the proposed merger or take-over to be effected within 12 months of the making of the order.

(2) An order under this section shall state the reasons for making the order and, in the case of a conditional order, may have retrospective effect.

(3) Before making an order under this section the Minister shall have regard to any relevant international obligations of the State.

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

(5) Every order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

10.—(1) ( a ) Where the Minister is of opinion that an enquiry should be held into an apparent monopoly—

(i) he may request the Commission through the Examiner to hold such an enquiry, and

(ii) the Commission shall comply with the request.

( b ) The following provisions shall apply in relation to a request under subsection (1) (a):—

(i) where the Minister so directs, a request shall be transmitted forthwith by the Examiner to the Commission;

(ii) a request may be accompanied by such report, if any, as the Minister may provide, and the report shall be transmitted by the Examiner to the Commission with the request;

(iii) nothing in this subsection shall be construed as preventing the Examiner from making available to the Commission any relevant information in his possession.

(2) Where the Examiner states in a report under section 16 (1) of the Act of 1972 that he is of opinion that a monopoly exists which should be the subject of an enquiry by the Commission, or where the Commission holds an enquiry pursuant to a request under subsection (1), a report of the Commission under section 5 of the Act of 1972 of an enquiry held under that section shall state whether in the opinion of the Commission—

( a ) a monopoly exists,

( b ) if it does, it prevents or restricts competition or endangers the continuity of supplies or services or restrains trade or the provision of any service, or is likely to do any of these things,

( c ) any interference or likely interference with competition, the provision of services or the continuity of supplies or services or any restraint of trade or of the provision of a service such is are mentioned in paragraph (b) is or would be unfair or operates or would operate against the common good.

(3) Any enquiry held by the Commission by virtue of this section shall be deemed to be an enquiry under section 5 of the Act of 1972.

11.—(1) The Minister, having considered a report of the Commission (being a report referred to in section 10), may, if he thinks that the exigencies of the common good so warrant, after consultation with any other Minister of the Government appearing to him to be concerned, by order either—

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

( b ) require the division, in a manner and within a period specified in the order, of the monopoly by a sale of assets or as otherwise so specified.

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

(3) Before making an order under this section the Minister shall have regard to any relevant international obligations of the State.

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

(5) An order under this section shall not have effect unless it is confirmed, by Act of the Oireachtas but, upon being so confirmed, it shall have the force of law in accordance with its terms.

12.—(1) Where the Minister makes an order under section 9 (1) or 11 (1), an appeal on a point of law may be made to the High Court against the order within one month of the coming into effect of the order by any enterprise referred to in the order.

(2) Where the High Court allows an appeal under this section, the Minister shall by order amend or revoke (as may be appropriate) the order the subject of the appeal as soon as practicable.

(3) Where pursuant to subsection (2) the Minister makes an order following an appeal, section 9 (5) (in the case of an appeal against an order under section 9 (1)) or section 11 (5) (in the case of an appeal against an order under section 11 (1) ) shall not apply to the order under subsection (2).

(4) An appeal against a decision of the High Court under this section shall not lie to the Supreme Court.

13.—(1) ( a ) It shall be lawful for a court of competent jurisdiction to grant an injunction on the motion of the Minister or of any other person to enforce compliance with the terms of an order under section 9 or 11 for the time being in force.

( b ) This subsection shall not affect any other right of the Minister or other person to bring proceedings (whether civil or criminal) for the enforcement of compliance with the terms of an order under section 9 or 11.

(2) A person who contravenes (whether by act or omission) a provision of an order under section 9 or 11 for the time being in force shall be guilty of an offence under this section and shall be liable—

( a ) on summary conviction, to a fine not exceeding £500 (together with, in the case of a continuing offence, a fine new exceeding £100 for every day on which the offence is continued) or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both such fine and such imprisonment, or

( b ) on conviction on indictment, to a fine not exceeding £5,000 together with, in the case of a continuing offence, a fine not exceeding £500 for every day on which the offence is continued) or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(3) ( a ) Where a person is convicted of an offence under this section by reason of his failure, neglect or refusal to comply with a provision in an order requiring him to perform a specified act within a specified period or before a specified date, and the act remains, after the date of conviction, unperformed by him, the person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100, or on conviction on indictment to a fine not exceeding £500, for each day, after the date of the first-mentioned conviction, on which the act remains unperformed by him or, at the discretion of the court, to imprisonment for a term not exceeding six months.

( b ) An offence under this section shall be a continuing offence and, accordingly, fresh proceedings in respect thereof may be taken from time to time.

(4) Every person who aids, abets or assists another person, or conspires with another person, to do anything (whether by way of act or of omission). the doing of which is an offence by virtue of subsection (2) or (3) shall himself be guilty of an offence under this section and shall be liable on conviction to the penalties specified in subsection (2) or (3).

(5) ( a ) Summary proceedings in relation to an offence under this section may be prosecuted by the Minister.

( b ) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this section may be instituted within twelve months from the latest day on which the offence was committed.

(6) Where an offence under this section which is committed by a body corporate or by a person purporting to act on behalf of a body corporate or an unincorporated body of persons is proved to have been so committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who is a director, manager, secretary, member of the committee of management or other controlling authority of any such body, or who is any other similar officer of any such body, that person shall also be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

14.—(1) Nothing in the Companies Acts, 1963 to 1977, the Industrial and Provident Societies Acts, 1893 to 1971, the Building Societies Act 1976 , or the Friendly Societies Acts, 1896 to 1977, shall be construed as relieving an enterprise of the obligation to comply with section 5.

(2) An order under section 201 or 203 of the Companies Act, 1963 , shall not be made in respect of a proposed amalgamation (being a proposed merger or take-over to which this Act applies) until either—

( a ) the Minister has stated in writing that he has decided not to make an order under section 9 in relation to the proposed amalgamation, or

( b ) the Minister has stated in writing that he has made a conditional order in relation to the proposed amalgamation, or

( c ) the relevant period within, the meaning of section 6 has elapsed without the Minister's having made an order under section 9 in relation to the proposed amalgamation,

whichever first occurs.

(3) ( a ) A copy of a special resolution under section 53 of the Act of 1893, providing for the amalgamation of, or the transfer of engagements between, two or more societies registered under that Act (being a proposed merger or take-over to which this Act applies) shall not be registered under section 56 of the Act of 1893 until either—

(i) the Minister has stated in writing that he has decided not to make an order under section 9 in relation to the proposed amalgamation or transfer of engagements, or

(ii) the Minister has stated in writing that he has made a conditional order in relation to the proposed amalgamation or transfer of engagements, or

(iii) the relevant period within the meaning of section 6 has elapsed without the Minister's having made an order under section 9 in relation to the proposed amalgamation or transfer of engagements,

whichever first occurs.

( b ) In this subsection "the Act of 1893" means the Industrial and Provident Societies Act, 1893.

(4) ( a ) A copy of a special resolution under section 70 of the Act of 1896, providing for the amalgamation of, or the transfer of engagements between, two or more societies registered under that Act (being a proposed merger or take-over to which this Act applies) shall not be registered under section 75 of the Act of 1896 until either—

(i) the Minister has stated in writing that he has decided not to make an order under section 9 in relation to the proposed amalgamation or transfer of engagements, or

(ii) the Minister has stated in writing that he has made a conditional order in relation to the proposed amalgamation or transfer of engagements, or

(iii) the relevant period within the meaning of section 6 has elapsed without the Minister's having made an order under section 9 in relation to the proposed amalgamation or transfer of engagements,

whichever first occurs.

( b ) In this subsection "the Act of 1896" means the Friendly Societies Act, 1896.

(5) ( a ) A union of two or more societies which are registered under the Act of 1976. a transfer of engagements between two such societies or an undertaking by one such society to fulfill the engagements of another such society (being in each case a proposed merger or take-over to which this Act applies) shall not be registered under section 25 (2), 26 (2) or section 27 (6) of the Act of 1976 until either—

(i) the Minister has stated in writing that he has decided not to make an order under section 9 in relation to the proposed union, transfer or undertaking, or

(ii) the Minister has stated in writing that he has made a conditional order in relation to the proposed union transfer or undertaking, or

(iii) the relevant period within the meaning of section 6 has elapsed without the Minister having made an order under section 9 in relation to the proposed union, transfer or undertaking,

whichever first occurs.

( b ) In this subsection "the Act of 1976" means the Building Societies Act, 1976 .

15.—(1) The Minister shall furnish to each House of the Oireachtas an annual report stating the number and the nature of investigations under section 8.

(2) It shall be lawful for the Minister to omit from an annual report under this section any information the publication of which would in his opinion materially injure the legitimate interests of an enterprise, if the information is not essential to the full understanding of the investigation to which it relates, and a statement indicating the general character of information so omitted shall be included the report.

16.—Paragraph 8 of the Second Schedule to the Act of 1972 is hereby amended by the insertion in subparagraph (1) after "under section 14" and in subparagraph (2) after "under this Act" of "or under the and Mergers Take-overs and Monopolies (Control) Act, 1978 ", and that paragraph as so amended is set out in the Table to this section.

TABLE

8.—(1) No person shall disclose information available to him through being present at an investigation held by the Examiner under section 14 or under the Mergers. Take-overs and Monopolies (Control) Act, 1978.

(2) Subparagraph (1) does not apply to a communication made by the Examiner or an authorised officer in the execution of his duties under this Act or under the Mergers, Take-overs and Monopolies (Control) Act. 1978. or to the disclosure of information in a report by the Examiner or for the purpose of legal proceedings under this Act or under the Mergers Take-overspend Monopolies (Control) Act, 1978.

(3) If any person contravenes this paragraph he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred, pounds or imprisonment for a period not exceeding six months or, at the discretion of the court, to both such fine and imprisonment.

17.—Any expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance. be paid out of moneys provided by the Oireachtas.

18.—This Act may be cited as the Mergers. Take-overs and Monopolies (Control) Act, 1978.

SCHEDULE

Criteria for purposes of section 7 (b) and 8 (2)

( a ) The extent to which the proposed merger or take-over would be likely to prevent or restrict competition or to restrict trade or the provision of any service.

( b ) The extent to which the proposed merger or take-over would S be likely to endanger the continuity of supplies or services.

( c ) The extent to which the proposed merger or take-over would be likely to affect employment and would be compatible with national policy in relation to employment.

( d ) The extent to which the proposed merger or take-over is in accordance with national policy for regional development.

( e ) The extent to which the proposed merger or take-over is in harmony with the policy of the Government relating to the rationalisation, in the interests of greater efficiency, of operations in the industry or business concerned.

( f ) Any benefits likely to be derived from the proposed take-over or merger and relating to research and development, technical efficiency increased production, efficient distribution of products and access to markets.

( g ) The interests of shareholders and partners in the enterprises involved.

( h ) The interests of employees in the enterprises involved.

( i ) The interests of the consumer.

ACTS REFERRED TO