Irish Competition Law Update: What’s New?

H1 CCPC Merger Notifications.  In the first half of 2020 (“H1 2020”), the Competition and Consumer Protection Commission (the “CCPC”) received 18 merger notifications – a nominal increase on the 17 filings received in the first half of 2019 (“H1 2019”), but still a significant drop as compared with the 50 filings received in the first half of 2018.

The significant drop continues to reflect the new (higher) financial thresholds for mandatory CCPC filings which came into effect on 1 January 2019 (see our previous article  here).  Interestingly, no “media mergers” (requiring mandatory back-to-back notifications to both the CCPC and the Department of Communications, Climate Action & Environment) were notified in H1 2020 (noting, however, that two such media mergers were notified in July 2020 – M/20/021 Reach / ISL and M/20/022 Greencastle / Maximum Media Network – which are currently under review by the CCPC).

As of 1 July 2020, 12 out of the 18 notified mergers have received clearance by the CCPC after a standard Phase 1 review period, with another three of these mergers – which were related transactions which were subject to an extended Phase 1 review process (M/20/009 – Portlon (Parma)/Hermitage; M/20/010 – Portlon (Parma)/ Blackrock and M/20/015 – Portlon/Blackrock (Tullycorbett/Xroon)) – receiving clearance on 29 July 2020.  Another two of the 18 mergers continue to go through an extended Phase I review process (M/20/005 – ESB/Coillte (JV) and M/20/012 – Eason/Dubray Books) and only one of the 18 mergers notified in 2020 has been subject to a Phase 2 review (M/20/003 – Link Group/Pepper).

The average review period for standard Phase 1 cases in H1 2020 was 25 working days, as against a statutory deadline of 30 working days – an increase from an average of 24 working days in H1 2019.  This will, however, be due in part to the impact of Covid on the CCPC’s internal review process (which have otherwise remained unaffected following the CCPC’s acceptance of electronic submissions since March 2020).

The review period for the three extended Phase 1 cases that were cleared on 29 July 2019 was 91 working days (taking into account the two longer review periods given that they were related cases) and the review period for the other two ongoing extended Phase 1 cases is 132 working days (M/20/005 – ESB/Coillte (JV)) and 101 working days (M/20/012 – Eason/Dubray Books) and counting (as of today’s date).  This demonstrates the increased burden that parties experience in the event that the CCPC extends the Phase 1 review process by issuing a formal requirement for further information (which has the effect of stopping and then restarting the Phase 1 clock once the parties have complied with such a request).

CCPC’s final decision in relation to Kings Laundry/Berendsen

On 8 July 2020, the CCPC announced the conclusion of its review of the proposed acquisition of Kings Laundry Limited (“Kings Laundry”) by Berendsen Ireland Limited (“Berendsen”), nearly two years after it was first notified it to the CCPC. 

The transaction was first notified to the CCPC on 7 August 2018.  After a lengthy Phase 2 review process, the CCPC approved the transaction on 8 July 2019 subject to certain binding commitments that had been offered by the parties to address the competition concerns raised by the CCPC in respect of the healthcare market where the transaction would reduce the number of outsourced flat linen rental and maintenance service providers from three to two.  These commitments – which were overseen by a monitoring trustee that was appointed on 24 July 2019 – required the parties to divest certain healthcare contracts held by Berendsen to a suitable third-party purchaser to be approved by the CCPC.  Implementation of the main transaction was therefore subject to the CCPC’s approval of a third-party buyer of the divestment business.

On 31 January 2020, the CCPC approved Linencare as a third-party purchaser of the healthcare contracts subject to Berendsen fulfilling the following conditions:

(i) that Linencare had achieved the RABC accreditation;

(ii) that the final transitional services agreement (“TSA”) did not raise any competition concerns; and

(iii) that each healthcare customer has consented to transferring the healthcare contract to Linencare.

Following submissions by Berendsen and confirmation by the monitoring trustee, the CCPC confirmed on 26 June 2020 that Berendsen had fulfilled the three conditions governing its approval of Linencare as a suitable third-party purchaser such that Berendsen could complete the sale of the divestment business to Linencare as well as complete the main transaction – namely, its acquisition of Kings Laundry – nearly two years after it was first notified to the CCPC.

Overall, Berendsen/King’s Laundry raises a number of interesting practice points:

• First, the possible total length of the CCPC’s Phase 2 process, especially where remedies are required, with the CCPC’s substantive review and subsequent remedies process each taking around one year in Berendsen/King’s Laundry – so two years in total.
• Second, the timing implications of an “up-front buyer” requirement in the CCPC’s remedies process (noting this requirement can be imposed during both Phase 1 and Phase 2 remedies processes where there are concerns about the potential pool of prospective purchasers or the interim viability of the divestment business).  The imposition of such requirement prevents the parties from closing the main transaction until the sale of the divestment business is complete. – this extended completion of the main transaction in Berendsen/King’s Laundry by one year.
• Third, the CCPC’s explicit requirement that Berendsen demonstrate that the TSA does not itself raise competition concerns.  This follows on from specific concerns raised by a number of authorities in recent years that merging parties can use TSAs to undermine the viability and competitive force of the remedy taker.   

CCPC Publishes Annual Report 2019

On 30 July 2020, the CCPC published its Annual Report 2019, which is its fifth such report since the CCPC was established in 2014.  Below are some of the key highlights:

• Merger control:
  • The sections in the Annual Report on merger control activity contain a helpful overview of the CCPC’s 2019 activity, although the CCPC’s overview largely mirrors our own previous briefings and contains no new insights.
     
  • The CCPC notes that 47 mergers were notified in 2019 (a 52% decrease when compared to 2018), with nine mergers requiring an extended Phase 1 review and two mergers requiring a Phase 2 investigation, namely Berendsen/King’s Laundry (summarised above) and LN-Gaiety/MCD (see our previous briefing here). 
     
  • The CCPC also reiterates that 2019 saw its first criminal prosecution for “gun-jumping” (ie, failure to notify a notifiable merger prior to clearance) of Armalou Holdings Limited (which ultimately benefited from the application of the Probation Act 1907 subject to making a donation of €2,000 to a specified charity). 
     
• Competition enforcement:
  • the CCPC notes its ongoing competition law investigations, including in the private motor insurance, secondary ticketing and public transport sectors (which remain ongoing in 2020). 
     
  • The CCPC’s investigation in relation to alleged competition law issues in the beef sector which was ongoing in 2019 was recently closed in June 2020 without any CCPC enforcement action. 
     
  • The CCPC also notes an ongoing investigation into a UK furniture wholesaler which required its Irish retailers not to charge retail prices before the wholesaler’s Suggested Retail Prices highlighting the CCPC’s focus on alleged resale price maintenance (or RPM) issues in common with other EU competition authorities. 
     
• Competition law policy: of particular note are the CCPC’s comments in relation to the Government’s transposition of the ECN+ Directive by February 2021, which is expected to significantly enhance the CCPC’s competition enforcement powers through the introduction of administrative enforcement regime including powers to impose non-criminal financial sanctions directly on companies (without needing to initiate proceedings before the Irish courts).  The CCPC notes that it is strongly supportive of the aims and contents of the ECN+ Directive noting that most other EU jurisdictions already have an administrative enforcement regime and that Ireland’s current regime is therefore a outlier compared with the rest of Europe.  Further developments are expected in the coming months noting the impending February 2021 deadline.

This article was co-authored by  Kate McKenna, Calum Warren and Laura McDonnell of the EU, Competition and Regulatory Group at Matheson.