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Frequently Asked Questions

  1. 1. What is a media merger?
  2. 2. What is the timeline for the media mergers process?
  3. 3. What is the threshold for a media merger notification?
  4. 4. How do I notify a proposed media merger?
  5. 5. What is the role of the Competition and Consumer Protection Commission?
  6. 6. What is a pre-notification meeting?


 

1. What is a media merger?

A media merger is defined in Part 3A of the Competition Act 2002 (as amended by the Competition & Consumer Protection Act 2014) (the Competition Act), the extracted text of which can be found here.

Three criteria emerge from this definition:

Criterion of the involvement of more than one media business

For a merger to be deemed a media merger, either two or more of the undertaking parties must carry on a media business in Ireland or one of the undertaking parties must carry on a media business in Ireland and at least one other undertaking party must carry on a media business in another country.

Criterion of commercial activity

An undertaking party which has a physical presence in Ireland and is engaged in any commercial activity or has made sales in the State equal to or greater than €2 million in the most recent financial year will be deemed to carry on a media business in the State.

This criterion applies by analogy when determining if an undertaking party carries on a media business outside Ireland.

Criterion of media business

Not all activities which could be deemed to constitute "media" are deemed to be "media businesses" by the Competition Act. The four activities which are deemed "media businesses" by the Act are as follows:

  • Publishing newspapers, magazines focused on news and current affairs, etc., offline and online.
  • Providing a broadcasting service by any means.
  • Providing news and current affairs programme material to a broadcasting service.
  • Providing news and current affairs material online regardless of format where the provider has editorial control over this material.

A proposed merger must meet all three criteria to be deemed a media merger.

2. What is the timeline for the media mergers process?

An overview of the timeline of the media mergers process can be found here.

3. What is the threshold for a media merger notification?

If a merger is deemed to be a media merger, then it must be notified to the Competition and Consumer Protection Commission, regardless of any turnover thresholds for notification that exist for non-media mergers.

This requirement exists as media mergers are specified in Statutory Instrument No. 122 of 2007 as a class of mergers that must always be notified to the Commission, as provided for by s. 18(5) of the Competition Act 2002 (as amended).

4. How do I notify a proposed media merger?

Proposed media mergers must be notified to the Competition and Consumer Protection Commission in the first instance. Guidance on this notification process can be found here.

Should the Commission clear a proposed media merger on competition grounds then notification must be made to the Minister for Communications, Climate Action and Environment within 10 working days of the Commission's determination. Guidance on this notification process and the Notification Form can be found here.

5. What is the role of the Competition & Consumer Protection Commission?

The role of the Competition and Consumer Protection Commission is limited to the examination the competition elements of proposed media mergers in order to determine if a proposed merger would result in a substantial lessening of competition for goods and services in any market.

The Minister for Communications, Climate Action and Environment (the Minister) is responsible for examining the media plurality elements of proposed media mergers to determine the impact of a proposed media merger on media plurality in Ireland. The Department for Communications, Climate Action & Environment (the Department) carries out this examination function on behalf of the Minister. The Minister makes his determinations on the basis of such examinations by the Department.

6. What is a pre-notification meeting?

In accordance with the statutory Guidelines on Media Mergers, which can be found here, the Department for Communications, Climate Action and Environment (the Department) facilitates pre-notification meetings with the undertaking parties to a proposed media merger. The purpose of such meetings is threefold:

  • To allow the undertaking parties to familiarise themselves with the media mergers process.
  • To enable the Department to familiarise itself with the proposed media merger prior to a formal notification.
  • To allow the undertaking parties to seek flexibility around the information requirements in the Notification Form, if appropriate.

7. In what circumstances is flexibility granted in respect of the information requirements of the media mergers notification form?

The function of the media mergers regime is not to gather information about undertaking parties to a proposed media merger.

Given the vast array of media businesses and their varying business models, certain information requirements in the media mergers Notification Form may not be applicable or may have little bearing on the proposed media merger. In such cases, the Department for Communications, Climate Action and Environment (the Department) may grant flexibility around these information requirements. This flexibility must be sought by the undertaking parties and granted by the Department prior to a formal notification.

The Department retains the right, in accordance with s. 28D(3) of the Competition Act 2002 (as amended), to require undertaking parties to provide further information.

8. What is a Phase 1 media merger examination?

A Phase 1 Media Merger Examination is the initial examination of a notification of a proposed media merger by the Minister for Communications, Climate Action and Environment (the Minister). Under s. 28D of the Competition Act 2002 (as amended), the Minister has 30 working days to examine a notified media merger and to determine either:

  • That the media merger may be put into effect,
  • That the media merger may be put into effect with conditions, or,
  • That they intend to request the Broadcasting Authority of Ireland to conduct a full, or Phase 2, examination of the proposed media merger.

The Department for Communications, Climate Action & Environment (the Department) carries out this examination function on behalf of the Minister. The Minister makes his determinations on the basis of such examinations by the Department.

9. What does the Minister consider in a Phase 1 examination?

In accordance with s. 28D of the Competition Act 2002 (as amended) (the Competition Act), the Minister for Communications, Climate Action and Environment (the Minister) considers the following matters in a Phase 1 Examination:

  • The relevant criteria, as defined by s. 28A of the Competition Act.
  • The statutory Guidelines on Media Mergers issued by the Minister.
  • Submissions made to, and information provided to, the Minister by the undertaking parties to a proposed media merger.
  • If applicable, the determination of the Competition & Consumer Protection Commission with respect to its competition examination of the same proposed media merger.
  • If applicable, the determination of the European Commission with respect to its competition examination of the same proposed media merger.
  • Reports published by the Minister in accordance with the Competition Act.
  • Reports published by the Broadcasting Authority of Ireland in accordance with the Competition Act.

10. What are the relevant criteria?

The relevant criteria are defined by s. 28A of the Competition Act 2002 (as amended) and are as follows:

  • "The likely effect of the media merger on the plurality of the media in the State;
  • The undesirability of allowing any one undertaking to hold significant interests within a sector or across different sectors of media businesses in the State;
  • The consequences for the promotion of plurality of the media in the State of intervening to prevent the media merger or attaching conditions to the approval of the media merger;
  • If appropriate, the adequacy of the following to protect the public interest in plurality of the media in the State.
    • The scale and reach of RTÉ and TG4.
    • Part 6 of the Broadcasting Act 2009;
    • The Ownership and Control Policy of the Broadcasting Authority of Ireland for the time being in force.
  • The Proposed Commitments which the undertakings are prepared to offer and which the Minister for Communications, Climate Action and Environment (the Minister) may incorporate pursuant to s. 28D(5) or s. 28E(10) in his or her determination
  • The extent to which the public interest can be secured by the imposition of any conditions by the Minister under s. 28D or s. 28G."

11. What conditions can the Minister impose if they allow a media merger to be put into effect following a Phase 1 examination?

Following a Phase 1 media merger examination, the Minister for Communications, Climate Action and Environment (the Minister) shall make one of the following determinations:

  • That the media merger may be put into effect,
  • That the media merger may be put into effect with conditions, or,
  • That they intend to request the Broadcasting Authority of Ireland to conduct a full, or Phase 2, examination of the proposed media merger.

Should the Minister determine to allow a proposed media merger to be put into effect with conditions, then the conditions the Minister can impose at this stage are limited to those proposed as commitments by the undertaking parties to the proposed media merger in accordance with s. 28D(5) of the Competition Act 2002 (as amended).

12. What is a Phase 2 media merger examination?

Following a Phase 1 Media Merger Examination, the Minister for Communications, Climate Action and Environment (the Minister) may request the Broadcasting Authority of Ireland (the Authority) to conduct a full, or Phase 2, examination of a proposed media merger.

The Authority shall have 80 working days from the date of the Minister's request to make a report to the Minister, detailing its consideration of the proposed media merger and containing a recommendation as to whether the proposed media merger should be permitted to be put into effect, with or without conditions, or should not be permitted to be put into effect.

13. What is the process of a Phase 2 media merger examination?

Following receipt of the Minister for Communications, Climate Action and Environment's (the Minister) request to conduct a Phase 2 Media Merger Examination, the Broadcasting Authority of Ireland (the Authority) shall:

  • Publish the request on their website.
  • Invite submissions from the public for a window of 20 working days from the date of publication of the request.
  • Invite a submission from the relevant Joint Oireachtas Committee.

The Authority shall have 80 working days from the date of the Minister's request to make a report to the Minister, detailing its consideration of the proposed media merger and containing a recommendation as to whether the proposed media merger should be permitted to be put into effect, with or without conditions, or should not be permitted to be put into effect.

Not later than 30 working days before providing its report and recommendation to the Minister, the Authority shall provide a draft report and recommendation to the undertaking parties to the proposed media merger and invite the undertakings to respond within 10 working days from the date of receipt.

14. What does the Broadcasting Authority Of Ireland consider in a Phase 2 examination?

In accordance with s. 28E(6) of the Competition Act 2002 (as amended) (the Competition Act), the Broadcasting Authority of Ireland (the Authority) considers the following matters in a Phase 2 Examination:

  • The relevant criteria, as defined by s. 28A of the Competition Act.
  • The statutory Guidelines on Media Mergers issued by the Minister.
  • Submissions made to, and information provided to, the Minister for Communications, Climate Action and Environment (the Minister) by the undertaking parties to a proposed media merger during the Phase 1 examination.
  • Submissions made to, and information provided to, the Authority by the undertaking parties to a proposed media merger.
  • If applicable, the determination of the Competition & Consumer Protection Commission with respect to its competition examination of the same proposed media merger.
  • If applicable, the determination of the European Commission with respect to its competition examination of the same proposed media merger.
  • If applicable, the opinion of the advisory panel appointed by the Minister to assist the Authority.
  • Any response by the undertakings to the draft report and recommendation.
  • Reports published by the Minister in accordance with the Competition Act.
  • Reports published by the Authority in accordance with the Competition Act.

15. What is an Advisory Panel?

Following a Phase 1 Media Merger Examination, the Minister for Communications, Climate Action and Environment (the Minister) may request the Broadcasting Authority of Ireland (the Authority) to conduct a full, or Phase 2, examination of a proposed media merger.

The Minister may also appoint an Advisory Panel to assist Authority in conducting its Phase 2 examination. This assistance takes the form of an opinion that an Advisory Panel shall provide to the Authority on the application of the relevant criteria to the proposed media merger in question.

An Advisory Panel can consist of between three and five persons, each of whom is an expert in law, journalism, media, business, or economics. The Advisory Panel has 20 working days from the date of its formation to provide its opinion to the Authority. Such an opinion must be provided to the Authority prior to the Authority providing its draft report and recommendation to the undertaking parties to the proposed media merger.

16. In what circumstances would the Minister appoint an Advisory Panel?

The Minister for Communications, Climate Action and Environment (the Minister) may appoint an Advisory Panel to assist the Broadcasting Authority of Ireland (the Authority) in conducting a Phase 2 examination of a proposed media merger if they deem such appointment necessary.

Potential reasons the Minister may deem it necessary to appoint and Advisory Panel are as follows:

  • If the details of a proposed media merger require specialised expertise in order for a Phase 2 examination to be completed in a thorough manner.
  • If the Minister considers that the Authority requires additional expertise in conducting a Phase 2 examination.
  • If the required expertise to conduct a Phase 2 examination in a thorough manner is unavailable to the Authority by the limitations of its regulatory remit.

17. What determinations can the Minister make following a Phase 2 examination?

Following a Phase 2 examination, the Minister for Communications, Climate Action and Environment shall determine that a proposed media merger:

  • May be put into effect,
  • May be put into effect with conditions, or,
  • May not be permitted to be put into effect.

18. What happens if the Minister refuses to allow a proposed media merger to proceed following a Phase 2 examination?

Following a Phase 2 examination, should the Minister for Communications, Climate Action and Environment (the Minister) determine that a proposed media merger may not be permitted to be put into effect, then the acquisition, merger or joint venture shall cease.

As provided for by s. 28I of the Competition Act 2002 (as amended), it is an offence for undertaking parties to a proposed media merger to not comply with the determination of the Minister.

19. What conditions can the Minister impose if they allow a media merger to be put into effect following a Phase 2 examination?

Following a Phase 2 examination, should the Minister for Communications, Climate Action and Environment (the Minister) determine that a proposed media merger may be put into effect with conditions, the conditions that they may impose are not limited to those that may be recommended by the Broadcasting Authority of Ireland nor those that may be derived from commitments offered by the undertaking parties to a proposed media merger.

The Minister may impose any condition they see fit with due regard for the principles of proportionality, enforceability and fairness at this stage. Further information regarding conditions that the Minister may impose can be found in the Guidelines on Media Mergers here.

20. Can the conditions imposed by the Minister following a Phase 2 examination be reviewed?

If, following a Phase 2 examination, the Minister for Communications, Climate Action and Environment (the Minister) determines that a proposed media merger may be put into effect with conditions, the undertaking parties to the proposed media merger may request the Minister to review the conditions if they are of the opinion that the market conditions applicable to the proposed media merger have substantially changed. Such a request must be made within 40 working days of the date of the Minister's determination.

Following receipt of such a request, the Minister shall, within 40 working days, consider whether the market conditions have substantially changed. If the Minister believes that they have substantially changed they may review the conditions in their determination to ascertain whether they remain necessary to protect the plurality of the media in the State and if they should be amended or revoked.

21. Can a determination of the Minister be appealed?

An undertaking party to a proposed media merger may make an application to the High Court for leave to seek judicial review following a determination of the Minister for Communications, Climate Action and Environment (the Minister) following either a Phase 1 or Phase 2 examination. Such an application must be made within 40 working days from the date of the Minister's determination.

The High Court may grant leave outside this period if it is satisfied that there are substantial reasons why the application was not made during the period. The High Court will only grant leave if it is satisfied that the application raises a substantial issue for its determination. In considering an appeal of the Minister's determination, the High Court may make any order it sees fit, including sending the matter back to the Minister.

No appeal can be made of the High Court's decision to the Supreme Court, excepting either if leave of the High Court for such an appeal is granted or if a Constitutional matter is raised.

22. Are the results of media merger examinations published?

The Minister for Communications, Climate Action and Environment (the Minister) shall publish the fact of their Phase 1 determinations in the form of the determination letters within 15 working days of the determination on the Department for Communications, Climate Action and Environment's (the Department) website. Such documents are available here.

The Minister aims to be as transparent as possible with regard to the operation of the media mergers regime. As such, the Department shall publish on its website, as soon as may be following the Minister's determination following a Phase 1 or 2 examination, the following documents relating to proposed media mergers:

  • The Phase 1 Examination Document;
  • If applicable, the Opinion of an Advisory Panel;
  • If applicable, the Report and Recommendation of the Broadcasting Authority of Ireland.

These documents will be examined with due regard for commercial sensitivity and other matters prior to publication.

 

August 2017