Foilsiú
Media Mergers: Your questions answered
Ó An Roinn Turasóireachta, Cultúir, Ealaíon, Gaeltachta, Spóirt agus Meán
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó An Roinn Turasóireachta, Cultúir, Ealaíon, Gaeltachta, Spóirt agus Meán
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
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).
Three criteria emerge from this definition:
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.
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.
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:
A proposed merger must meet all three criteria to be deemed a media merger.
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).
Proposed media mergers must be notified to the Competition and Consumer Protection Commission in the first instance. Read guidance on this notification process.
Should the Commission clear a proposed media merger on competition grounds then notification must be made to the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media within 10 working days of the Commission’s determination. Read guidance on this notification process and the Notification Form.
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 Tourism, Culture, Arts, Gaeltacht, Sport and Media (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 of Tourism, Culture, Arts, Gaeltacht, Sport and Media (the department) carries out this examination function on behalf of the Minister. The Minister makes their determinations on the basis of such examinations by the department.
In accordance with the statutory Guidelines on Media Mergers, the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Department) facilitates pre-notification meetings with the undertaking parties to a proposed media merger. The purpose of such meetings is threefold:
Parties wishing to avail of the Simplified Procedure must discuss this possibility with the Department in advance of submitting a notification.
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 of Tourism, Culture, Arts, Gaeltacht, Sport and Media (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.
Parties notifying under the Simplified Media Merger Notification Procedure will be granted flexibility in relation to sections 3.3-3.10 of the Notification Form.
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.
The Simplified Media Merger Notification Procedure is intended to be used for the assessment of ‘non-Irish’ mergers. That is, mergers where the target of the transaction is not operating in the State and, thus, is unlikely to have an impact on the plurality of media in the State.
The Department may apply a Simplified Media Merger Notification Procedure when, in the view of the Department, the following conditions are met:
Where the Department decides to proceed under the Simplified Procedure, the Minister will endeavour to make a determination as soon as practically possible. Notwithstanding that the Minister will endeavour to make a determination as soon as practically possible, the statutory deadline within which the Minister must make such a determination, as specified in 28D(1) of the Act, remains 30 days from the appropriate date.
A Phase 1 Media Merger Examination is the initial examination of a notification of a proposed media merger by the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (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:
The Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media (the department) carries out this examination function on behalf of the Minister. The Minister makes their determinations on the basis of such examinations by the department.
In accordance with s. 28D of the Competition Act 2002 (as amended) (the Competition Act), the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Minister) considers the following matters in a Phase 1 Examination:
The relevant criteria are defined by s. 28A of the Competition Act 2002 (as amended) and are as follows:
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.
Following a Phase 1 media merger examination, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Minister) shall make one of the following determinations:
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).
Following a Phase 1 Media Merger Examination, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Minister) may request Coimisiún na Meán to conduct a full, or Phase 2, examination of a proposed media merger.
Coimisiún na Meán 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.
Following receipt of the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media's (the Minister) request to conduct a Phase 2 Media Merger Examination, Coimisiún na Meán shall:
Coimisiún na Meán 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, Coimisiún na Meán 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.
In accordance with s. 28E(6) of the Competition Act 2002 (as amended) (the Competition Act), Coimisiún na Meán considers the following matters in a Phase 2 Examination:
Following a Phase 1 Media Merger Examination, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Minister) may request Coimisiún na Meán to conduct a full, or Phase 2, examination of a proposed media merger.
The Minister may also appoint an Advisory Panel to assist Coimisiún na Meán in conducting its Phase 2 examination. This assistance takes the form of an opinion that an Advisory Panel shall provide to Coimisiún na Meán 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 Coimisiún na Meán. Such an opinion must be provided to Coimisiún na Meán prior to Coimisiún na Meán providing its draft report and recommendation to the undertaking parties to the proposed media merger.
The Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (the Minister) may appoint an Advisory Panel to assist Coimisiún na Meán 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:
Following a Phase 2 examination, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media shall determine that a proposed media merger:
Following a Phase 2 examination, should the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (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.
Following a Phase 2 examination, should the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (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 Coimisiún na Meán 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.
If, following a Phase 2 examination, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (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.
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 Tourism, Culture, Arts, Gaeltacht, Sport and Media (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.
The Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media (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 of Tourism, Culture, Arts, Gaeltacht, Sport and Media's (the department) website.
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:
These documents will be examined with due regard for commercial sensitivity and other matters prior to publication.