A Change in Direction for Merger Control in Ireland: An Ex Ante/Ex Post Case Study Evaluation

Gorecki, Paul (2021): A Change in Direction for Merger Control in Ireland: An Ex Ante/Ex Post Case Study Evaluation.

Abstract

Since 2017 Ireland’s competition agency, the Competition and Consumer Protection Commission (CCPC), has cleared two merger to monopoly transactions, albeit both subject to the divestment of selected assets to an entrant. One of these transactions was Kantar Media’s 2017 acquisition of Newsaccess. Prior to 2017 the CCPC had prohibited mergers to monopoly. Does this apparent relaxation mark a sea change in CCPC merger policy? Taking the Kantar Media/Newsaccess merger as a case study, the paper explores this question. The paper finds that there has been a relaxation of merger enforcement by the CCPC. On an ex ante basis the Kantar Media/Newsaccess merger should have been prohibited or the remedy substantially strengthened. However, ex post, due to business difficulties of the merger entity consequent upon a major pre-merger restructuring, the market has self-corrected through successful entry facilitated in large part by these business difficulties. Such rapid self-correction in restoring competition is very much the exception rather than the rule. If it were otherwise there would be no need for merger control.

• Item Type: MPRA Paper
• Language: English
• Keywords: Ireland; merger control; structural remedies; substantial lessening of competition; ex post evaluation; Competition Act 2002.
• Subjects: D - Microeconomics > D2 - Production and Organizations > D22 - Firm Behavior: Empirical Analysis; K - Law and Economics > K2 - Regulation and Business Law > K21 - Antitrust Law; L - Industrial Organization > L4 - Antitrust Issues and Policies > L41 - Monopolization ; Horizontal Anticompetitive Practices

References

Amarach Research (2019) PRII Census 2019 (Dublin: PRII).

Andrews, Philip, Paul K Gorecki & David McFadden (2015) Modern Irish Competition Law (The Netherlands: Kluwer law International).

Baker, Jonathan (2019).The Antitrust Paradigm. Restoring a Competitive Economy (Cambridge Mass: Harvard University Press).

Buccirossi, Paolo, Lorenzo Ciari, Tomaso Duso, Sven-Olof Fridolfsson, Giancarlo Spagnolo, & Cristiana Vitale (2008) “A Short Overview of a Methodology for the Ex-Post Review of Merger Control Decisions.” De Economist, Vol. 156, No. 4, pp. 453-475.

Competition and Consumer Protection Commission (CCPC) (2014) Guidelines for Merger Analysis, 31 October (Dublin CCPC).

Competition and Consumer Protection Commission (CCPC) (2018a) CCPC Mergers & Acquisitions Report 2017 (Dublin: CCPC).

Competition and Consumer Protection Commission (CCPC) (2018b) Annual Report on Competition Policy Developments in Ireland 2018, DAF/COMP/AR(2018)8 (Paris: OECD).

Competition and Markets Authority (CMA) (2018) Merger Remedies. CMA87 (London: CMA).

Competition Authority (2013) Annual Report 2012 (Dublin: Competition Authority).

Department of Enterprise, Trade & Employment (DETE) (2021) Public Consultation on Aspects of the Competition (Amendment) Bill 2021 (Dublin: DETE).

European Commission (2008) Commission Notice on Remedies Acceptable under Council Regulation (EC) No. 139/2004 and Under Council Regulation (EC) No 802/2004, 2008/C 267/01.

Gorecki, Paul K (2020) “Procedural Versus Competition Perspectives on a Recent CCPC Merger Remedies: the Berendsen (Elis)/Kings Laundry Transaction.” Competition Law Journal, Vol. 19, Issue 3, pp. 128-135.

Gorecki, Paul K (2021a) Reforming Non-Notifiable Mergers in Ireland: the Kantar Media/Newsaccess Transaction. MPRA Paper 106640 (Munich: MPRA).

Gorecki, Paul K (2021b) “Proposals to Reform Non-Notifiable Mergers in Ireland: A Step in the Right Direction?” European Competition Law Review. Forthcoming.

KPMG (2017) Entry and Expansion in UK Merger Cases. An Ex-Post Evaluation (London: Competition & Markets Authority).

McCann FitzGerald (2021) Irish Merger Control 2020 – Your 3-minute Update. 15 January. https://www.mccannfitzgerald.com/knowledge/antitrust-competition/irish-merger-control-2020-3-minute-update.

O’Halloran, Barry (2017) “Kantar Media Must Sell Part of Irish Rival as Condition of Takeover.” Irish Times, 12 July. https://www.irishtimes.com/business/media-and-marketing/kantar-media-must-sell-part-of-irish-rival-as-condition-of-takeover-1.3152732.

Office of Government Procurement (OGP) (2013) Revision of Arrangements Concerning the Use of Central Contracts Put in Place by the National Procurement Service, Circular 16/13 (Dublin: OGP).

Office of Government Procurement (OGP) (2017) Guidance on Framework Agreements (Dublin: OGP).

Office of Government Procurement (OGP) (2019) National Public Procurement Policy Framework, Version 3. (Dublin: OGP).

Ormosi, Peter, Franco Mariuzzo & Richard Havell with Amelia Fletcher & Bruce Lyons (2015) A Review of Merger Decisions in the EU: What Can We Learn from Ex-Post Evaluations? (Brussels, European Commission).

Paul, Mark (2017) “PR body asks competition regulators to intervene following Kantar row.” Irish Times, 24 June. https://www.irishtimes.com/business/media-and-marketing/pr-body-asks-competition-regulators-to-intervene-following-kantar-row-1.3131648).

Public Relations Institute of Ireland (PRII) (2017a) “PRII Welcomes Decision of the Competition and Consumer Protection Commission on Irish Media Monitoring Market,” Press Release, July. https://www.prii.ie/news/2017/july-2017/prii-welcomes-decision-of-ccpc-on-media-monitoring-market.html.

Public Relations Institute of Ireland (PRII) (2017b) Survey of Print and Broadcast Media Monitoring. Unpublished (Dublin: PRII).

Sexton, Colette (2017) “Truehawk Media, set up in response to a change in the market, will go live in September.” Sunday Business Post, 27 August. https://truehawkmedia.ie/2017/09/21/media-monitoring-ireland/.

Shapiro, Carl (2019) “Protecting Competition in the American Economy: Merger Control, Tech Titans, Labor Markets” Journal of Economic Perspectives, Vol. 33, No. 3, Summer, pp. 69-93.

US, Department of Justice (US, DoJ) (2011) Antitrust Division Policy Guide to Merger Remedies (Washington DC: US DoJ). https://www.justice.gov/sites/default/files/atr/legacy/2011/06/17/272350.pdf.

US, Department of Justice (US, DoJ) (2020) Merger Remedies Manual (Washington DC: US DoJ). https://www.justice.gov/atr/page/file/1312416/download.

WPP (2017) Trading Statement for First Quarter 2017. https://www.wpp.com/-/media/project/wpp/files/imported-reports/2017/wpp_q1_presentation_apr17.pdf.

WPP (2019) “Completion of Kantar Transaction.” Press Release. 5 December. https://www.wpp.com/news/2019/12/completion-of-kantar-transaction.