Countdown to Brexit - Competition LawFriday, 25 September 2020
With the Brexit deadline passed and the end of the transition period fast approaching, the ByrneWallace Brexit team address various issues which will impact upon businesses either trading with or through the UK, or with suppliers in the UK, and/or with UK staff based in Ireland or staff in the UK.
In this issue, we address Competition Law.
Critical issues for businesses to consider:
- Some mergers involving Irish companies will no longer be able to benefit from the “one stop shop” in merger control matters. Such transactions may require notification in the UK to the CMA, as well as at EU level. Therefore, greater commercial planning may be required in carrying out certain mergers, acquisitions and joint ventures post-Brexit.
- The number of mandatory notifications involving Irish companies under the EU Merger Regulation (EUMR) is likely to decrease. Many of the mergers involving Irish companies requiring a mandatory notification under the EUMR meet the thresholds largely because of UK derived turnover, which will no longer be counted in post-Brexit threshold assessments.
Antitrust Enforcement and Litigation:
- Irish companies may be able to resist the disclosure of UK parent company documents in the event of any investigation or dawn raid be initiated by the European Commission.
- There is a possibility of an increase in the number of private antitrust “follow-on” cases being brought in Ireland in the absence of the UK as the forum of choice, albeit subject to the difficulties in 3rd party funding and class action lawsuits in this jurisdiction.
- There is a possibility of greater divergences in competition law and enforcement policy between the Irish and UK competition authorities, though this is more likely in the medium to long term.
- There is a possibility of a more liberal regime in the UK post-Brexit affecting Irish competitiveness, as the UK is unlikely to follow EU State aid rules once the Transition Period ends.
- On the other hand, a trade agreement will likely only be concluded if the UK can put forward a subsidy regime which provides sufficient assurance to the EU that businesses can continue to compete on a level playing field.
- There is a possibility of a “Brexit bonus” or less restrictive enforcement applied by the European Commission in respect of State aid schemes implemented by the Irish State, though the European Commission’s COVID-19 Temporary Framework has already introduced a more relaxed regime.
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