: This Bill was passed by the Dáil and amended in the Seanad. The House must make an order for consideration of the Seanad amendments, either today or on a future date. Perhaps the Minister will propose a date for taking the amendments.
Mergers, Take-Overs and Monopolies (Control) Bill, 1978: From The Seanad .
: I propose that they be taken today.
: I move that the Committee agree with the Seanad in amendments No. 1:
Section 3: In page 6, lines 8 to 17 deleted and the following substituted:
"3.—(1) In relation to a proposed merger or take-over, title to any shares or assets concerned shall not pass until—
(a) the Minister, in pursuance of section 7 (a), has stated in writing that he has decided not to make an order under section 9 in relation to the proposed merger or take-over, or
(b) the Minister has stated in writing that he has made a conditional order in relation to the proposed merger or take-over, or
(c) the relevant period within the meaning of section 6 has elapsed without the Minister's having made an order under section 9 in relation to the proposed merger or take-over,
whichever first occurs."
Under section 3 of the Bill as introduced, a proposed merger or take-over would not take effect unless it had been notified to and cleared by the Minister or the stipulated time for clearance had expired. We believe this would mean that all transactions carried out by any persons who had proceeded without notifying would be invalid: for example, the payment of wages and salaries, the hire or dismissal of personnel, the buying or seling of goods. Indeed, every contract entered into would be invalid. As will be appreciated, this could have unforeseen and, perhaps, unforeseeable consequences.
Under the proposed amendment it is intended that only the passing of title would be invalid, leaving valid all the other transactions to which I have referred. This will go a long way towards meeting the concern which has been expressed by many people about the section and, accordingly, I recommend the amendment.
: I am sorry I did not spot it myself. I agree with the Minister's suggestion.
: I move that the Committee agree with the Seanad in amendment No. 2:
Section 8: In subsection (2), page 7, line 31, "of any" deleted.
Section 7 (b) provides for the referral by the Minister of a proposed merger to the Examiner of Restrictive Practices for investigation in relation to all of the scheduled criteria. However section 8 (2) provides that the examiner's report of his investigation shall contain his opinion as to whether the proposed merger concerned would operate against the common good in respect of any of the scheduled criteria. It has been suggested that the examiner would be in a position to isolate one criterion and confine his report to a statement that the proposal would operate against the common good in relation to that criterion. I agree with the view that this would be undesirable, and the amendment will remedy this by providing that the examiner in his report must deal with the operation of the proposal in relation to all of the criteria.
: Is the purpose of the amendment to oblige the examiner to consider the merger in the setting of all the criteria?
: I move: That the Committee agree with the Seanad in amendment No. 3:
Section 9: In subsection (2), page 7, line 49, "and, in the case of a conditional order, may have retrospective effect" inserted after "order".
Under this proposed amendment the Minister will have power to make an additional order to validate retrospectively a purported merger. A condition of such an order with retrospective effect could be that the enterprise concerned would have to divest themselves of any shares over the 30 per cent as required. For example, if an enterprise acquired 35 per cent of the shares of another enterprise, they could be required to sell off 5 per cent of the shares in order to bring the shareholding down to the 30 per cent limit in the Bill. In the Bill as introduced there is no power to validate a purported merger, and this amendment, with amendment No. 1, will go a long way towards easing the concern which has been expressed by many people about the severe implications of a proposed merger proceeding without notifying the Minister.