I move:
That Dáil Éireann, pursuant to the provisions of section 2 (6) of the Mergers, Take-overs and Monopolies (Control) Act, 1978 (No. 17 of 1978), hereby confirms the Mergers, Take-overs and Monopolies (Control) Act, 1978 (Section 2) Order, 1993 (S.I. No. 135 of 1993), made under section 2 (4) of the Act, copies of which Order were laid before Dáil Éireann on 25 May, 1993.
The purpose of this resolution is to confirm an order made by the Minister for Enterprise and Employment on 21 May 1993 under the Mergers, Take-overs and Monopolies (Control) Act, 1978 relating to the financial criteria which apply to mergers and take-overs for the purposes of that Act.
The order, which doubles the thresholds under the mergers and take-overs legislation, is in accordance with a specific recommendation of the Moriarty Task Force on the implementation of the Culliton report. The increase will not affect the position of mergers and take-overs proposals involving newspapers, all of which will continue to be notifiable irrespective of the scale of the operations involved.
Since the removal of old borders throughout Europe it is essential that Irish firms be allowed to create the size of enterprise needed to compete in the vastly increased European market place. The present limits, which predate the Single European Act, are now too low and need to be increased.
Allowing them to remain at their lower level creates uncertainty for those who wish to build larger scale operations. These concerns have been expressed by the Moriarty Group, which has recommended increasing the financial limits. The decision to raise the limits is a further step in the implementation of the Culliton report. This measure is, therefore, part of the package of measures which are being taken to ensure that the report is implemented.
The effect of the increase will be to take a significant number of small scale mergers outside the scope of the mergers and take-overs legislation. This action keeps up the momentum in the process of the implementation of Culliton.
The Moriarty recommendation is not a theoretical one; it has practical effects. Looking back at the notifications under the 1978 Act over the past decade, a clear pattern emerges. From a level of almost 50 notifications in 1982 the number has climbed fairly steadily to almost 150 in 1992. The exceptions to his trend are the years 1985 and 1986 where the number of notifications fell below those of 1984. A reasonable explanation of this was the increase in financial thresholds in 1985. The persistent upward trend was not long in reasserting itself. Control of merger activity is essential to safeguard competition. However, it must be recognised that it places a burden on business and that burden must be proportional to the threat to competition.
It is essential, therefore, for the administration to keep in mind the burden it imposes and to keep its procedures under review. This is not solely a question of reviewing thresholds periodically. Time limits and administrative practices also need to be reviewed. Changes in the procedure under the 1978 Act brought about by the Competition Act, 1991 mean that except where a case is referred to the competition authority by the Minister, and such cases are rare, a decision must generally be given within one month of all relevant information being available. As a matter of administrative practice my Department aims for a decision within two weeks. In recent times this objective has been met in the majority of cases. I am anxious to ensure that, without increasing resources for the task, this will continue to be the case. The doubling of thresholds which should reduce the number of notifications will in itself help achieve this aim.
The Moriarty Group also urged that greater competition should continue to be promoted within Ireland, and with increased urgency and vigour in all markets for goods and services. As the House is aware it pointed out that the application of competition policy and of monopoly and merger controls is vital so as to prevent abuse of a dominant position, either in markets for new material inputs or in final products markets.
In essence, a key message emanating from the Culliton report and from the follow-up Moriarty Group, is that competition must become a strategic part of our thinking both for policy makers and the business community. The environment created by the Competition Act, 1991 is essential to prevent any company abusing a dominant position. Indeed, the Competition Act created a new framework to deal with anti-competitive behaviour and the abuse of a dominant position. It enables any party who consider themselves injured by anti-competitive behaviour to seek relief through the courts. Any enterprise excluded from the scope of the 1978 Act by virtue of the present increase in the limits will continue, therefore, to be subject to the Competition Act, 1991.
The Competition Act has been in place since 1991 and has already brought an awareness of the benefits of competition to many businesses and individuals. Much work remains to be done, however, in improving the climate for a more competitive, efficient economy. I can assure the House that this Government will pursue this goal with determination in view of the significant benefits to be gained for the Irish economy at large.
We now have to take a hard look at the structures and rules that regulate business, industry and services. Just because it is the way things are or have always been done, does not mean that it is still appropriate for today's environment. We must examine all aspects of our regulatory environment against the yardstick of competition. Are the legislative and regulatory instruments such that industry or business can operate efficiently, progressively and with benefits for the consumer? With these questions in mind we have begun to look at the many controls restrictions and licensing systems which can operate to restrict competition in trades, professions and services.
What we want to do is to create opportunities, to open doors and to break down barriers — to create a climate for enterprise. By the end of 1993 we will have gone some way towards identifying where we need to move in this direction.
The summer report of the Central Bank also reminded us of the need to look at ways to increase competition. The report advocated greater competition and transparency in non-competitive sectors such as many public utilities and professional services. Public utilities and services will not be immune from our assessments. Already at EC level public utilities such as telecommunications, electricity and gas industries have been viewed as sectors where competition can play a role with benefits for the consumer and for the industries themselves. It is my view that we should undertake our own assessment of our public utilities to ascertain where competition can best serve all our interests. This is a process which we must undertake without delay, as for many of these services, competition from the Single Market and from third countries is just around the corner.
In the same vein, one of the key recommendations of the Moriarty Group accepted by Government was to look at the restrictive arrangements and other limitations which operate to limit entry of suitably qualified people to trades, professions or services. Any suggestions, therefore, that access to any of the professions be limited for any reason other than the safety or welfare of the consumer would be entirely contrary to the task force's recommendation and correspondingly will not be entertained by the Government.
Mergers and take-overs can take place for a variety of reasons, such as economies of scale to be achieved by mutually complementary business operations, new business opportunities, market diversification, expansion and so on. The external growth of businesses does not, however, have to be viewed in negative light in all cases if such development increases efficiency of the undertakings concerned and leads to new employment opportunities, among other things. Thus, while the reasons for, and advantages of, mergers and take-overs are usually directly associated with the enterprises concerned in the first instance, the final result of mergers and take-overs can also be of significant benefit to the economy as a whole. If, however, such proposals result in dominance in the market place to such a degree that effective competition is eroded or eliminated altogether, the adverse effects on the economy can be very serious.
Businesses which are not exposed to the rigours of competition in their own territorial areas often do not have to strive to realise efficiency gains. In addition, their position of relative comfort in the market may tempt them to impose unfair purchase or selling prices or trading conditions, or limit production, all of which would ultimately be against the best interests of the economy.
In these circumstances, therefore, the Mergers, Take-overs and Monopolies (Control) Act, 1978, as amended, imposes a strict requirement on businesses considering mergers or take-overs to notify such proposals to the Minister for Enterprise and Employment in advance of putting them into effect. Under the Act, any proposal which exceeds certain financial limits must be notified to the Minister. These limits, which are specified in section 2 (1) (a) of the Act, currently apply the Act where the value of the gross assets of each of two or more of the enterprises involved in the proposal is not less than £5 million or where the turnover of each of those two or more enterprises is not less than £10 million.
Cases which are notified to the Minister for Enterprise and Employment under the Act are subjected to a detailed assessment by the Department in the first instance with a view to assessing their likely implications for competition, employment and a variety of other considerations with due regard to the interests of the common good. In addition to requiring notification for the Minister's clearance under the Act, a proposed merger or take-over may be the subject of a reference to the Competition Authority and, ultimately, may become subject to an order prohibiting it absolutely or conditionally.
The 1978 Act made special provision, in section 2 (4), for increasing, by order, the amounts specified in the financial limits relating to mergers and take-overs. Any such order also requires confirmation by both Houses within 21 sitting days after presentation, otherwise it will lapse. The present order, which is the second such order providing for an increase in those amounts, was laid before each House on 25 May 1993. The previous order to which I referred earlier was made on 8 July 1985.
It is, in my view, necessary and desirable that the limits which were last amended in 1985 should be increased and the Minister has made the order accordingly. The new limits, as set out in the order and as recommended by the Moriarty Group are £10 million and £20 million for gross assets and turnover respectively, in merger or take-over cases. The new limits proposed in the order should ensure that the provisions of the 1978 Act apply only to the types of enterprises for which it was intended and I commend the motion to the House accordingly.