Tuesday, 21 May 2019

Questions (522)

Barry Cowen


522. Deputy Barry Cowen asked the Minister for Communications, Climate Action and Environment if the contract for the national broadband plan precludes the sale of companies (details supplied); if so, the nature of this clause; and if he will make a statement on the matter. [21693/19]

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Written answers (Question to Communications)

The NBP Contract includes change in ownership restrictions that are consistent with normal practice in major infrastructure projects.

National Broadband Ireland (NBI) is obliged to seek the written consent of the Minister prior to the occurrence of a Change in Ownership of NBI that occurs at any time from the commencement of the contract up until one year after the completion of deployment. After the one year anniversary of the completion of deployment, the shares of NBI can be sold without Ministerial consent but not to Unsuitable Third Parties.

Unsuitable Third Parties include excluded parties specifically set out in EU procurement regulations, parties involved in the arms trade, parties who have been convicted of a criminal offence related to business, parties who have failed to comply with tax rules and parties whose activities pose a threat to national security. Also, if any shareholder has a contingent commitment to make a loan or equity or capital contribution to NBI, NBI is required, until that commitment has been delivered, to seek the written consent of the Minister to a Change in Ownership which results in the shareholder ceasing to have Control (i.e. a 30% shareholding or equivalent level of control) of NBI.

NBI is obliged to notify the Minister of any Change in Ownership throughout the life of the Contract and there are provisions in the Contract in relation to clawback payments in the event of a sale of NBI prior to contract year 10.

If a Change in Ownership occurs, NBI (in new ownership) will continue to be bound by the NBP Contract.

The Minister can terminate the NBP Contract and take ownership of NBI if there is an un-remedied change in ownership of NBI in breach of the NBP Contract.

The Minister will also have a priority (1st ranking) security over the shares in NBI. This creates a practical inhibitor on the shareholder disposing of those shares without the Minister being satisfied that the disposal is consistent with the Contract.

The Minister will also have priority (1st ranking) security over the Assets of NBI throughout the term of the NBP Contract. This means in practical terms that any material fixed Assets which NBI requires to perform the NBP Contract cannot be sold without the Minister’s consent.