The Screening of Third Countries Transactions Bill

The enactment of the Screening of Third Countries Transactions Bill is widely anticipated by key Irish companies. As it continues to work its way through the Irish legislative approval process, our Corporate team considers the likely impact of a number of amendments to the Bill from earlier this year.

We have previously flagged the much-anticipated enactment of the Screening of Third Countries Transactions Bill. It proposes to introduce a mandatory regime which will impose an obligation on all parties to a transaction in certain sensitive sectors, and which otherwise meets certain criteria for notification, to pre-notify the transaction to the Minster for Enterprise, Trade and Employment at least 10 days before the transaction completes.

Earlier this year, certain amendments were made to the Bill, which continues to work its way through the Irish legislative system. It is anticipated that the Bill will now be enacted in the second half of 2023. In the meantime, we summarise some of the key amendments.

Scope of the key amendments

Notification requirements

The criteria for mandatory notification have been amended (as per the following underlined inclusions) such that a notification will be required where:

- A Third Country Undertaking (TCU), or person connected with such an undertaking, as a result of the transaction:

• acquires control of an asset in the State, or
  
• changes the percentage of shares or voting rights it holds in an undertaking in the State (from 25% or less to more than 25% / from 50% or less to more than 50%)

- The value of the transaction must be at least €2 million in a period of 12 months (note: to date, no guidance has been issued on how the value of a transaction criteria is to be calculated), and

- The transaction relates to, or impacts on one or more of the following sensitive sectors, namely critical technologies and dual-purpose items, the supply of critical inputs, the access to sensitive information, the freedom of pluralism of the media, but in particular (for current purposes) critical infrastructure.

Critical infrastructure in this context refers to physical or virtual, including energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructure, and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure.

As a reminder, a TCU essentially means:

(a) An undertaking constituted or otherwise governed by the laws of a country outside of the EU, the EEA and Switzerland

(b) A third country national, i.e. a person ordinarily resident in a country referred to (a), or

(c) An undertaking controlled by at least one director, partner, member or other person that is a person referred to in (a) or (b) above.

Parties to a transaction

Previously it was sufficient for the TCU or person connected with a TCU to be a party to the transaction, e.g., it could include the seller. However, following the recent amendments the focus appears to now be on the entity/person acquiring control of an asset/ increasing its shareholding.

‘Control’

The definition of ‘Control’ has been amended such that a person will be regarded as exercising control of an undertaking, where that person can exercise decisive influence over its activities by any means, including as a consequence of (i) the existence of rights or contracts conferring decisive influence on the composition, voting or other commercial decisions of the undertaking, or (ii) ownership of, or the right to use, all or part of the assets of the undertaking. A person will exercise control of an asset where that person has ownership of, or the right to use, all or part of the asset.

Principal place of business

The reference to “undertaking In the State” will include one which has its principal place of business in the State or is incorporated in the State.

Review period

The Minister is required to make a screening decision within 90 days from the date on which the screening notice for the transaction is issued. The 90-day review period may be extended to 135 days at the discretion of the Minister.

Given the anticipated enactment of the Bill in H2 of 2023, it should also be noted that the Minister has a broad discretion to review transactions regardless of whether they are notifiable or notified if the Minister has reasonable grounds for believing that they could affect, or would likely affect, the security or public order of the State.

However, this right of review ceases, in the case of non-notifiable transactions, where more than 15 months has passed since the transaction was completed, and where, in the case of a notified or notifiable transaction, it is completed more than “15 months before [this section] comes into operation”.

Therefore, in theory, relevant transactions which have recently completed or will be completed in the coming months could be reviewed by the Minister if the legislation is enacted and commenced as currently planned.

Penalties

It is a criminal offence under the Bill to complete, or take steps to complete, a non-notified transaction or a notified transaction under review by the Minister prior to the Minister issuing a screening decision clearing the proposed transaction or making it subject to conditions. Where the transaction is subject to a conditional screening decision, it is an offence to complete the transaction other than in accordance with those conditions.

A person guilty of an offence under the relevant legislation on foot of the Bill will be liable on summary conviction of a fine of an increased amount of €5,000 (and/or up to 6 months imprisonment) or a fine of up to €4,000,000 (and/or up to 5 years imprisonment) upon conviction on indictment.

Conclusion

There remain many aspects of the Bill, including the recent amendments, for which further guidance will be required. This is expected to be provided over the coming months. Given the anticipated enactment date of H2 2023, we will provide a further update in the coming months when hopefully we will have greater clarity on how the legislation will operate.

For more information regarding the impact of the Bill on your transactions, contact a member of our Corporate or Competition & Antitrust teams.

The content of this article is provided for information purposes only and does not constitute legal or other advice.