A Tale of Two Mergers: Irish Merger Policy after the Heineken and Kerry Decisions

Abstract

The present paper reviews two key merger decisions of the Irish Competition Authority (hereinafter 'Authority'). Unlike the majority of mergers notified to the Authority, both involved significant competition issues. Kerry/Breeo was the first case in which the Authority addressed the issue of efficiencies and was the first merger decision by the Authority to be appealed to the High Court, while Heineken/Scottish & Newcastle was the first case referred back to the Authority by the EU Commission. The paper argues that the Authority's economic analysis in both cases was highly unsatisfactory. The Authority appeared to place greater emphasis on qualitative rather than quantitative evidence, and several aspects of its analysis appear inconsistent with economic theory. The Authority's treatment of efficiencies in the Kerry case may discourage efficiency enhancing mergers. The paper concludes with a number of recommendations for improving the Authority's merger control procedures in light of these two cases. These include the introduction of more effective internal checks and balances, greater emphasis on quantitative methods, and clarification of the Authority's approach to efficiencies. It also suggests amending the legislation to provide a right for third parties to appeal merger decisions of the Authority.