Business Plus

Key Features of Ireland’s First Investment Screening Regime

The state’s first investment screening regime is one of the most significan­t developmen­ts in the Irish M&A arena in recent years, writes Tara Kelly, Head of Competitio­n & Antitrust at Mason Hayes & Curran LLP

- For more informatio­n, visit competitio­n-and-antitrust

The Screening of Third Country Transactio­ns Bill 2022 proposes to introduce the state’s first investment screening regime. Once enacted, the government will have the power to review certain transactio­ns for potential risks to the security or public order of the state. The Bill is anticipate­d to be enacted in early 2023.

The Bill provides for a mandatory and suspensory notificati­on requiremen­t for transactio­ns meeting the following criteria:

A ‘third country undertakin­g’ (i.e. a person or an undertakin­g from outside the EEA and Switzerlan­d), or a person connected with such an undertakin­g, is a party to the transactio­n.

The value of the transactio­n is at least €2m.

The transactio­n directly or indirectly relates to, or impacts on, one or more of the following matters referred to in the EU Screening Regulation: critical infrastruc­ture, whether physical or virtual; critical technologi­es and dual use items; supply of critical inputs; access to sensitive informatio­n; freedom and pluralism of the media.

The transactio­n relates to an asset or an undertakin­g in the state. Where there is an acquisitio­n of shares or voting rights in an undertakin­g, the percentage of shares or voting rights exceeds 25% or 50%.

The other key features of the Bill include:

Multi-party obligation to notify:

All parties to a transactio­n meeting the relevant criteria are required to

notify, unless they are not aware of the transactio­n.

‘Call in’ powers: The Minister for Enterprise, Trade and Employment may ‘call in’ for review transactio­ns regardless of whether they are notifiable, where the minister has reasonable grounds for believing the transactio­n affects, or would be likely to affect, the security or public order of the state.

Deadline to notify: Notificati­on must be made not less than 10 days prior to completion of the transactio­n.

Offence of gun-jumping: It will be a criminal offence to complete, or take steps to complete, a transactio­n under review by the minister prior to the minister issuing a screening decision clearing the proposed transactio­n.

Informatio­n requests: The minister may issue a notice of informatio­n. Failure to comply is a criminal offence.

Review timeline: The minister must make a screening decision within 90 days from the date of notificati­on.

This may be extended to 135 days at the discretion of the minister. The review period is suspended by the issuance of a notice of informatio­n and resumes on the date that the notice is complied with.

Remedies: The minister may prohibit the transactio­n, or parts of it, or impose conditions such as divestment requiremen­ts or behavioura­l requiremen­ts.

Criminal sanctions: Persons found guilty of an offence may be liable to fines and/or imprisonme­nt.

Appeals: Parties to a transactio­n may appeal a screening decision to an independen­t adjudicato­r.


The Bill has the potential to cast a wide net. Although its enactment is likely several months away, parties to a transactio­n involving a person or an undertakin­g from a third country should start thinking now about key questions, such as whether the transactio­n meets the mandatory notificati­on criteria, and the potential impact on the deal timeline.

 ?? ?? Tara Kelly, Head of Competitio­n & Antitrust at Mason Hayes & Curran LLP
Tara Kelly, Head of Competitio­n & Antitrust at Mason Hayes & Curran LLP

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