A transaction will be mandatorily notifiable to the Minister if the purchaser is a 'third country undertaking' (i.e. from outside of the EU, EEA and Switzerland) or a person connected with such an undertaking, and if each of the following 4 cumulative conditions are met:

1    The purchaser acquires control of an asset or undertaking in the State (i.e. ROI), or increases the % of shares or voting rights it holds in an undertaking in the State from 25% or less to more than 25% (or from 50% or less to more than 50%).

2    The cumulative value of the transaction and each transaction between parties/connected persons is equal to or greater than €2m in the 12 months prior to the date of the transaction.

3    The same undertaking does not, directly or indirectly, control all the parties to the transaction.

4    The transaction relates to/ impacts upon, one or more of the following 'sensitive' sectors:

a)    Critical Infrastructure: whether 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;

b)    Critical Technologies & 'Dual Use' Items: including artificial intelligence,

c)    Supply of Critical Inputs: including energy or raw materials, as well as food security;

d)    Access to Sensitive Information: including personal data, or the ability to control such information; and

e)    Freedom & Pluralism of the Media.

The Department for Enterprise, Trade and Employment has published Draft Guidance on the mechanism which explains the very broad scope of these 'sensitive' sectors.

The Minister may retrospectively 'call in' a transaction for review within specific statutory periods where:

1    The Minister has reasonable grounds to believe that the transaction could affect the security or public order of the State; and

2    The transaction would result in a third country undertaking, or a person connected with such an undertaking, acquiring or changing the extent to which it has control of/ an interest in/ legal rights in/ an ability to exercise effective participation in the management or control of, an asset or undertaking in the State.

Transactions that have completed 15 months before the Act comes into effect (regardless of whether they fulfill the thresholds for mandatory notification or not) may be retrospectively 'called-in' for review by the Minister.

Aside from transactions that completed before the Act comes into effect:

• Transactions that were mandatorily notifiable but not notified, may be retrospectively 'called-in' for review by the Minister within the later of—5 years from the date on which the transaction completed, or 6 months from the date on which the Minister first becomes aware of the transaction; and
• Transactions that were not mandatory notifiable, may be retrospectively 'called-in' for review by the Minister within 15 months of the transaction completing.

A Notification should be submitted using a Notification Form to the Department of Enterprise and Employment. No filing fee is required. Notification on the basis of a “good faith intention” to complete a deal is not precluded. The Act does not specify which of the parties must notify the Minister. All that is required is that one of the parties does so, at least 10 days before transaction is completed.

The screening process may be summarised as follows:

• A Notification should be submitted to the Minister at least 10 days prior to completion of the transaction.
• The Minister will then confirm whether a Notification is valid and required.
• For valid and required notifications, the Minister will issue a Screening Notice to the notifying parties as soon as practicable. The transaction cannot be put into effect until the Minister's screening review is complete.
• The Minister has 90 days to conduct a screening review but can extend this period to 135 days if needed. This period can be suspended if a Notice of Information (RFI) is issued. A party has 30 days to respond to an RFI.
• Ministerial review of the transaction will be on basis of a range of security and public order criteria and will take into consideration the European Commission’s and other Member States’ opinions.
• Minister will then clear the transaction, clear the transaction subject to conditions or prohibit the transaction. The Minister will then inform the parties in writing of its Screening Decision together with reasons for its Screening Decision.

A party can appeal a Screening Decision and/or the Minister’s decision not to provide detailed reasons. To do so, the party must issue an intent to appeal. The Minister will then assign an Adjudicator and issue an Adjudication Notice. The party must then submit a Notice of Appeal, along with relevant documentation. Where a party to the appeal does not accept the Adjudicator's decision, they may appeal to the High Court. They may also seek a judicial review if appropriate.

A number of offences are provided for in the Act, for example:

• Failure to notify a notifiable transaction before the transaction is completed;
• Providing false information in the Notification Form; and
• Putting a transaction into effect while subject to a Screening Notice.

Penalties imposed may amount to:

• On summary conviction, a €5k fine/ 6-month prison sentence/ both; or
• On conviction on indictment, a €4m fine/ 5-year prison sentence/ both.

Moreover, a failure to notify a notifiable transaction before the transaction is completed will lead to the transaction being deemed to be subject to a negative screening decision.