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Screening Ireland’s future transactions

The Screening of Third Country Transactions Act 2023 (the “2023 Act”) regulates and monitors financial transactions involving third countries. Third countries are nations that are not part of the European Union or the European Economic Area (EEA), for example the United States and the United Kingdom. The primary objective of this bill is to enhance Ireland’s national security, protect its economic interests, and align its financial regulations with international standards. The 2023 Act was signed into law by the President on the 31st of October 2023 and it is now envisaged that the 2023 Act will be commenced in quarter three of 2024 with the intention to start the screening mechanism in early September 2024.

Rationale Behind the 2023 Act

The introduction of the 2023 Act can be attributed to several factors:

  • National Security Concerns: In an era of evolving global threats, it is crucial for Ireland to safeguard its national security. By scrutinising transactions with third countries, the government aims to prevent potential threats and illegal activities.
  • Economic Protection: Ireland’s economy is deeply integrated into the global market. The 2023 Act seeks to protect the country’s financial interests and ensure that international transactions do not pose risks to its economic stability.
  • International Standards: The 2023 Act aligns Irish financial regulations with international standards, enhancing the country’s reputation as a responsible and secure destination for international trade.

Key Provisions of the 2023 Act

Obligations to notify notifiable transactions

The parties to a “notifiable transaction” (as defined below) will be obliged to notify the transaction to the Minister for Enterprise, Trade and Employment not less than 10 days before the transaction is completed. As soon as practicable following receipt of a notification, the Minister will issue a written “screening notice” to the parties following the commencement of the review and will issue a “screening decision” within 90 days from the date on which the screening notice in relation to the transaction is issued.  The 90-day review period can be extended to 135 days.

A notifiable transaction is defined in section 9 of the 2023 Act as a third country undertaking or a person connected with such an undertaking, as a result of the transaction—

(a) acquires control of an asset in the State (the Republic of Ireland), or changes the percentage of shares or voting rights it holds in an undertaking in the State—

  • from 25 per cent or less to more than 25 per cent, or
  • from 50 per cent or less to more than 50 per cent;

(b) the value of the transaction is equal to or greater than—

  • where the Minister has not prescribed a figure, €2,000,000, for one natural person or body corporate in a period of 12 months, or
  • the amount prescribed by the Minister; and

(c) the transaction relates to, or impacts upon, one or more of the following matters:

  • 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;
  • critical technologies and dual use items, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear technologies as well as nanotechnologies and biotechnologies;
  • supply of critical inputs, including energy or raw materials, as well as food security;
  • access to sensitive information, including personal data, or the ability to control such information;
  • the freedom and pluralism of the media.

All three conditions (a) to (c) must be fulfilled in order for the transaction to be considered notifiable.

Powers to Call in

The 2023 Act grants the Minister wide powers to ‘call-in’ a transaction for review even if the criteria above have not been met where the Minister has reasonable grounds to believe that the transaction might impact or be likely to impact security or public order of the State.

Who has the obligation to notify?

The obligation to notify applies to all parties to a notifiable transaction except for any party that is unaware of the transaction. The 2023 Act provides for a process under which a party to a notifiable transaction can consent to another party notifying on its behalf.

Retrospective Application

The Minister has the power to review any transaction that completed up to 15 months before the commencement of the relevant provisions of the 2023 Act.

Penalties

To deter non-compliance, the 2023 Act introduces stringent penalties for companies that fail to meet their obligations. Penalties are set out in section 6 of the 2023 Act and include the following:

  • on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or to both, or
  • on conviction on indictment, to a fine not exceeding €4,000,000 or to imprisonment for a term not exceeding 5 years, or to both

Challenges and Concerns

While the 2023 Act is a significant step toward enhancing Ireland’s national security and economic protection, it also raises concerns:

  • Compliance Costs: Businesses may face increased compliance costs to meet the bill’s requirements, which could impact their competitiveness in the international market.
  • Trade Disruption: Stricter regulations may slow down the processing of international transactions, potentially affecting the efficiency and speed of cross-border trade.
  • Data Privacy: The bill may require the collection and sharing of sensitive information, raising questions about data privacy and cybersecurity.

The 2023 Act marks a significant development in the regulation of international transactions with third countries. While it aims to enhance national security and protect the economy, it also introduces challenges for businesses and raises concerns about data privacy. Striking the right balance between security and economic efficiency will be a key challenge as this bill is implemented, and it will be interesting to see how it shapes Ireland’s international trade landscape in the years to come.