The drinks trade in Ireland has certainly been posing challenges for competition regulators. After the Irish Distillers/Cooley debacle and the row over the price of the pint where a Government minister imposed a prices order on those publicans who would not collectively agree to reduce their prices, Guinness is now centre stage. But the manner in which recent events unfolded could hardly have been anticipated.

Guinness notified Enterprise, Employment and Trade Minister, Mary Harney, of its proposal to raise its stake in United Beverages Holdings from 30 per cent to 100 per cent. Under the Mergers Act 1978, the Minister has 30 days to act: either to clear the merger or, if she had concerns, to refer it to the Competition Authority for closer examination and a recommendation.

If the Minister did nothing within the 30 days, the merger is cleared by default. Tight deadlines are always crucial in merger control regimes. The Minister had concerns, so the Department referred the proposal to the Authority.

But it miscalculated the 30 days. So the Authority duly sent back the notification because the Minister was out of time. Embarrassment all around.

Then the Minister threatened to invoke powers available to her under a separate statute, the Competition Act, if the transaction went ahead. But Guinness and UBH had followed all the rules and were under no legal obligation to do anything more.

The obvious common sense solution of simply re-notifying and starting the 30-day clock again is not, apparently, legally possible. Instead, the parties decided to fall back on a very unsatisfactory procedure in this context: a "voluntary" notification to the Competition Authority to assess whether the transaction constitutes a potentially anti-competitive agreement. In response, the Minister lifted her threat.

Mistakes will happen in any organisation, public or private. But there is something wrong and manifestly unfair in a system where the Minister can recover from failure to meet a deadline by threatening to invoke her powers under another Act.

Why bother having a deadline if it can be got over so easily? Does the whole episode mean therefore that the Mergers Act is a mess? Not really. The basic structures and procedures in the Mergers Act are sound. For example, the Act affords the Minister or the Competition Authority flexibility to negotiate possible compromise solutions to protect the public interest, the "fix it first loop" as it is sometimes known.

Admittedly, the Act is crying out for redrafting. Many innocuous mergers, for example, have to be notified according to a literal reading of the Act. It could easily have been tightened up before now and business saved unnecessary expense.

But the real bogey is the uncertain scope of the Competition Act and its perceived overlap with the Mergers Act. Some commentators - myself included - would argue that mergers and acquisitions are, by analogy with EU law, outside the scope of Section 4 of the Competition Act which prohibits anti-competitive agreements.

The Competition Authority takes a different view. Clearly this kind of uncertainty facing business should be removed sooner rather than later.

Let's put the legal arguments to one side, however, and focus on public policy objectives. The essential purpose of any merger control regime is to have some mechanism in place to vet large-scale mergers in advance and to take action against those - the exceptions undoubtedly - considered likely to act against the public interest in the long term.

Such mergers should either be prohibited or subject to preconditions. This vetting exercise is one of economic rather than legal judgment. That is why it is a completely different exercise to, say, assessing whether past or ongoing arrangements between firms on matters such as prices, distribution, joint tendering, etc amount to breaches of the Competition Act.

Let's consider then some of the public policy questions which could arise in the Guinness/UBH case. Guinness arguably already "controls" UBH in a competition sense by virtue of its 30 per cent holding in the company. So would raising it to 100 per cent really make much difference in the long-term? Would the Minister's concerns be allayed if, say, some of UBH's lines of business in the manufacture or distribution of soft drinks or beer were sold off to third parties? Or if Guinness were asked to divest itself of some of its existing interests? Could the outcome of the current Brussels review of the Guinness/Grand Met alliance have a bearing on the UBH proposal?

These public policy issues will now be considered in the contrived setting of a notification to the Competition Authority to decide if the proposal is per se an anti-competitive agreement. In other words, merger control by the back door. This is wrong. It is a misuse of our competition laws. It is also creating undesirable uncertainty for business.

The Minister has clearly been landed in a very awkward situation. She should now seek to solve the problem at its source by:

Introducing a Bill to remove uncertainty about mergers and the Competition Act, and;

Depoliticising competition law enforcement by removing the Ministerial powers to intervene under the 1991 Act, and leave public enforcement to the Authority.

That would be the fairest route for everyone, including the Minister.