Introduction
This is the first in a three-part series focusing on digital infrastructure M&A in Ireland. It follows Simmons & Simmons advising on all three of the most high-profile digital infrastructure M&A deals in Ireland in the last year, across telecoms towers, data centres and fibre.
Overview
Telecoms towers M&A activity in Ireland continues to be driven by 5G densification, growth in IoT, network sharing arrangements between mobile network operators ("MNOs"), divestment of non-core assets by state and semi-state bodies, and continued sponsor appetite for yield-style digital infrastructure assets.
Transacting in the telecoms towers space requires successfully navigating complex site and access arrangements, shared and wholesale use models and a heightened regulatory environment. We explore the core elements which dealmakers should consider when structuring and executing telecom towers M&A in Ireland.
Carve-outs as a common feature of deal structuring
Many telecoms towers deals are structured as carve-outs from wider infrastructure businesses or telcos. In Ireland this most commonly takes the form of a pre-sale transfer (or "hive-down") of the business and relevant assets, employees and operations into a special purpose vehicle ("SPV"), often by way of a tax-neutral, share-for-undertaking swap, with the SPV ultimately being acquired by the buyer. This has stamp duty advantages for the buyer, versus an asset purchase.
At an early stage, sellers should focus on devising a clear and realistic separation plan, informed by tax, operational, financial and legal input to create a transparent road map for the hive-down, the sale and beyond. This should identify the need for any transitional or post-sale services that may need to be provided by the remaining business / seller.
For buyers, the hive-down should be treated as a deal in itself and carefully diligenced with all the considerations that accompany an asset transfer. This includes ensuring sufficiency of assets, obtaining third party consents (and where unavailable, interim solutions), wrong pockets mechanisms, scoping any transitional services that may be required (for example shared IT, back-office, access and maintenance arrangements), the TUPE transfer of relevant employees (including information and consultation obligations), ongoing licensing arrangements for any brands or trade marks used at sites, and whether any master services agreements ("MSAs") or built-to-suit agreements ("BTS agreements") with operators need to be revised.
A smart starting point for diligence
The fulcrum of diligence is typically the site database prepared by the seller which specifies, amongst other details, each tower site’s location, the passive infrastructure located there, tower age, ownership status/tenant mix and revenue. The seller should ensure the correctness of the site database as buyers will typically insist that it is warranted. Indeed, it is not unknown for certain elements (most commonly revenue) of the site database to be subject to indemnity protection if the actual revenue was lower than provided for in the site database.
The site database can be used by the buyer to calibrate a sampling methodology for the detailed review of the underlying real estate arrangements for the sampled tower sites. This lets the buyer efficiently assess risk without reviewing the entire portfolio. A sample of 5% to 10% of the total portfolio, stratified to capture a mix of locations, customers and ownership arrangements, is typical and ought to identify any systemic issues. Rooftop sites raise a distinct set of issues around landlord consents, service charge exposure and shared building access, while greenfield sites can carry unregistered title, easement gaps and unresolved third-party occupancy issues that are especially relevant for portfolios assembled over a long period of time.
Buyers should agree an escalation protocol in advance, so that a materially adverse finding in the initial sample triggers a broader or targeted follow-up review, and should combine the sample deep-dive with a light-touch title/registry desk-top review across the full portfolio. Where W&I/R&W insurance and/or acquisition finance is being used, the sampling methodology should be agreed in advance with the underwriter and/or lender(s). The sampling review should be separate from, and run in parallel with, a review of any MSAs and BTS agreements which typically operate on a portfolio-wide basis.
Title Insurance
Many Irish telecoms towers portfolios benefit from title insurance policies which typically cover against financial loss arising from defects in, or challenges to, a tower site’s title or property that were not identified when the site was acquired or leased. This can include unknown third‑party ownership claims, gaps or errors in the land registry or chain of title, invalidity or unenforceability of the tower ground lease or easements, missing rights of way or access/utility rights, undisclosed restrictive covenants, and certain existing liens, charges or encumbrances.
Where such a policy is in place it can be used in conjunction with a thoughtfully calibrated sampling review to abbreviate diligence around title and connected points without compromising on protection. In practice, title insurance is often procured separately from any W&I/R&W policy (which typically carves out title), and buyers should confirm the scope, sub-limits and any coverage gaps between the two, particularly for portfolios that mix registered and unregistered title.
BTS Arrangements
Towers businesses frequently enter BTS arrangements with MNOs to finance, construct and deliver new towers to meet MNOs’ specific requirements. In return, MNOs typically provide long‑term tenancy commitments. As such, BTS arrangements go to long-term value and risk and should be a central pillar of diligence.
Key considerations include the robustness of the MNO’s commitments (including minimum volumes, termination rights and any step‑down mechanisms), construction and delivery obligations (including milestones, delay/liquidated damages regimes, acceptance criteria and under‑utilisation remedies), the pass‑through of capital, operating and upgrade costs, planning and permitting risk, exclusivity commitments, co‑location rights for other tenants, and any caps on future tenants/loadings.
Careful analysis around the transferability and change-of-control provisions in BTS agreements is crucial to any sale (and, in a carve-out deal, the pre-sale transfer). As well as the likely need for MNO consent, in certain carve-out deals (where only part of a portfolio is being sold) it may be necessary to split an existing BTS agreement, typically documented as a deed of partial novation or by way of a pair of mirrored replacement BTS agreements. This will require three-way engagement between buyer, seller and MNO, and careful thought should be given to preserving anchor tenant economics on any split, including any right of first refusal or right of first offer over new build sites.
MSAs
MSAs form a critical pillar of many towers businesses, codifying the standard commercial, technical and legal terms through which an MNO or other multi-site tenant can access the towerco’s infrastructure. As well as covering aspects such as pricing structures, service levels/commitments, maintenance and upgrade regimes, ordering and acceptance processes and remedies for under‑performance, they also typically deal with key risk allocation points such as liability caps, termination, co‑location and exclusivity parameters and change‑of‑control provisions that are crucial in an M&A context.
The transferability and change-of-control provisions within MSAs should be assessed for any sale (and, in a carve-out, the pre-sale transfer). As with BTS agreements, where there is a partial sale of a portfolio, it may be necessary to split an existing MSA (typically by way of partial novation or replacement mirrored MSAs), necessitating three-way engagement between buyer, seller and customer. Consideration should also be given to the interaction between the MSA's pricing mechanics (which are often CPI-linked) and any digital services, small-cell or in-building solutions riders bolted onto legacy MSAs, both of which can materially affect portfolio value.
Regulatory Dimensions
Telecom towers M&A in Ireland will typically require mandatory notification under the Screening of Third Country Transactions Act 2023, where the buyer is non-EU/EEA/Swiss-controlled. During 2025, a total of 102 notifications were made, of which 26 proceeded to a full review with an average review time of 41 days. Of those 26 deals, 24 were approved without any conditions and two were approved with conditions.
From an antitrust perspective, the Irish Competition and Consumer Protection Commission ("CCPC") is increasingly scrutinising M&A in the digital infrastructure space: a recent telecoms tower deal was sent for a Phase 2 review and approved with conditions (including a forced divestment of part of the buyer’s portfolio). Whilst recent increases in the mandatory notification turnover thresholds are helpful, the CCPC enjoys a call-in power for deals that fall below the thresholds, and the increased scrutiny noted above is relevant to how that power is exercised.
In addition, sector-specific engagement with the Commission for Communications Regulation may be required where the target holds any spectrum authorisations or is an authorised undertaking, and non-EU state-linked capital may trigger notification under the EU Foreign Subsidies Regulation. Depending on the nature of the target assets, the NIS2 Directive and the Critical Entities Resilience Directive may also merit buy-side analysis.
At an early stage, dealmakers should conduct careful FDI, antitrust, sectoral and subsidy control analysis, factor the need for such clearances into their timetables, and consider how risk is handled during the interim period between signing and closing.
