EU Merger Control and Non-Controlling Minority Shareholdings: The Case Against Change
After several years of debate fuelled by the General Court’s confi rmation in Aer Lingus1 that the EU Merger Regulation2 does not apply to the acquisition of non-controlling minority shareholdings,3 the European Commission (the Commission) has proposed expanding the EUMR to capture such transactions on the ground that the Commission “does not seem to have the tools to systematically prevent anticompetitive effects deriving from such structural links”.4 The Commission’s proposal raises two principal questions—is there a material gap in the EUMR’s scope of application and, if there is, is that gap large enough to justify subjecting a potentially signifi cant number of transactions to EU merger control? As with any expansion of regulatory oversight, the burden rests on the agency proposing such expansion, in this case the Commission, to demonstrate the need for change. The Staff Working Document acknowledges the existence of only “limited” empirical evidence of anticompetitive harm arising from
Mind the Gap? An Analysis from a German Competition Law Perspective of the European Commission’s Proposal to Review Non-Controlling Minority Shareholdings Under European Merger Control Law
The following article analyses the European Commission’s proposal to bring acquisitions of non-controlling minority shareholdings under its jurisdiction. As a consequence, the European Commission would have the power to decide types of cases and to block mergers, which are generally not subject to merger control law in the majority of the Member States of the European Union. Additionally, this could lead to tension with regulatory systems in EU Member States, which review non-controlling minority shareholdings already, and to additional burden for companies. In contrast to many other articles about this topic, it examines in detail the opinions submitted in response to the European Commission’s public consultation with regard to the proposed requirement for notification (“competitively significant link”), the form of the notification and the timing for such notifications. Many stakeholders have criticised the European Commission’s proposal, inter alia by stating that these acquisitions could be caught by the prohibition of anti-competitive agreements under Art. 101 Treaty on the Functioning of the European Union. The authors use German merger control law as a proxy to prove the existence and the extent of the enforcement gap referred to by the European Commission. The German Federal Cartel Office and the German courts have considered acquisitions of non-controlling minority shareholdings, in which the acquirer gained a “competitively significant influence” over the target, to have anti-competitive effects. However, the importance of the enforcement gap seems to be limited in practice.
Introduction to Dutch Law for Foreign Lawyers
Part 1 Dutch legal system: history sources judicial organization legal education and the legal profession classification. Part 2 Private law: family law property law law of obligations representation and procuration legal persons law of succession commercial law air law civil procedure private international law. Part 3 Public law: constitutional law administrative law criminal justice system tax law economic law. Part 4 Labour law. Part 5 Legal philosophy.