Non-Controlling Minority Shareholdings in EU Merger Control

摘要

Transactions between undertakings fall within the scope of European Union (EU) merger control if (1) the transaction has a so-called Community dimension, that is, certain turnover thresholds are met and (2) there is a change of control in the undertaking. If no control is transferred, the European Commission, in charge of investigating whether the proposed transactions will significantly impede competition, has no competence to review the transaction. The European Commission has found this situation to be unsatisfactory, as some transactions - while not constituting a change of control - nevertheless pose a risk to effective competition. Together with other changes, the Commission therefore proposed a change to Council Regulation (EC) No 139/2004, to include a provision that allows the Commission to investigate the acquisition of non-controlling minority shares. This article, first, provides background on the European Commission's reasoning. The arising competition concerns in relation to minority shareholdings, and, thereafter, the European Commission's proposed changes are also discussed. This is done by looking at jurisdictions in which the acquisition of non-controlling minority shareholdings is already subject to merger control. The authors conclude by giving their view on how the initiative should best proceed.