European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

A concentration is deemed to arise where a change of control results from the merger of two or more undertakings or parts of undertakings. Article 3(1) of the regulation includes all merger transactions within its scope of application, i.e. merger by absorption, merger by creation of a new company or de facto merger. The text no longer includes, as the 1989 regulation did, a provision that the mer …

Merger between undertakings

A concentration is deemed to arise where a change of control results from the merger of two or more undertakings or parts of undertakings. Article 3(1) of the regulation includes all merger transactions within its scope of application, i.e. merger by absorption, merger by creation of a new company or de facto merger. The text no longer includes, as the 1989 regulation did, a provision that the merger must take place between two previously independent undertakings and therefore no longer excludes, at least in theory, intra-group mergers from its scope of application .

The merger takes place when two or more undertakings come together to create a new undertaking and disappear as separate legal entities . This is the case of a full merger between the parties which allow them, within a new entity, to acquire sole control over a group of cooperatives .

A merger may also result from the absorption of one undertaking by another, the latter retaining its legal identity while the absorbed undertaking ceases to exist as an independent legal entity. A merger by absorption resulting in the creation of a new entity constitutes a concentration . The same applies to a transaction by which one undertaking absorbed another undertaking and then changed its corporate name . By contrast, a transaction by which the target undertaking merged with the subsidiary of the purchasing undertaking and was therefore controlled by the latter, does not constitute a merger but an acquisition of control within the meaning of Article 3(1)(b) of Regulation No 139/2004 .

The Regulation applies to cases of de-mergers or divisions of joint ventures even if the division transaction was imposed by law . Thus, a transaction by which the joint venture was divided into two separate undertakings, each reverting to the two parent companies, is considered as two merger transactions .

Even if it does not fulfill the required legal conditions, a transaction may be classified as a merger where it leads to the same economic result. Thus, even without constituting a merger in the legal sense, the combining of the activities of previously independent undertakings, which results in the creation of a single economic unit, is considered to be a merger . The existence of a single, permanent economic management of independent entities may lead to a finding of a de facto merger . Concluding combination agreements pursuant to which the constituent companies function collectively as a single economic unit  or economically interdependent transactions based on a same contractual document carried out simultaneously, which group together three independent operators within a single economic group , are thus considered as concentrations, even without any cross-shareholdings.

The Commission however still refers to the "merger between previously independent undertakings": See Jurisdictional Notice No 2008/C 95/01 of 10 July 2007, at pt 9.

See Commission Decisions M.445 of 7 June 1994, BSN/Euralim (not available in English); M.938 of 15 October 1997, Guinness/Grand Metropolitan, LawLex200500004402JBJ. 

Commission Decision M.1016 of 20 May 1998, Price Waterhouse/Coopers & Lybrand, LawLex200500004164JBJ.

Commission Decision M.2824 of 27 August 2002, Ernst & Young/Andersen Germany, LawLex200800000484JBJ.

Commission Decision M.1313 of 9 March 1999, Danish Crown/Vestjyske Slagterier, LawLex200400002628JBJ.

Commission Decision M.147 of 18 December 1991, Eurocom/RSCG; M.312 of 15 March 1993, Sanofi/Yves St-Laurent; M.642 of 26 October 1995, Chase Manhattan/Chemical Banking Corporation, LawLex200400003155JBJ; M.1016 of 20 May 1998, Price Waterhouse/Coopers & Lybrand, LawLex200500004164JBJ; M.1383 of 29 September 1999, Exxon/Mobil, LawLex200400002629JBJ; M.1806 of 26 July 2000, AstraZeneca/Novartis, LawLex200500004487JBJ.

Commission Decision M.1378 of 9 August 1999, Hoechst/Rhône-Poulenc, LawLex200400003063JBJ.

Commission Decision M.2510 of 24 September 2001, Cendant/Galileo, LawLex200800000482JBJ.

Commission Decision M.138 of 19 December 1991, CAMPSA.

Commission Decision M.197 of 30 April 1992, Solvay-Laporte/Interox, LawLex200500004149JBJ.

See Jurisdictional Notice No 2008/C 95/01 of 10 July 2007 at pt 10.

See Commission Decision M.660 of 7 December 1995, RTZ/CRA, LawLex200400003156JBJ: agreement by which the shareholders of two undertakings are in the same position, as regards capital and dividends, as if they held shares in a group controlling both companies; M.1878 of 22 May 2000, Pfizer/Warner-Lambert, LawLex200400003153JBJ: agreement by which an undertaking merged with a wholly-owned subsidiary of another, created specifically for that purpose, in order to become the wholly-owned subsidiary of the parent company.

European Competition Law

292. Merger between undertakings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

292. Merger between undertakings

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise