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

According to recital 20 of the regulation, “transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time” should be treated as as a single concentration. Further, the Commission Consolidated Jurisdictional Notice  states that, “the principle that several transactions can …

Inseparable transactions

According to recital 20 of the regulation, “transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time” should be treated as as a single concentration. Further, the Commission Consolidated Jurisdictional Notice  states that, “the principle that several transactions can be treated as a single concentration under the mentioned conditions only applies if the result is that control of one or more undertakings is acquired by the same person(s) or undertaking(s). First, this may be the case if a single business or undertaking is acquired via several legal transactions. Second, also the acquisition of control of several undertakings — which could constitute concentrations in themselves — can be linked in such a way that it constitutes a single concentration”.

If a conditionality de jure or de facto can mean that multiple transactions are considered as a single concentration, it may not always be sufficient . The existence of a single concentration does not arise from transactions which, although ancillary to the concentration, have no direct functional link with its implementation, such as a public bid launched after the acquisition of control of the target undertaking .The same applies when independent undertakings acquire control of different targets, as in the case of an exchange of assets, through three interdependent but functionally unrelated transactions . In such circumstances, even if the three interdependent mergers in question do not constitute components of a single concentration, the Commission may analyze the first and second transactions separately, while taking into account, in the decision at issue, the respective effects they have on each other . 

The EU court has held that, in a situation where a single undertaking is acquired via several legal transactions, the relevant issue is not when the acquisition of all the shares of a target undertaking took place but when the acquisition of control took place: where the acquisition of de facto sole control of a single target undertaking took place by means of an initial transaction alone, subsequent transactions by which the acquirer obtains additional shares in that undertaking are no longer relevant for the purpose of acquiring control and therefore it cannot be said that all the transactions completed the single concentration .

Sales of shares taking place simultaneously between the same seller and the same purchaser and the purpose of which is to acquire exclusive control over four companies which were legally distinct but which exercised the same economic activity , or a set of acquisitions of control by which an undertaking acquired control over another operator provided that the latter would simultaneously take control over other undertakings are considered as one and the same concentration . A concentration within the meaning of Article 3(1) may also arise in the case of a number of formally distinct legal transactions where none of those transactions would be carried out without the others . This is the case where several contracts are entered into with the effect of changing a joint sales organization for eleven legally independent undertakings into a full-function undertaking jointly controlled by the parties . Even if two concentrations are not concurrent, they constitute one and the same transaction where they are recorded in a single document on the same day, with the parties stipulating furthermore that one transaction should not take place without the other  or where a link makes interdependent two parallel acquisitions of control carried out on the same day by the same purchaser, of two undertakings belonging to distinct sellers, insofar as the purchaser would not have made those acquisitions at that price without the profit expected from the combination of their two activities . Finally, pursuant to Article 5(2) of the regulation, the various individual concentrations having taken place within a two-year period between the parties must be considered as a single transaction between the two groups of companies arising on the date of the last transaction . In contrast, when a concentration affecting the same markets but not the same parties is notified one day after another transaction, the “first come, first served” approach should be used to ensure that the first operation will be assessed independently from the second, taking into account as a starting point the structure of the existing market on the day of its notification .

Case T-704/14 Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ: upheld in Case C-10/18 P Mowi ASA, Judgment of 4 March 2020, LawLex202000000314JBJ. See also Commission Decision M.409 of 9 March 1994, ABB/Renault Automation, LawLex200400003148JBJ: the transaction by which an undertaking acquires a 50% participation in the capital of a subsidiary wholly-ow10-ned by another undertaking, to which the latter has transferred a part of its assets, can be regarded as giving rise to two different concentrations insofar as the nature of the control and the relevant product markets are different in both cases. Also see Commission Decision M.197 of 30 April 1992, Solvay-Laporte/Interox, LawLex200500004149JBJ, the operation by which a joint venture is divided into two separate undertakings, both returning to each parent company, should be seen as two concentration operations despite the fact that both concentrations arise out of one Master Agreement and are considered as inter- conditional between the parties insofar as the economic and legal result of the operation is that two independent undertakings will each move from a position of joint to sole control for two different sets of specific assets and products.

Case T-282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II-319, LawLex200700001493JBJ; Commission Decision No M.861 of 18 Decembrt 1996, Textron/Kautex, LawLex200400002565JBJ : case of a series of successive acquisitions all constituting  a single concentration as completion of each of each transaction is conditional upon completion of the previous one; M.4048 of 12 June 2006, Sonae Industria/Tarkett/JV, LawLex200800000506JBJ, creation buy two competitors of two separate joint ventures, one for distribution and the other for production, resulting from the same agreement, pursuing the same common economic purpose, operating according to the same rules of governance for the distribution of the shares, voting rights, powers of decision and representatives on the board of directors and having the same chairman.

Commission Decision M.2650 of 26 June 2002, Haniel/Cementbouw/JV (CVK), LawLex200700002007JBJ.

Commission Decision M.2568 of 9 April 2002, Haniel/Ytong, LawLex200500004408JBJ.

Commission Decision M.2926 of 16 September 2002, EQT/H&R/Dragoco, LawLex200800000508JBJ.

Commission Decision M.1016 of 20 May 1998, Price Waterhouse/Coopers & Lybrand, LawLex200500004164JBJ; M.1630 of 18 January 2000, Air Liquide/BOC, LawLex200500005393JBJ.

Commission Decision M.6214 of 19 October 2011, Seagate/HDD, LawLex201700000645JBJ.

Case C-10/18 P Mowi ASA, Judgment of 4 March 2020, LawLex202000000314JBJ. 

Case T-312/20 EVH v Commission, Judgment of 17 May 2023, not available in English: when several undertakings acquire control of different assets, so that a distinct pooling of resources takes place for each of the acquiring undertakings, and the impact on the market of each of these acquisitions of control is different, these interdependent operations, which are not intended to produce the same result, are not unitary in essence and therefore do not have to be examined together, as transactions forming part of a single concentration.

Case T-312/20 EVH v Commission, Judgment of 17 May 2023, not available in English.

Case T-704/14 Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ, also adding that, in a situation in which control of a single target undertaking has been acquired by means of one operation, that operation should not necessarily be considered to form part of a single concentration for the sole reason that the purchase of shares that resulted in the taking of control and a subsequent mandatory public offer are interdependent. 

Commission Decision M.957 of 19 September 1997, L'Oréal/Procasa/Cosmétique Iberica/Albesa (not available in English).

Commission Decision M.1188 of 18 June 1998, Kingfisher/Wegert/ProMarkt, LawLex200800000498JBJ; M.2420 of 30 October 2001, Mitsui/CVRD/Caemi, LawLex200400002681JBJ.

European Competition Law

297. Inseparable transactions

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297. Inseparable transactions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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