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

Regulation No 139/2004 not only covers concentrations that grant sole or joint control, but also concentrations that lead to a change of control. This is the case where there is a change from sole control to joint control  or, conversely, from joint control to sole control  following the merger. The Court of Justice considers that a concentration is deemed to be completed following a change in the …

Increase or decrease in the number of shareholders

Regulation No 139/2004 not only covers concentrations that grant sole or joint control, but also concentrations that lead to a change of control. This is the case where there is a change from sole control to joint control  or, conversely, from joint control to sole control  following the merger. The Court of Justice considers that a concentration is deemed to be completed following a change in the form of control of an existing undertaking which, previously exclusive, becomes joint, only if the joint venture resulting from such a transaction performs on a lasting basis all the functions of an autonomous economic entity . A change in the nature of control also occurs in the case of the divestment of its shares by one of three shareholders of a company to the other two where the sale includes the acquisition of joint control by those two shareholders  or in case of acquisition by a company of a 50% stake in the capital of another, where the other half is held by a third party with whom it already exercises joint control over another undertaking . On the other hand, the switch from joint control by three shareholders holding all the veto rights, to control by four shareholders with no commonality of interests and of which none will have the power to block unilaterally any key decisions, does not give rise to a concentration .

Commission Decision JV.37 of 21 March 2000, B Sky B/Kirch Pay TV, LawLex200800000564JBJ.

For the principle see Commission Decision M.023 of 28 November 1990, ICI/Tioxide, LawLex200400003176JBJ; M.126 of 28 April 1992, Accor/Wagons-Lits, LawLex200500004232JBJ; M.400 of 28 April 1994, Allied Lyons/HWE-Pedro Domecq, LawLex200400003172JBJ; M.1033 of 23 December 1997, AXA-UAP/AXA Aurora (not available in English). See also Commission Decision M.304 of 24 February 1993, Volkswagen AG/VAG (UK) LTD, LawLex200400002499JBJ, acquisition of the aggregate capital of an undertaking on which an operator previously exercised joint control only as a result of its participation in a coordination committee; M.563 of 17 March 1995, British Steel/UES, LawLex200400003173JBJ: acquisition by a shareholder holding 64% of the shares in a company, of the remaining 36%; M.1911 of 27 April 2000, DOW/BSL, LawLex200400003157JBJ: acquisition of 20% of the capital of an undertaking in which the investor already holds a 80% shareholding.

Case C-248/16 Austria Asphalt GmbH & Co. OG, Judgment of 7 September 2017, LawLex201700001378JBJ: the Commission may not find that a change in the control of an undertaking which, previously exclusive, becomes joint is covered by the concept of concentration even if the undertaking does not perform on a lasting basis all the functions of an autonomous economic entity, insofar as such an interpretation would effectively extend the scope of the preventative control laid down in that regulation to transactions which are not capable of having an effect on the structure of the market in question and would, at the same time, limit the scope of Regulation No 1/2003, which would then no longer be applicable to such transactions, even though they may lead to coordination between undertakings within the meaning of Article 101 TFEU;  such an interpretation would also lead to an unjustified difference in treatment between, on the one hand, undertakings newly created as a result of the transaction in question, which would be covered by the concept of concentration only if they performed on a lasting basis all the functions of autonomous economic entities, and, on the other, undertakings existing before such a transaction, which would be covered by that concept regardless of whether, once the transaction is completed, they performed those functions on a lasting basis.

Commission Decision M.3440 of 9 December 2004, EDP/ENI/GDP, LawLex200700000224JBJ.

Commission Decision M.376 of 22 October 1993, Synthomer/Yule Catto, LawLex200400003154JBJ.

Commission Decision JV.12 of 22 December 1998, Ericsson/Nokia/Psion/Motorola, LawLex200800000586JBJ.

European Competition Law

300. Increase or decrease in the number of shareholders

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300. Increase or decrease in the number of shareholders

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise