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 Article 3(1) of Regulation No 139/2004 of 20 January 2004, a concentration is deemed to arise where a change of control on a lasting basis results from:
a) the merger of two or more undertakings or parts of undertakings, or
b) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, of direct or indirect control of the whole …

Definition of means and results

According to Article 3(1) of Regulation No 139/2004 of 20 January 2004, a concentration is deemed to arise where a change of control on a lasting basis results from:

a) the merger of two or more undertakings or parts of undertakings, or

b) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, of direct or indirect control of the whole or parts of one or more other undertakings, whether by purchase of securities or assets, by contract or by any other means.

In order to characterize the concentration, EU law combines a means-based definition with a results-based definition. First, by looking to the legal means, the regulation isolates transactions which affect an undertaking's structure, i.e. mergers of all types. Then, it focuses on the result of the transaction, i.e. the acquisition of control of one or more undertakings. In this case, the legal form of the acquisition is irrelevant; it may be direct or indirect, include all or part of the other undertaking and be carried out by purchase of securities or assets, contract or “by any other means”. The concept of control is defined broadly in Article 3(2) as, “the possibility of exercising decisive influence on an undertaking” . According to the General Court, only the acquisition of control in the formal sense is relevant and not the actual exercise of such control: where the acquisition of de facto sole control of a single target undertaking takes 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 . By contrast, an internal restructuring within a group of undertakings cannot be classified as a concentration since it does not lead to a change in the quality of control of one undertaking .

Article 3(2) "Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking […]".

Case T-704/14 Marine Harvest, Judgment of 26 October 2017, LawLex201700001735JBJ.

Commission Consolidated Jurisdictional Notice No 2008/C 95/01 under Council Regulation No 139/2004 on the control of concentrations between undertakings of 10 July 2007, at pt 51. By contrast, a merger or an acquisition of control arising between two undertakings owned by the same State constitutes a concentration where it concerns independent economic units having an autonomous power of decision. See Jurisdictional Notice, at pt 153.

European Competition Law

291. Definition of means and results

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291. Definition of means and results

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise