Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Under Section 2 of the Merger Regulation, a concentration is said to occur when:
- two or more previously independent undertakings merge or;
- one or more persons, already controlling at least one undertaking, acquire, whether by purchase of securities or assets, by contract or by other means, direct or indirect control of the whole or parts of one or more other undertakings.
The creation of a joi …

Concept of concentration

No provision for the control of concentrations is included in the Competition Act. Instead, the control of concentrations is carried out by way of a separate regulation, adopted pursuant to Section 32 of the Act, entitled Regulations on Control of Concentrations, Legal Notice 294 of 2002 (the Merger Regulation) as amended by Legal Notices 299 of 2002, 49 of 2007, 349 of 2011 and Act XVI of 2019. A schedule regarding the concentration notification form is annexed to the Merger Regulation.

Context

Under Section 2 of the Merger Regulation, a concentration is said to occur when:

- two or more previously independent undertakings merge or;

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

The creation of a joint venture that performs all the functions of an autonomous economic entity on a lasting basis is also considered to constitute a concentration. Under Section 4(3) of the Merger Regulation, to the extent that the creation of a joint venture constituting a concentration has as its object or effect the coordination of the competitive behavior of undertakings that remain independent, such coordination shall be appraised in accordance with the criteria of Section 5 of the Competition Act with a view to establishing the lawfulness of the operation under these provisions.

Moreover, as under EU law, a credit institution or an insurance company, the normal activities of which include transactions and dealings in equities for their own account, may, without giving rise to a concentration for the purposes of the Merger Regulation, temporarily hold equity securities which they have acquired in an undertaking with a view to reselling them, where they do not exercise the voting rights attached thereto for the purpose of determining the competitive behavior of that undertaking.

Pursuant to Section 2 of the Merger Regulation, control is defined as the possibility of exercising a decisive influence on an undertaking, in particular:

- through ownership or the right to use all or parts of the assets of an undertaking or;

- through rights or contracts which confer a decisive influence on the composition, voting or decisions of the organs of an undertaking “provided that even persons or undertakings not holding such rights or entitled to such rights under the contract concerned are deemed to have acquired control if they have the power to exercise the rights deriving therefrom”.

Whether occurring in Malta or outside Malta, the undertakings concerned are covered by the Merger Regulation when in the preceding financial year the aggregate turnover in Malta exceeded EUR 2,329,373.40 and each of them had a turnover in Malta equivalent to at least 10 percent of the combined aggregate turnover of the undertakings concerned.

Thresholds

Under Section 4 of the Merger Regulation, concentrations that might lead to a substantial lessening of competition in the Maltese market or part thereof are prohibited. In making this appraisal, the Director General of the Office for Competition takes into account, inter alia:

- "the need to maintain and develop effective competition on the Maltese market in view of, among other things, the structure of all the markets concerned and the actual or potential competition from undertakings located either within or outside Malta;

- whether the business, or part of the business, of a party to the concentration has failed or is likely to fail;

- the nature and extent of development and innovation in a relevant market;

- the market position of the undertakings concerned and their economic and financial power, the alternatives available to suppliers and users, their access to supplies or markets, any legal or other barriers to entry, supply and demand trends for the relevant goods and services, the interests of the intermediate and ultimate consumers, and the development of technical and economic progress provided that it is to consumers' advantage and does not form an obstacle to competition".

Under Section 4 (4), “Concentrations that bring about or are likely to bring about gains in efficiency that will be greater than and will offset the effects of any prevention or lessening of competition resulting from or likely to result from the concentration shall not be prohibited if the undertakings concerned prove that such efficiency gains cannot otherwise be attained, are verifiable and likely to be passed on to consumers in the form of lower prices, or greater innovation, choice or quality of products or services”.

Global Competition Law

531. Concept of concentration

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Les notions juridiques connexes

531. Concept of concentration

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

Les notions juridiques connexes

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