Minority Shareholdings in Competing Companies – Lessons from Germany?
23 Pages Posted: 27 Mar 2014
Date Written: April 8, 2011
This contribution takes up the discussion triggered by the judgment of the European General Court in Aer Lingus on the adequacy of EU antitrust and merger control rules on non-controlling minority participations. It considers the need for reform, and in particular whether the European Merger Regulation should be expanded to cover the acquisition of non-controlling minority interests. The author analyses the situation under EU antitrust and merger control rules, and compares them to German law, which subjects certain acquisitions of non-controlling minority interests to merger control.
The author concludes that Articles 101 and 102 TFEU in principle form a sufficient basis to address competition issues related to most non-controlling minority shareholdings, but notes a marked absence of enforcement activity in this area. He then points to shortcomings in the German merger control system, including uncertainty over which minority acquisitions are subject to notification requirements, and difficulties that arise in applying the same prohibition standard to acquisitions of controlling interests and to transactions regarding companies that should in principle remain separate and in competition with each other. Against this background, the author cautions against an expansion of EU merger control rules, and advocates instead increased enforcement of Articles 101 and 102 TFEU in the area of minority participations.
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