The Legal Treatment of Minority Shareholdings Under EU Competition Law: Present and Future
University of Piraeus - Essays in Honour of Professor Panayiotis I. Kanellopoulos, Sakkoulas Publications, Athens 2015, 861-886
26 Pages Posted: 30 Jul 2015 Last revised: 3 Jan 2017
Date Written: April 28, 2015
The debate on the regulation of minority shareholdings as a type of “structural link” between competing undertakings is not a new one in the sphere of EU competition law. As a matter of policy, the incomplete and rather divisive treatment of minority shareholdings under the current EU merger control and antitrust rules is considered problematic. This is all the more true since this division is not based on sound economic grounds. Indeed, there are EU and non-EU jurisdictions that approach the problem of the competition law treatment of minority shareholdings rather differently for all good reasons. The need and desirability, however, to go beyond the existing status quo in the EU and ingrain innovation into the law is often challenged, either due to a theoretical opposition to the existence of a significant gap authorising regulatory intervention or due to fears of any change being overbroad and thus potentially doing more harm than good.
This paper provides an overview of the theories of harm and the potential anticompetitive nature of minority share ownership (Part II); analyses the existing EU competition law framework as it applies to minority shareholdings and outlines the extent of the gap in the law (Part III); draws a parallel with regulatory regimes dealing with this problem in other major jurisdictions (Part IV); presents the reform proposals put forward by the Commission and the progressive change of heart in terms of EU competition policy (Part V); and finally it concludes with some remarks as to the future outlook and possible challenges in addressing the legal gap (Part VI).
Keywords: antitrust, minority share ownership, minority share acquisitions, shareholdings, structural links, control rights, firm incentives, anticompetitive effects, comparative competition law, EU competition law, merger control, competition policy
JEL Classification: D21, D43, K21, L11, L13, L40, L41
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