Merger Control
MERGER & COMPETITION LAW
‘Merger’
o Transaction > 2 or more previously independent entities => Come under
common control
o Certain changes in control
o ‘Full-function’ joint ventures
Process of merging => NOT anti-competitive.
Effect of merging on competitive dynamic of market => Subject to merger
control.
EU MERGER CONTROL (MERGER REGULATION1)
1) ‘Concentration’ (Art 3(1))
a) 2 or more previously independent undertakings => Merge
b) 1 or more undertakings => Acquire direct/indirect control of whole/part => 1
or more other undertakings (whether by purchase of securities/assets => by
contract/other means)
o ‘Control’ – ‘Possibility of exercising decisive influence on undertaking’ (Art
3(2)) > NOT just voting control
Examples
a) Acquisition of sole control (takeover)
b) Pure merger (2 undertakings combining)
c) Acquisition of joint control (JV)
1) Joint control required => Business plan, major investments, appointment
of senior management;
2) JV => Must be ‘full function’ entity (sufficient financial, human, other
resources > carry on independently from parent cos > lasting basis)
o (Non-full functional JVs => May fall under Art 101 rather than Merger
Reg)
1
Council Regulation 139/2004/EC ([2004] OJ L24/1)
MERGER & COMPETITION LAW
‘Merger’
o Transaction > 2 or more previously independent entities => Come under
common control
o Certain changes in control
o ‘Full-function’ joint ventures
Process of merging => NOT anti-competitive.
Effect of merging on competitive dynamic of market => Subject to merger
control.
EU MERGER CONTROL (MERGER REGULATION1)
1) ‘Concentration’ (Art 3(1))
a) 2 or more previously independent undertakings => Merge
b) 1 or more undertakings => Acquire direct/indirect control of whole/part => 1
or more other undertakings (whether by purchase of securities/assets => by
contract/other means)
o ‘Control’ – ‘Possibility of exercising decisive influence on undertaking’ (Art
3(2)) > NOT just voting control
Examples
a) Acquisition of sole control (takeover)
b) Pure merger (2 undertakings combining)
c) Acquisition of joint control (JV)
1) Joint control required => Business plan, major investments, appointment
of senior management;
2) JV => Must be ‘full function’ entity (sufficient financial, human, other
resources > carry on independently from parent cos > lasting basis)
o (Non-full functional JVs => May fall under Art 101 rather than Merger
Reg)
1
Council Regulation 139/2004/EC ([2004] OJ L24/1)
