scholarly journals Into the Grey Zone. What Do We (Don’t) Know About Types of Concentrations Between Undertakings Under EU law After Austria Asphalt?

2020 ◽  
Vol 12 (21) ◽  
pp. 219-236
Author(s):  
Adrian Bielecki ◽  
Keyword(s):  
Joint Venture ◽  
Merger Control ◽  
Grey Zone ◽  
Preliminary Ruling ◽  
Economic Entity ◽  
Eu Merger Control ◽  
Court Of Justice ◽  
Economic Foundations ◽  
Control Regime ◽  
The Eu

In Austria Asphalt, the Court of Justice issued the first preliminary ruling related to the EU merger control regime. In Advocate General Kokott’s words, the Austrian Supreme Court asked the Court of Justice to answer the fundamental question of what constitutes a concentration between undertakings within Article 3 of the EUMR. The Court of Justice held that Article 3 of the EUMR must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity. Although the ruling was rendered in the context of a specific transaction scenario, the underlying reasoning could shed new light on how to assess transactions that fall between acquisition of control and creation of a joint venture. However, this reasoning is incompliant with the purposes and economic foundations of the EU merger control regime. This can be proven both in relation to the transaction scenario directly covered by the question for a preliminary ruling and, if extrapolated, in relation to other transaction scenarios.

Die materielle Fusionskontrolle in der VR China und in der Europäischen Union

2019 ◽  
Author(s):  
Anna Ma
Keyword(s):  
Market Economy ◽  
Socialist Country ◽  
Policy Instrument ◽  
International Standards ◽  
Merger Control ◽  
Eu Merger Control ◽  
National Economic ◽  
Vr China ◽  
Control Regime ◽  
The Eu

This paper examines the similarities and differences between the European and Chinese merger control systems, thereby considering the decision-making practice of the responsible competition authorities in China and the EU. Merger control is an important economic policy instrument both in China and in the EU. Traditionally, merger control essentially serves the purpose of preventing unwanted monopolies and other structural impairments of competition. In the EU, merger control is an important instrument of strengthening competition and the market economy in the inner-European market. Given that China considers itself to be a socialist country, the fact that China also has introduced a merger control system that largely meets international standards is remarkable. In a socialist country, the economic system is usually a planned economy instead of a market economy. Competition does not play a comparable role. Nevertheless, China created a merger control regime which was strongly influenced by European merger control in 2008. In many instances, even the same terminology was incorporated into the provisions. European merger control thus served as a model for the creation of Chinese merger control. Despite these similarities, there are also significant differences between European and Chinese merger control. These special features lie, in particular, in the consideration and weighting of non-competitive factors, such as public interest or national economic development. The deviations are due to the functions and objectives of the Chinese merger control regime.

9 Merger Control

2012 ◽  
Author(s):  
Geradin Damien ◽  
Layne-Farrar Anne ◽  
Petit Nicolas
Keyword(s):  
Merger Control ◽  
Eu Merger Control ◽  
Merger Regulation ◽  
Control Regulation ◽  
Legal Nature ◽  
Ex Ante ◽  
National Competition ◽  
Control Regime ◽  
The Eu

This concluding chapter discusses the EU merger control regime. Merger-specific law is relatively new to the EU body of law. It was not until 1974 that specific merger regulation was even proposed, and not until over a decade after that that any merger regulation was actually adopted. Regulation 4064/89 (the ‘European Merger Control Regulation’ or ‘EMCR’) sets out an ex ante notification procedure for concentration with an EU dimension. Two reasons seem to have driven the adoption of a merger control regime by the EU. The first is economic. The second reason is of a legal nature. Between 1989 and 2010, more than 4,500 operations were notified to the Commission. This number does not comprise the very many mergers notified to the national competition authorities (NCAs).

scholarly journals “After Thunder Comes Rain”: The ECJ Finally Rules on the Boundaries of the EUMR Standstill Obligation

2019 ◽  
Vol 3 (1) ◽  
pp. 187-208
Author(s):  
Luca Villani
Keyword(s):  
Control System ◽  
European Court Of Justice ◽  
Preliminary Ruling ◽  
Eu Merger Control ◽  
Court Of Justice ◽  
First Case ◽  
European Court ◽  
Council Regulation ◽  
The Eu ◽  
Broad Overview

In its judgment of 31 May 2018, case C-633/16, the European Court of Justice ruled on the preliminary questions referred by the Danish Maritime and Commercial Court in the context of a merger notified to the Danish Competition and Consumer Authority by KPMG DK and EY DK. The referring court asked the ECJ to clarify on the scope of the so-called standstill obligation imposed on the parties of a notifiable transaction by article 7 of the Council Regulation (EC) No. 139/2004 (EUMR). The decision was long awaited, since after having imposed several fines for gun jumping practices in recent times, it is the first case ever in which the Court has been asked to take position on the matter through a preliminary ruling. As for substance, the European Court of Justice stated that article 7, paragraph 1 of the EUMR must be interpreted as meaning that a concentration is implemented only by a transaction which contributes to the change in control of the target undertaking. In doing so, the Court gives a broad overview of the EU merger control system, recalling the fundamental concepts of concentration, control and standstill in order to give a systematic interpretation of the provisions at stake.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

EU merger review of the acquisition of non-controlling minority shareholdings: where to now?

2015 ◽  
Vol 13 (2) ◽  
pp. 69-92
Author(s):  
Frank Montag ◽  
Mary Wilks
Keyword(s):  
White Paper ◽  
Merger Control ◽  
Eu Merger Control ◽  
Potential Benefits ◽  
One Year ◽  
Minority Shareholdings ◽  
Minority Interests ◽  
Policy Proposals ◽  
Benefits And Costs ◽  
The Eu

AbstractOn 9 July 2014, the European Commission (the Commission) published its White Paper “Towards more effective EU merger control”, which reviewed the operation of the EU Merger Regulation (EUMR) ten years after the introduction of the substantive test of “significant impediment to substantial competition” (SIEC) and proposed certain specific improvements, including the review of non-controlling minority interests under the EUMR. The 2014 White Paper followed approximately one year of consultation with Member States and interested parties, and was accompanied by a Staff Working Document, which analyses in more detail the considerations underlying the policy proposals in the 2014 White Paper, and an Impact Assessment, which analyses the potential benefits and costs of the various policy options considered.Less than six months after the consultation on the 2014 White Paper closed, Competition Commissioner Margrethe Vestager indicated that the Commission is reconsidering its proposals to allow it to review the acquisition of non-controlling minority shareholdings under the EUMR. This decision has been welcomed by many in the business and legal community as the “targeted transparency system” proposed by the Commission had raised a number of concerns regarding proportionality, legal certainty, cost and administrative burden.Whilst we await the Commission’s next move, this article considers whether non-controlling minority shareholdings should be subject to EU merger control and the extent to which the Commission’s originally envisaged system adequately dealt with the issues it sought to address. This article also proposes a number of principles that the authors suggest should be taken into account when designing a balanced system of merger review for acquisitions of non-controlling minority shareholdings in which the burden of the additional review is proportionate to the goals pursued.

scholarly journals Support Schemes in Renewable Energy: Commentary to Judgment of the Court (Fifth Chamber) of 13 September 2017, ENEA S.A. v. Prezes Urzędu Regulacji Energetyki

2018 ◽  
Vol 2 (1) ◽  
pp. 171-183
Author(s):  
Nevin Alija
Keyword(s):  
European Union ◽  
Renewable Energy ◽  
European Commission ◽  
Environmentally Friendly ◽  
Preliminary Ruling ◽  
The European Union ◽  
Court Of Justice ◽  
The Supreme Court ◽  
Financial Penalty ◽  
The Eu

In its September 13th 2017 decision,1 the Court of Justice of the European Union (CJEU) decided on a request for a preliminary ruling by the Supreme Court of Poland (Sąd Najwyższy) in proceedings between ENEA S.A. (ENEA) and the president of the Urzędu Regulacji Energetyki (Office for the regulation of energy, URE) on the imposition by the latter of a financial penalty on ENEA for breach of its obligation to supply electricity produced by cogeneration. The judgment of the Court of Justice follows many decisions of the European Commission and judgments of the EU courts assessing the involvement of State resources in support schemes in energy, particularly with the aim of switching towards more environmentally friendly sources. This case reaffirms that support schemes may, in certain circumstances, fall outside the scope of the EU State aid rules.

Case Report on Kadzoev, 30 November 2009

2010 ◽  
Vol 12 (3) ◽  
pp. 361-371 ◽  
Author(s):  
Elitsa Mincheva
Keyword(s):  
Case Report ◽  
Fundamental Rights ◽  
Preliminary Ruling ◽  
Irregular Migrants ◽  
National Courts ◽  
Court Of Justice ◽  
Broad Interpretation ◽  
The Eu

AbstractThe detention periods authorized by Directive 2008/115 sparked significant criticism both within and without the EU. In its preliminary ruling of 30 November 2009, the Court of Justice countered concerns that a further erosion of the fundamental rights of irregular migrants might occur due to a broad interpretation of the directive by national courts.

Sign in / Sign up

Export Citation Format

Share Document