EU merger control

1. Have there been any recent developments regarding EU merger control and are any updates/developments expected in the coming year? Are there any other ‘hot’ EU merger control issues?

The European Commission announced in December 2019 that it will review its Notice on Market Definition adopted in 1997. For instance, the Commission will look at how digitisation, with the proliferation of free services and multi-product ecosystems, would impact on long-standing market definition concepts, including the ‘SSNIP test’ and product substitution. Moreover, as regards geographic market definition, the review is expected to take into account the effect of globalisation, considering competition from outside the EEA in assessing competitive constraints.

Depending on its outcome, this review could have a material impact on the Commission’s merger control assessment of certain cases. For instance, if the Commission starts taking more account of competition from outside the EEA in defining geographic markets, this could affect the assessment of transactions that create so-called ‘European champions’–strong players in Europe, that face competition at a global level from major rivals based in, for example, China.

The Commission’s Siemens/Alstom (M.8677) decision of February 2019 generated significant debate about whether the Commission’s merger control system is too strict on such transactions that create European champions. In that decision, the Commission prohibited the merger between European rail giants Siemens and Alstom, rejecting the parties’ arguments that the creation of a European rail champion was necessary to be able compete in particular with the growing threat from Chinese rival CRRC. This decision polarized the debate on Europe champions: one camp (most notably supported by the French and German governments) criticised the Commission for being overly rigid in its antitrust assessment and failing to take account of industrial policy considerations, while the other camp lauded the Commission for focusing its assessment solely on substantive competition issues.

While the French and German governments have proposed procedural changes to the EU merger control system in order to address their concerns, these changes are unlikely to be implemented anytime soon. However, this debate is far from over and nuanced changes to Commission policy–such as the review of its Notice on Market Definition–could have an impact on how the Commission considers such European champions cases going forward.

2. Please explain the EU 'control test', including providing comments on the position regarding 'minority (non-controlling) shareholdings'.

EU merger control only catches so-called 'concentrations'. In essence, these are certain transactions—mergers, acquisitions and full-function joint ventures (see question 3 for more on 'full-function' joint ventures)—that bring about a lasting change in 'control' of the companies concerned. 'Control' is defined as the ability to exercise decisive influence on a company. There is no specific shareholding or other threshold for control to be established, and each case is decided on the facts.

While a transaction is only notifiable if it gives rise to a change in control, this change in control can take various forms. EU merger control covers not only acquisitions of sole control but also acquisitions of joint control, as well as changes in the quality of control (where a company goes from having sole control to having joint control or vice versa, or where there is an increase in the number or change in the identity of jointly controlling companies).

Sole control is most commonly acquired through a purchase by one company of a majority of the voting shares of another company, insofar as this gives the acquirer the power to exercise decisive influence on the target by determining its strategic commercial behaviour. In exceptional cases, a minority shareholding may also be sufficient to establish sole control if, for example, the acquirer is vested with other rights allowing it to determine the strategic commercial behaviour of the target company. Joint control exists where two or more companies have the possibility of exercising decisive influence on another company. Decisive influence in this sense normally means the power of two or more shareholders to block actions which determine the strategic commercial behaviour of the target (in particular as concerns its business plan, operating budget and/or the appointment of senior management). The standard example of joint control is where each parent company has equal voting rights and representation on the joint venture’s management board and other decision-making bodies, where decisions are taken by a simple majority, thus giving each the power to deadlock decisions on the strategic commercial behaviour of the company. In contrast, veto rights normally accorded to minority shareholders to protect their financial interests (eg concerning changes in the statutes, an increase or decrease in capital, or liquidation) but which do not concern the strategic commercial behaviour of the target company are usually not sufficient to confer joint control.

See further, A 'concentration' with an EU dimension and EU merger rules—minority shareholdings.

3. Are joint ventures caught by the EU merger control provisions (including non-structural, cooperative joint ventures)?

EU merger control catches the creation of so-called ‘full function’ joint ventures.

The 'full-function' criterion means that the joint venture must perform on a lasting basis all the functions of an autonomous economic entity. Essentially, the joint venture should have sufficient resources to carry out on a lasting basis and by itself the same functions as other companies operating in the same market. This generally requires that the joint venture has its own management, as well as access to staff, assets and sufficient capital to allow for its long-term sustainability. In addition, the joint venture’s operations should generally not be limited to carrying out a particular aspect of its parents’ businesses (eg not just production, sales or research & development), the joint venture should not in the long term be overly reliant on its parents as either supplier or customer, and the joint venture should be intended to operate on a lasting basis.

This means that purely cooperative joint ventures limited to a particular function, such as joint R&D or joint marketing, will not qualify as full-function joint ventures and will, thus, fall outside the scope of EU merger control. While such joint ventures will not have to be notified to the Commission, they may still be reviewed by the Commission under the EU rules on restrictive agreements (Article 101 TFEU). In addition, these kinds of joint ventures may also be subject to the merger control rules of certain EU Member States, such as Germany, that do not require joint ventures to be full-function in order to be notifiable.

See further, EU merger rules—joint ventures.

4. What are the merger control thresholds and would a purely foreign-to-foreign transaction be caught (commenting on any ‘effects’ doctrine/policy if relevant and the position in relation to joint ventures implemented fully outside the EEA)?

Concentrations have to be notified to, and approved by, the Commission if they meet either of the following two alternative jurisdictional thresholds (see question 5 for more on the 'undertakings concerned' referred to in the thresholds):

1. •

   Threshold 1:

   1. ◦

      the combined aggregate worldwide turnover of all the undertakings concerned is more than €5,000m

   2. ◦

      the aggregate EU-wide turnover of each of at least two of the undertakings concerned is more than €250m

   3. ◦

      unless, each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within one and the same Member State

2. •

   Threshold 2:

   1. ◦

      the combined aggregate worldwide turnover of all the undertakings concerned is more than €2,500m

   2. ◦

      in each of at least three Member States, the combined aggregate turnover of all the undertakings concerned is more than €100m

   3. ◦

      in each of at least the same three Member States included for the purpose of the above criterion, the aggregate turnover of each of at least two of the undertakings concerned is more than €25m, and

   4. ◦

      the aggregate EU-wide turnover of at least two of the undertakings concerned is more than €100m

   5. ◦

      unless, each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within one and the same Member State.

Both thresholds are based exclusively on turnover criteria. Where the parties are headquartered, whether or not they have subsidiaries or assets within the EU, the law governing the transaction agreements, whether or not the transaction gives rise to competition concerns or in fact has any effects on competition in the EEA, are all irrelevant to the question of jurisdiction.

This means that concentrations (including purely foreign-to-foreign transactions) that meet either of these thresholds cannot escape EU merger control on the basis that the deal would not have any effects in Europe. In fact, the European courts have held that a concentration that meets the EU thresholds is presumed to have a sufficient effect on the EU for the Commission to have jurisdiction.

For instance, joint ventures that are implemented entirely outside of the EEA but where the parent companies meet either of the above mentioned thresholds (even if only because of EU turnover generated by the parent companies in an industry that is entirely unrelated to the joint venture) will have to be notified to the Commission and cannot escape EU merger control based on a lack of effects argument.

See further, A 'concentration' with an EU dimension — Notification thresholds.

Note–although the UK is leaving the EU on 31/01/2020, UK turnover will still apply for the purposes of applying the EU notification thresholds until at least 31/12/2020.

5. In order to determine whether the turnover thresholds mentioned in question 4 are met, the parties should take into account the group turnover in the most recent complete financial year of the so-called 'undertakings concerned' derived from the sale of products and services falling within the undertakings’ ordinary activities, after deduction of sales rebates, VAT and other taxes directly related to turnover.

As a starting point for determining the relevant turnover, the 'undertakings concerned' should be identified. As a general rule of thumb, the 'undertakings concerned' are:

1. •

   in the case of a merger: all merging parties

2. •

   in the case of an acquisition of sole control: the acquiring company and the target company; the seller is not an undertaking concerned. Where only parts of a company are acquired, only the turnover of those parts is taken into account for the target company

3. •

   in the case of an acquisition of joint control of a newly established company: each of the companies acquiring control. The joint venture does not as yet have any turnover of its own and thus is not considered as an undertaking concerned

4. •

   in the case of an acquisition of joint control of a pre-existing company: each of the companies acquiring control, as well as the existing company being acquired.

For each undertaking concerned, the turnover should include the entire group-wide turnover in the most recent complete financial year prior to the date of the transaction for which audited accounts are available. As a basic rule, this group-wide turnover includes turnover of all companies that have direct or indirect control-based links with the undertaking concerned (such as its parent companies and their parent companies, its subsidiaries and their subsidiaries, its sister companies, and companies jointly controlled by two or more companies of the group). As an exception to this basic rule, in the case of a sale of part of a company, only the turnover related to that part (and not the entire seller group) shall be taken into account for the purposes of the jurisdictional thresholds. The group turnover should also not include any intra-group sales (sales by one company in the group to another).

In terms of how to allocate turnover to different countries (which is relevant as the jurisdictional thresholds refer to turnover in the EU and individual Member States), the general rule is that turnover should be allocated to the country where the customer is located, as this is likely to be where competition for the customer’s business took place.

6. Where the jurisdictional thresholds are met:

1. Have there been any recent developments regarding EU merger control and are any updates/developments expected in the coming year? Are there any other ‘hot’ EU merger control issues?

The European Commission announced in December 2019 that it will review its Notice on Market Definition adopted in 1997. For instance, the Commission will look at how digitisation, with the proliferation of free services and multi-product ecosystems, would impact on long-standing market definition concepts, including the ‘SSNIP test’ and product substitution. Moreover, as regards geographic market definition, the review is expected to take into account the effect of globalisation, considering competition from outside the EEA in assessing competitive constraints.

Depending on its outcome, this review could have a material impact on the Commission’s merger control assessment of certain cases. For instance, if the Commission starts taking more account of competition from outside the EEA in defining geographic markets, this could affect the assessment of transactions that create so-called ‘European champions’–strong players in Europe, that face competition at a global level from major rivals based in, for example, China.

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1. Have there been any recent developments regarding EU merger control and are any updates/developments expected in the coming year? Are there any other ‘hot’ EU merger control issues?

The European Commission announced in December 2019 that it will review its Notice on Market Definition adopted in 1997. For instance, the Commission will look at how digitisation, with the proliferation of free services and multi-product ecosystems, would impact on long-standing market definition concepts, including the ‘SSNIP test’ and product substitution. Moreover, as regards geographic market definition, the review is expected to take into account the effect of globalisation, considering competition from outside the EEA in assessing competitive constraints.

Depending on its outcome, this review could have a material impact on the Commission’s merger control assessment of certain cases. For instance, if the Commission starts taking more account of competition from outside the EEA in defining geographic markets, this could affect the assessment of transactions that create so-called ‘European champions’–strong players in Europe, that face competition at a global level from major rivals based in, for example, China.

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