The following Competition practice note provides comprehensive and up to date legal information covering:
A ‘merger’ may fall within the EU merger rules and require notification to the European Commission if at least two parties to the transaction generate fairly substantial world and EU-wide revenues (combined and individual). In particular (and subject to certain narrowly construed exceptions), a transaction will need to be notified to and cleared by the Commission if:
it is a ‘concentration’ within the meaning of the EU Merger Regulation
the merger is permanent, and
it meets the financial thresholds set out.
Where these conditions are met then, subject to certain narrowly construed exceptions, EU merger control rules will apply to the exclusion of the national merger rules of any European Economic Area ('EEA') Member State.
The EU Merger Regulation defines a ‘concentration’ as follows:
where two independent undertakings merge—this includes arrangements where previously 'independent' undertakings set up a common management team, or a dual listing on a Stock Exchange
the acquisition of control by one (or more) undertaking over another (see below)
where there is a change of control in the acquired undertaking, or
where a joint venture is formed (see below).
If a merger falls within the definition of a 'concentration', it does not matter that this was not the intention of the parties—eg outsourcing agreements may be 'concentrations' if key assets, such as equipment, staff and or land, are transferred to the provider of
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