Case C- 248/16 Austria Asphalt (control of non-full-function joint venture under EU Merger Regulation) [Archived]

The following Competition practice note provides comprehensive and up to date legal information covering:

  • Case C- 248/16 Austria Asphalt (control of non-full-function joint venture under EU Merger Regulation) [Archived]
  • Case facts
  • Timeline
  • Commentary

Case C- 248/16 Austria Asphalt (control of non-full-function joint venture under EU Merger Regulation) [Archived]

CASE HUB

ARCHIVED–this archived case hub reflects the position at the date of the decision of 7 September 2017; it is no longer maintained.

See further, timeline and commentary.

Case facts

OutlineNational reference from the Austrian Oberster Gerichtshof (Austrian Supreme Court) to the Court of Justice requesting a preliminary ruling under Article 267 TFEU seeking to clarify whether the transformation of a solely controlled undertaking into a jointly controlled joint venture can amount to a 'concentration' within the meaning of the EU Merger Regulation where the resulting joint venture is not 'full-function' in character (ie lacks the requisite independence from its parents). Central to this question (and its implications in terms of when transactions need to notification to the European Commission) is interpreting and understanding the interaction between Articles 3(1)(b) and 3(4) of the EU Merger Regulation.

Latest developmentOn 7 September 2017, the Court of Justice issued its judgment in which it ruled that the change of control over a joint venture only falls within the scope of the EU Merger Regulation if the joint venture is performs on a lasting basis the functions of an autonomous economic entity. The Court of Justice agreed with the earlier opinion of Advocate General Kokott.

Parties• Austria Asphalt GmbH & Co

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