Minority Shareholdings

Dominance

The German Competition Authority ceases the investigation concerning an alleged abuse of dominance in the market for alternative postal services (Compador Technologies / DPAG)
German Competition Authority (Bonn)
Bundeskartellamt abandons abuse of dominance proceedings against Compador Technologies GmbH* Bonn, 23 October 2013: The Bundeskartellamt has abandoned its abuse of dominance proceedings against Compador Technologies GmbH, an affiliated company of Deutsche Post AG (DPAG). The proceedings were (...)

Mergers

The EU Commission issues merger reform White Paper regarding minority shareholdings and member State referrals
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
On July 9, 2014, the European Commission published its proposal (White Paper) outlining the approach it intends to adopt with respect to the application of the EU Merger Regulation (EUMR) to the acquisition of minority shareholdings. The White Paper also sets out proposals to streamline the (...)

The German Competition Authority clears the acquisition by paid TV service supplier of a minority share in TV-sports channel (Sky / Sport1 and Con­stan­tin Sport Mar­ke­ting)
German Competition Authority (Bonn)
Merger cleared - Sky may acquire a participation in Sport1* Today the Bundeskartellamt cleared the acquisition of a minority share in the sports channel Sport1 by Sky Deutschland. The transaction also involves the acquisition of a minority share in Constantin Sport Marketing GmbH (CSM) and the (...)

The UK Competition Commission requires airline to sell most of its minority shareholding in rival (Ryanair/Aer Lingus)
Jones Day (London)
Last week the UK Competition Commission (CC) required airline Ryanair to reduce its 29.8% shareholding in rival Aer Lingus to 5 per cent. The CC ruled that Ryanair’s gradual acquisition of its existing minority shareholding (i) created a relevant merger situation and (ii) had led or may be (...)

The UK Competition Commission requires airline to sell down its minority shareholding in its rival (Ryanair/Aer Lingus)
Dechert (Brussels)
,
Fangda Partners (Hong Kong)
1. Introduction This case note provides a summary of the UK competition authorities’ investigation into Ryanair’s 29.82% minority shareholding in its rival Aer Lingus. The long running battle between the two airlines has resulted in more than 20 competition authority and court decisions since (...)

The European Commission opens consultations seeking views on possible improvements of the EU Merger Regulation, in particular extending its scope to the acquisition of non-controlling minority shareholdings
Baker McKenzie (Brussels)
Minority Report? The EC’s public consultation on minority shareholdings* On 25 June 2013, the European Commission launched a public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposes to (i) expand its powers to review non-controlling minority (...)

The EU Commission proposes significant changes to the EU merger regulation
Skadden, Arps, Slate, Meagher & Flom (Brussels)
,
Skadden, Arps, Slate, Meagher & Flom (Brussels)
On June 20, 2013, the European Commission (Commission) launched a public consultation on a number of significant proposed changes to the EU Merger Regulation (EUMR). The proposed amendments relate to (i) the possible review of non-controlling minority shareholdings under the EUMR; (ii) the EU (...)

The Netherlands Authority for Consumers & Markets permits the establishment of a joint venture between undertakings in the healthcare sector, and clarifies when under the Dutch Competition Act a minority shareholder may exercise joint control over a concentration (Star MDC – Reinier de Graaf Groep)
Netherlands Ministry of Economic Affairs
Introduction On 30 May 2013 the Dutch Authority for Consumers & Markets (Autoriteit Consument & Markt, ACM) issued a decision clearing the establishment of a joint venture by two undertakings in the healthcare sector. The foundations Stichting Star-Medisch Diagnostisch Centrum (Star (...)

The Chinese MOFCOM clears merger in the mining industry (Glencore / Xstrata)
Mattel (Hong Kong)
,
White & Case (Hong Kong)
,
White & Case (London)
At long last, Glencore has overcome the final regulatory hurdle and secured the approval of China’s Ministry of Commerce (MOFCOM) to acquire the 66 percent of Xstrata that it does not already own. But not before agreeing to part with one of the prized assets in Xstrata’s portfolio, the Las Bambas (...)

The UK Competition Commission reopens investigation into Ryanair’s minority stake in Aer Lingus (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 28 February 2013 (one day after the European Commission blocked Ryanair’s third attempt to acquire Aer Lingus), the UK Competition Commission (“CC”) announced that it will reopen a long-running inquiry into Ryanair’s acquisition of a minority stake in Aer Lingus. This investigation has (...)

The Hungarian Competition Office rules on ancillary restraints and provides an overview of its related practice (Waberer/Szemerey)
lakatos, koves and partners
On 20 December 2012 the Hungarian Competition Office ("HCO") cleared a concentration between two Hungarian companies active in forwarding and logistics (Waberer’s Logisztika Kft. ("Waberer") as acquirer and Szemerey Transport Zrt. ("Szemerey") as target) and provided a useful summary of the (...)

The English Court of Appeal rejects low cost airline’s appeal of UK Competition Commission probe (Ryanair / Aer Lingus)
Van Bael & Bellis (Brussels)
On 13 December 2012, the English Court of Appeal (CA) rejected Ryanair’s appeal against a Competition Appeal Tribunal (CAT) judgment allowing the Competition Commission (CC) to review Ryanair’s acquisition of a minority stake in rival airline company Aer Lingus. In August 2012, the CAT (...)

The England and Wales High Court rules that there was no contingent infringement of article 21 of the ECMR when the UK Competition Commission investigates an acquisition of a minority stake prior to a merger subject to the exclusive control of the European Commission (Ryanair / CC)
Blackstone Chambers
Anyone for another round? The Court of Appeal’s nuanced approach to the duty of “sincere cooperation”.* The duty of “sincere cooperation” set out in Article 4(3) TEU requires Member States to take appropriate measures to “ensure fulfilment of the obligations arising out of the Treaties or resulting (...)

The EU General Court upholds fine imposed on energy corporation for failing to notify a transaction highlighting the importance of compliance with EU merger control filing requirements (Electrabel)
Herbert Smith Freehills (Brussels)
,
Herbert Smith Freehills (London)
1. Introduction On 12 December 2012 the EU General Court dismissed Electrabel’s appeal against the €20 million fine the European Commission had imposed on it for failing to notify a transaction - the acquisition of a minority shareholding - to the Commission under the EU Merger Regulation (...)

The UK CAT rules on Competition Commission’s decision to continue investigation on a merger in the aviation sector (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The Italian Competition Authority exerts its jurisdiction on a concentration between two firms owned by the State and conditionally clears it (CDP/Snam)
Desogus Law Office (Cagliari)
The Italian Competition Authority asserts its jurisdiction on a concentration between two firms owned by the State and conditionally clears it (CDP/Snam) By a decision made on 8 August 2008, the Italian Competition Authority has conditionally cleared the Cassa Depositi e Prestiti (CDP) (...)

The UK Competition Commission investigates the acquisition of Irish low cost airline’s minority stake in former Irish flag carrier (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
The acquisition of Ryanair’s minority stake in Aer Lingus is currently under investigation by the Competition Commission (CC) under the merger control regime of the Enterprise Act 2002, despite a series of jurisdictional challenges and a potentially conflicting transaction (a renewed bid by (...)

The Brazilian CADE enforces the new competition act: merger review developments
Magalhães Nery e Dias (Sao Paulo)
,
Magalhães Nery e Dias (Sao Paulo)
,
Magalhães Nery e Dias (Sao Paulo)
Introduction It has been almost one year since, in May 29, 2012, a new Competition Act (Law 12.529/11) came into force in Brazil, radically altering the country’s antitrust framework. The purpose of the long-awaited new law was to allow the competition regulator (the Administrative Council of (...)

The Brazilian Parliament adopts new merger law, with increase in filing thresholds and new merger regulations
Milbank, Tweed, Hadley & McCloy (New York)
,
Jones Day (Sao Paulo)
,
Jones Day (New York)
On May 29, 2012, Brazil’s New Merger Law entered into force and the Administrative Council for Economic Defense ("CADE") issued Merger Regulations that further define what transactions must be reported and what filing procedures followed in Brazil’s new pre-merger control regime. On May 31, (...)

The UK Court of Appeal addresses the issue of the duty of sincere cooperation between national competition authorities and the European institutions in the context of merger control (Ryanair/Aer Lingus)
UK Competition and Markets Authority (CMA) (London)
Summary In 2012 the low-cost company Ryanair flew twice to the Court of Appeal in the UK, in an attempt to further explore the duty of sincere cooperation between national competition authorities and the European institutions. Ryanair did not get good value for money: at both occasions it was (...)

The Spanish National Competition Commission fines companies for gun jumping based on an unprecedentedly broad concept of control (Gestamp/ Essa Bonmor)
Cuatrecasas, Goncalves Pereira (Madrid)
,
Cuatrecasas, Goncalves Pereira (Barcelone)
On January 30, 2012, the Spanish Competition Commission (Comisión Nacional de la Competencia, “CNC”) imposed fines of €124.400 on two groups in the automotive components sector, Gestamp and Estampaciones Sabadell, for allegedly executing a notifiable concentration without authorization. The CNC (...)

The UK Court of Appeal stays the OFT’s investigation of minority interest between two airlines companies, while the EU Commission reviews the economic importance of minority shareholdings (Ryanair/Aer Lingus)
As the European Commission reported its intention to review the economic importance of minority shareholdings in early November this year, the case of Ryanair and Aer Lingus continued its rollercoaster ride of competition authority and court decisions relating to Ryanair’s 29.8% minority (...)

The Chinese MOFCOM publishes a conditional approval of proposed transaction under Anti-Monopoly Law (Alpha V)
Jones Day (Beijing)
,
Gibson Dunn (Hong Kong)
,
Jones Day (Beijing)
The Chinese Ministry of Commerce ("MOFCOM") has published a conditional approval of proposed transaction under China’s Anti-Monopoly Law ("AML"). This decision reflects China’s view of the broad reach of the AML’s merger provisions and the lengthy procedure that merging parties can expect. Since (...)

The Chinese MOFCOM conditionally clears the acquisition in the electronic yarn clearers for automatic winders (Penelope / Savio)
King & Wood Mallesons (Beijing)
MOFCOM’s 8th Conditional Clearance - Alpha V/Savio Deal* On 31 October 2011, the Ministry of Commerce (MOFCOM) publicly announced the eighth conditional merger clearance since the enactment of the Anti-monopoly Law (AML) in 2008. According to its announcement , MOFCOM cleared the proposed (...)

The Turkish Competition Board authorizes a joint control acquisition in the sector of manufacture and sale of components and systems for automotive and motor vehicles (Mahle/Behr)
Erdem & Erdem (Istanbul)
The Competition Board (the “Board”) authorized, under Act No. 4054 on the Protection of Competition numbered 4054 (the “Competition Act”) and the Communiqué No: 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (the “Merger Communiqué”), the (...)

The UK Competition Appeal Tribunal confirms that the OFT is not time-barred from investigating the acquisition of a competitor’s minority shareholding implemented five years previously under UK merger control rules (Ryanair v. OFT supported by Aer Lingus)
University of Southampton
On 28 July 2011, the UK Competition Appeal Tribunal (CAT) found that the Office of Fair Trading (OFT) is not out of time to consider referring the acquisition of a minority shareholding by Ryanair Holdings plc (Ryanair) in its competitor, Aer Lingus Group plc (Aer Lingus), to the Competition (...)

The UK’s Competition Appeal Tribunal upholds the OFT’s jurisdiction to review the acquisition of a minority shareholding in a merger in the airline sector (Ryanair/Aer Lingus)
Vinge (Stockholm)
,
White & Case
I. Introduction On 28 July 2011 the Competition Appeal Tribunal (“CAT”) handed down a unanimous judgment, upholding the UK Office of Fair Trading’s (“OFT”) jurisdiction to review Ryanair‘s 29.8% minority shareholding in rival Irish airline Aer Lingus, which the former acquired almost five years ago. (...)

The UK Competition Appeal Tribunal upholds the OFT’s decision that it is "in time" to investigate the acquisition of a minority shareholding in a merger case concerning the air transport sector (Ryanair/Aer Lingus)
Herbert Smith Freehills (Brussels)
All views expressed are strictly personal views of the author. The present case note does not constitute legal advice and should not be relied on as such. The author would like to thank Natalia Sivakumaran, associate at Herbert Smith LLP in London, for her assistance with the preparation of (...)

The U.S. Antitrust Agencies announce final rules and revised Hart-Scott-Rodino premerger form
Jones Day (Washington)
,
,
Jones Day (Chicago)
In the first substantial change to the U.S. premerger filing requirements since 2005, the Federal Trade Commission and Department of Justice have issued a revised Premerger Notification and Report Form ("HSR Form") and final amendments to the rules governing the information reporting parties (...)

The US FTC issues revised Hart-Scott-Rodino premerger notification rules
Linklaters (New York)
,
Linklaters (Washington)
,
Linklaters (New York)
The U.S. Federal Trade Commission (the “FTC”) has issued final rules (the “Rules”) to amend the requirements of premerger notifications required under the Hart-Scott-Rodino (“HSR”) Act. The Rules, issued July 7, 2011, are described by the FTC as being intended to streamline the HSR filing process. In (...)

The Turkish Competition Board unconditionally authorizes the acquisition of Italian jeweler and luxury goods retailer by French luxury conglomerate (LVMH/Bulgari)
Erdem & Erdem (Istanbul)
The Competition Board (the “Board”) has unconditionally authorized the acquisition of control of Bulgari S.p.A. (“Bulgari”) by LVMH Moét Hennessy - Louis Vuitton (“LVMH”; “Bulgari” and “LVMH” hereinafter referred to as the “Parties”) since the transaction would not result in creating a dominant position or (...)

The European Commission examines whether acquisitions of minority shareholdings should be subject to EU merger control
Van Bael & Bellis (Brussels)
In a recent speech, Competition Commissioner Joaquin Almunia said that the European Commission is examining whether acquisitions of minority shareholdings, falling short of an acquisition of control, should be subject to EU merger control. Under the current Merger Regulation, acquisitions of a (...)

The UK Competition Appeal Tribunal receives a claim of jurisdiction from a leading low-cost airline (Ryanair)
Van Bael & Bellis (Brussels)
Irish air carrier Ryanair has recently launched an appeal before the UK Competition Appeal Tribunal (CAT) against a decision of the Office of Fair Trading (OFT) finding that the OFT has jurisdiction under UK merger control law to review Ryanair’s acquisition of a minority stake in competing (...)

The Brazilian CADE vetoes transaction in the industry of concrete services based on a conservative presumption of economic group by summing minority equity interest in companies with small cross-sharing (Tupi/Polimix)
Tauil & Chequer (in cooperation with Mayer Brown)
The author thanks Natali de Vicente Santos for researching and debating this case law with him, which contributed for this article. I. Summary of the case In this case, the discussion at CADE focused on the corporate relationship between rivals being able to raise anticompetitive effects even (...)

The Bulgarian Supreme Administrative Court approves of the NCA’s qualifying, with reference to Art. 3(5)(c) of Reg. 139/2004, a national-dimension acquisition of control as a concentration notifiable under the Competition Act but quashes the fine for non-notification (Allianz Leasing Bulgaria)
University Paris Dauphine
I. Introduction 1. An ex officio investigation of Allianz Bulgaria Holding’s non-notified acquisition of Allianz Leasing Bulgaria (formerly Balkan Star Services), a vehicle leasing company, gave both the Competition Protection Commission (hereinafter ‘CPC’) and the Supreme Administrative Court (...)

The European Court of First Instance upholds the European Commission’s decision to prohibit a merger between two airlines companies (Ryanair/Aer Lingus, merger prohibition)
European Commission - DG ENER
Yes, we can (prohibit) – The Ryanair/Aer Lingus merger before the Court* I. Introduction In two judgments handed down on 6 July 2010, the General Court upheld the Commission’s June 2007 decision to prohibit the planned merger between Ryanair and Aer Lingus (Case T-342/07) and dismissed Aer (...)

The EU General Court dismisses an airline’s appeal against the Commission’s decision not to divest a minority shareholding post-merger (Ryanair / Aer Lingus)
European Commission - DG ENER
Yes, we can (prohibit) – The Ryanair/Aer Lingus merger before the Court* I. Introduction In two judgments handed down on 6 July 2010, the General Court upheld the Commission’s June 2007 decision to prohibit the planned merger between Ryanair and Aer Lingus (Case T-342/07) and dismissed Aer (...)

The UK OFT considers that large shareholdings do not always mean ability materially to influence policy (RREEF/Kelda)
Herbert Smith Freehills (London)
Summary In taking this first stage decision the Office of Fair Trading (OFT) had to decide whether the acquisition of a minority stake in the parent of a water and sewerage company would engage compulsory merger reference requirements, because the parent company of the manager of the acquiring (...)

The UK OFT decides on material influence through meeting attendance and board membership (RREEF Pan-European Infrastructure Fund/Kelda Holdings)
Dechert (Brussels)
The Office of Fair Trading (OFT) decision in RREEF Pan-European Infrastructure Fund LP / Kelda Holdings Limited confirms that the OFT’s material influence assessment relies “on the facts not the legal form”. Infrastructure Saxon sarl (Saxon) increased its stake in Kelda Holdings (Kelda) to (...)

The German Federal Court of Justice decides on the compatibility of non-competition clauses to the detriment of minority shareholders with Art. 101 Para. 1 TFEU and Sec. 1 ARC (Gratiszeitung Hallo)
Gleiss Lutz (Munich)
,
Milbank, Tweed, Hadley & McCloy (Munich)
On 23 June 2009, the German Federal Court of Justice overruled three judgments of the Higher Regional Court of Düsseldorf and remitted the cases back for further proceedings. In the joint proceedings before the Federal Court of Justice, the court had to decide whether a non-competition clause to (...)

The French National Competition Authority conditionally clears in Phase I a merger in the banking sector (Groupe Banque Populaire / Groupe Caisse d’Epargne)
University Paris I Panthéon-Sorbonne
Facing its first newsworthy merger since the Law of Modernization of the Economy came into force, the French National Competition Authority (NCA) cleared in Phase I a merger in the banking sector between Groupe Banque Populaire and Groupe Caisse d’Epargne after having (i) laid down stringent (...)

The French competition authority specifies under which conditions a merger is likely to affect competition in local markets and validates behavioural remedies due to the economic crisis (Caisse d’Epargne and Banque Populaire)
Freshfields Bruckhaus Deringer (Paris)
,
Freshfields Bruckhaus Deringer (Paris)
Since it was granted jurisdiction over mergers, the Competition Authority (hereafter “the Authority”) gave its first decision of approval with commitments on June 22, 2009. Even though it was a Phase I decision, the Authority performed a very thorough analysis of the operation’s impact, especially (...)

The German FCO finding “competitively significant influence” arising from acquisition of less than 14% shareholding in copper company prohibits transaction (A-TEC Industries, Norddeutsche Affinerie)
Van Bael & Bellis (Brussels)
According to a press release of 10 April 2008, the German Federal Cartel Office (FCO) prohibited A-TEC Industries’ acquisition of a 13.75% shareholding in Norddeutsche Affinerie, holding that the transaction created a dominant position on a market for a particular kind of oxygen-free copper (...)

The German Federal Cartel Office prohibits the acquisition of a minority shareholding of 13.75% and orders the divestiture after merger completion (A-TEC Industries - Norddeutsche Affinerie)
Freshfields Bruckhaus Deringer (Berlin)
,
Freshfields Bruckhaus Deringer
On 27 February 2008 the German Federal Cartel Office (FCO) prohibited the acquisition by A-TEC Industries AG (A-TEC), a Vienna-based international industrial group, of 13.75 % of the shares in Norddeutsche Affinerie AG (NA), a publicly listed German manufacturer and recycler of copper. Since (...)

A German Court of appeals reinforces the application of the de minimis exemption for merger control by constraining the application of the “bundle theory" (Asphaltmischwerke Langenthal)
Fried Frank Harris Shriver & Jacobson (London)
1. Introduction German merger control notification thresholds are extremely low and a large number of transactions are notified to the German Federal Cartel Office (Bundeskartellamt"FCO") every year. For example, 2231 notifications were submitted to the FCO in 2007 . However, a notification is (...)

The French Minister of Economy imposes a moderate fine for failure to notify a merger (SNCF Participations)
Freshfields Bruckhaus Deringer (Paris)
,
Freshfields Bruckhaus Deringer (Paris)
On 28 January 2008 the Minister of Economy (the Minister) imposed a fine of 250,000 euros on SNCF Participations (SNCF P), a subsidiary of the SNCF group, in relation to the failure to notify the acquisition of sole control of Novatrans, a company operating in the market relating to the (...)

The UK Competition Commission requires broadcasting group to sell down its minority stake in rival (BSkyB/ITV)
Fangda Partners (Hong Kong)
,
McCann FitzGerald (Dublin)
Background In November 2006 BSkyB (“Sky”), the leading pay TV-provider in the UK, purchased a 17.9% stake in ITV, one of the leading commercial free to-air broadcasters in the UK. The timing of the purchase was widely commented on given that it came within days of NTL announcing a possible (...)

The Italian Competition Authority gives conditional clearance to a merger giving rise to one of the largest European banking group (Unicredit/Capitalia)
Freshfields Bruckhaus Deringer (Rome)
,
DiaSorin
On 18 September 2007 the Italian Antitrust Authority (IAA) decided to authorize the merger between Unicredito Italiano S.p.A (also Unicredit) and Capitalia S.p.A. (Capitalia) (collectively as the Parties), subject to a number of structural and behavioural remedies. The transaction, through (...)

The Bulgarian Commission for Protection of Competition finds that a call option and certain minority shareholder protection rights do not confer control (Novator – Bulgarian Telecommunication Company)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the “CPC”) held that a call option for purchase of a majority stake in a target company, as well as certain minority shareholder protection rights, conferred no control in the competition law meaning of the notion and, thus, did not lead to (...)

The Bulgarian Commission for Protection of Competition dismisses minority shareholder protection rights as a form of acquisition of control (Beer Production)
Kinstellar (Sofia)
The Bulgarian Commission for Protection of Competition (the «CPC«) found that minority shareholder protection rights conferred no control in the competition law meaning of the notion because they did not relate to the exercise of decisive influence but merely to preservation of the shareholder’s (...)

The Netherlands Competition Authority clears a temporary minority shareholding in a competing undertaking, acquired by a publisher for the purpose of financing the sale of its subsidiary (Sdu/Ten Hagen & Stam)
Netherlands Ministry of Economic Affairs
In Sdu - Ten Hagen & Stam, publishing house Wolters Kluwer Nederland B.V. (WK) acquired a minority shareholding of less than 25% in its competitor Sdu Uitgevers B.V. (SDuU), to provide financing for the sale of its subsidiary Ten Hagen & Stam to SduU’s parent company Sdu N.V (SDu). In (...)

The Netherlands Competition Authority issues an administrative appeal decision, stating that an exemption for a restructured joint venture – which has been converted into a subsidiary in which competing construction companies hold minority stakes – is not required (Asfaltcentrale Stedendriehoek)
Netherlands Ministry of Economic Affairs
Asfaltcentrale Stedendriehoek (ACS) was an administrative appeal decision by the Nederlandse Mededingings autoriteit (NMa), the former national competition authority of the Netherlands, concerning an agreement on the restructuring of an asphalt production joint venture established by four (...)

Procedures

The President of European Court of First Instance dismisses request for interim measures by a low-cost airline (Aer Lingus)
Van Bael & Bellis (Brussels)
In an order of 18 March 2008, the President of the European Court of First Instance (CFI) dismissed a request for interim measures brought by Aer Lingus in its appeal against a European Commission decision finding that it had no power to require Ryanair to divest its minority stake in Aer (...)

All issues

  • Latest News issue 
  • All News issues
  • Latest Special issue 
  • All Special issues