Common shareholdings : What are the antitrust issues ?

Séminaire "Économie et droit de la concurrence" avec James Mancini (OECD) organisé par la Revue Concurrences, en partenariat avec McDermott Will & Emery et Analysis Group.

Jacques Buhart

Common ownership has recently become a popular topic in Europe, particularly since the European Commission mentioned it in its Dow/Dupont merger decision. The concept of common ownership does not appear in the Merger Regulation, but the Horizontal Guidelines hint towards the competition issues it can raise. Common ownership is closely linked to the concept of ‘control’ in merger review.

James Mancini

The OECD hosted a roundtable on the topic of common ownership in 2017. It is still a developing topic and most competition authorities have not yet examined it in detail. Common ownership can be defined as a minority shareholding (often by institutional investors) of multiple competing firms in a concentrated industry. There may be a concern that merger control does not capture these transactions, which are in a grey zone between no influence at all and complete control (generally under 10% of shares). Concentrated industries, in which theorized competitive restraints are most likely to occur, make it easier to exert this potential influence. Provocative studies on common ownership in the airline and retail banking sectors in the U.S. have sparked a lively debate. This debate occurs in the context of structural changes can be observed in markets, namely toward diversification through investment funds and the rise of passive investment strategies. The degree of common ownership has increased in at least some sectors and countries. The current debate on common ownership focuses on publicly listed companies only, since there is a lack of data on ownership of private firms.

Photos © Emilie Gomez

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  • OECD - Competition Division (Paris)
  • McDermott Will & Emery (Paris)
  • McDermott Will & Emery (Brussels)
  • Analysis Group (Brussels)