Control (change)

Institution Definition

"Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by: (a) ownership or the right to use all or part of the assets of an undertaking; (b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking. Control is acquired by persons or undertakings which: (a) are holders of the rights or entitled to rights under the contracts concerned; or (b) while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving therefrom." © Article 3 of the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

See also Joint control and Joint venture

Case Comments

Tilman Kuhn, Michael Engel, Jia Liu The EU Court of Justice confirms the possibility of two separate fines for gun-jumping and non-notification, and holds that transferring the possibility of exercising decisive influence over the target may amount to an implementation of a concentration (Altice)

On 9 November 2023, the European Court of Justice ("ECJ") confirmed that the European Commission ("EC") was right to impose two separate fines on Altice for breaching standstill rules and failing to notify its acquisition of PT Portugal, but lowered the fine for failure to notify by €3.1 (...)

Hellenic Competition Authority The Hellenic Competition Authority approves the acquisition of control over a company active in infrastructure, construction, aggregates production by a firm active in IT, construction, waste management, real estate development, and renewable energy sectors after examining horizontal, vertical, and conglomerate effects of the merger (Aktor / Intrakat)

Clearance of the notified concentration which concerns the acquisition of sole control over AKTOR SA by INTRAKAT SA* By its Decision no 830/2023, adopted on the 7th of November 2023, the Hellenic Competition Commission (HCC), in Planary, unanimously approved, pursuant to Article 8 (6) of (...)

Orion Berg, Jonathan Olier, Nicole Mao, Fiona Ng The Singaporean Ministry of Trade and Industry announces the introduction of a new investment screening regime which will apply equally to both local and foreign investors in entities considered critical to national security interests

Following other countries which have tightened regulations on foreign investments in sectors sensitive to national security, Singapore has on 3 November 2023 announced the introduction of the Significant Investments Review Bill setting out a new investment screening regime which will apply (...)

Giorgio Motta, Bill Batchelor, Frederic Depoortere, Aurora Luoma, Ingrid Vandenborre, Niels Baeten The EU Commission starts implementing the mandatory notification obligations under the Foreign Subsidies Regulation

Starting today, October 12, 2023, the mandatory notification requirements under the EU’s Foreign Subsidies Regulation (FSR) apply. M&A deals involving businesses that (i) have been granted certain levels of financial support from non-EU governments and (ii) meet prescribed financial (...)

US Federal Trade Commission The US FTC finalises a consent order to prevent interlocking directorate arrangement and anticompetitive information exchange in a $5.2B cash-and-stock deal between a private equity firm and a natural gas producer (Quantum Energy Partners / EQT Corporation)

FTC Approves Final Order to Prevent Interlocking Directorate Arrangement, Anticompetitive Information Exchange in EQT, Quantum Energy Deal* The Federal Trade Commission finalized a consent order that prevents entanglements and the exchange of confidential, competitively sensitive information (...)

Aidan Scallan, Macalen Chetty The South African Competition Authority publishes its Draft Revised Public Interest Guidelines relating to merger control to address societal issues with competition instruments and calls for public comment

Revised Public Interest Guidelines* South Africa’s merger control landscape is ever-evolving, with a unique socio- economic context adding a distinctive layer of complexity. A recent report by the World Bank has highlighted the persistent and stark inequality within the country, revealing (...)

Mark Garden, Jamie Battersby, Elisha Bhugwandeen The South African Competition Authority shares its Draft Revised Public Interest Guidelines for mergers which aims at ensuring societal equality, for public comment

Competition Commission’s draft public interest guidelines for mergers published for public comment* ​​​​​​​​​​Businesses have anxiously been seeking clarity on the application of public interest conditions in merger transactions. It is anticipated that the Competition Commission’s draft (...)

Jeffrey Martino, Peter Tomczak, Ashley Eickhof, Michael DeFranco, Reagan R. Demas, William Devaney, Derek Liu, Joanna Ludlam, Jerome Tomas, Byron Tuyay, Alan Zoccolillo The US DoJ announces a new mergers and acquisitions safe harbor policy allowing acquiring companies to potentially avoid successor liability

In brief On 4 October 2023, Deputy Attorney General Lisa Monaco of the U.S. Department of Justice announced a new DOJ-wide policy that seeks to provide greater certainty as to the potential benefits to acquirers that uncover criminal conduct at a target company. The DOJ’s Mergers & (...)

Ann M. O’Brien, John D. Carroll, Leo Caseria, Lindsey Olson Collins, Rachel Guy, Kate Rumsey The US DoJ announces a mergers & acquisitions safe harbor policy for companies that discover wrongdoing by the acquired business in the course of a transaction and voluntarily disclose it

DOJ Announces Mergers & Acquisitions Safe Harbor Policy* The Department of Justice (DOJ) announced last week the advent of a new safe harbor for companies that discover wrongdoing by the acquired business in the course of an M&A transaction. Buyers hoping to take advantage of this (...)

Steven E. Fagell, Jennifer H. Saperstein, Nancy Kestenbaum, Thomas O. Barnett, Anne Y. Lee, Kate Patchen, Donald Ridings, Aaron Lewis, Benjamin Haley, Adam Studner, Ashley Nyquist, Kendra Mells Hood, Kyle Chow The US DoJ announces a new safe harbor policy for voluntary self-disclosures made in connection with mergers and acquisitions

DOJ Provides Further Voluntary Disclosure Incentives, This Time Linked to M&A Transactions, and Signals Other Areas of Focus What You Need to Know On October 4, 2023, Deputy Attorney General Lisa Monaco provided new and expanded policy guidance on corporate criminal enforcement, (...)

Elizabeth Vicens, Rahul Mukhi, David Leinwand, Abena Mainoo, David A. Last, Samuel Chang, Cristina N. Mendez The US DoJ provides additional guidance outlining the new department-wide M&A Safe Harbor for companies that voluntarily self-disclose and remediate criminal misconduct during the acquisition process

In recent months, U.S. Department of Justice (“DOJ”) leadership reiterated their intention to continue focusing on prosecuting crime by companies and responsible individuals, in particular in areas relating to national security. To this end, DOJ recently has amended or formalized policies (...)

Australian Competition Authority The Australian Competition Authority seeks views on a proposed merger between companies active in the supply of pathology services to hospitals (Australian Clinical Labs / Healius)

ACCC consults on ACL’s proposed divestiture remedy for Healius acquisition* The ACCC is seeking views on a proposed court-enforceable undertaking offered by Australian Clinical Labs Limited (ACL) in relation to its proposed acquisition of Healius Limited. ACL and Healius supply pathology (...)

Articles

Alexandre Rouhette, Pierre Garenne De facto control in EU merger control law

The Commission’s 2008 Consolidated Jurisdictional Notice addresses the concept of de facto control only superficially. In practice, the notion of de facto control raises many questions. Based on an analysis of the Commission’s decisional practice, this article aims to lay out the analytical (...)

Events

Luis Cabral, Lawrence J. White, Noah Joshua Phillips, Roger Noll, Andrew Zimbalist, Brad Humphreys, Rodney Fort, Michael D. Hausfeld, James A. Keyte, Gail Levine, Timothy Brennan, Gregory Rosston, Dennis W. Carlton, John D. Harkrider, Cristina Caffarra, Katja Seim, Paul Csiszar, David Gilo, George A. Rozanski, Ingrid Vandenborre, Jack Pace, Robert Willig, Samantha Knox, Martin D’Halluin, David A. Higbee, Boris Bershteyn, Harry First, Hal Varian The Global Antitrust Economics Conference

Annual Concurrences conference at NYU Stern School of Business with the support of Axinn, Bates White, CRA, Hausfeld, Qualcomm, Shearman & Sterling, Skadden, White & Case (Panel Sponsors) and MLex (Media Sponsor).

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