POSSIBLE IMPROVEMENTS OF CONTROLLING ACQUISITIONS OF MINORITY SHAREHOLDINGS (STRUCTURAL LINKS)

Abstract: In June 2013 the Commission published its consultation paper “Towards more effective EU merger control” whereby the Commission was seeking to i) extend the scope of the EU merger control to the acquisition of non-controlling minority shareholdings and ii) reform the referral system. The paper proposed several options on how to successfully achieve the set objectives without creating undue burdens for businesses and opened up for a consultation period between June and September 2013 during which a considerable amount of stakeholders submitted their responses. Considering the tone of voice throughout the consultation paper it is fairly evident that the Commission is rather keen on introducing an additional toolkit providing it the possibility to intervene, investigate and, if appropriate, declare structural links compatible or incompatible within the ambit of the Merger Regulation. The key drive for its concerns lies, among many factors, in economic theory and practical examples including the heavily debated Ryanair v Aer Lingus case. In January 2014 the New Implementing Merger Regulation entered into force containing amended provisions with regards to a new referral system but lacking the introduction of self-standing provisions controlling acquisitions of minority shareholdings. The reason hereof seems to lie in the fact that many of the respondents considered the extension as too far-reaching and disproportionate to the perceived problem. The Commission labelled the objectives of its proposal as creating a “more effective and business-friendly Union”, an objective that, most stakeholders find contradictory as it rather creates additional burdens, increasing expenses and leads to less legal certainty in the business environment. This thesis aims to examine to what extent the proposed amendments would affect businesses if fully implemented by reviewing the underlying reasons for introducing a customized set of rules aiming at controlling creations of structural links. Accordingly, this paper will highlight the development of EU merger control, the current merger practice, the objectives and options of the proposal and the responses thereof as a step to fulfil the purpose of this thesis; namely exploring if merger regulation intervention conferring jurisdictional power for the Commission to intervene and reject acquisitions of (non –controlling) minority shareholdings will create undue burdens, increasing costs and lead to less legal certainty for businesses. This will be achieved by introducing a discussion of: “what is to come-character” and boil down to which system, if any, is the most beneficial for companies. By establishing this line of discussion, the author hopes that the thesis will serve as a basis for future research.