ORCID
Adrian Bielecki: 0000-0002-0516-697X
Keywords
concentrations, EU Merger Regulation, full-function undertaking, joint, venture, mergers
Abstract
In Austria Asphalt, the Court of Justice issued the first preliminary ruling related to the EU merger control regime. In Advocate General Kokott’s words, the Austrian Supreme Court asked the Court of Justice to answer the fundamental question of what constitutes a concentration between undertakings within Article 3 of the EUMR. The Court of Justice held that Article 3 of the EUMR must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity. Although the ruling was rendered in the context of a specific transaction scenario, the underlying reasoning could shed new light on how to assess transactions that fall between acquisition of control and creation of a joint venture. However, this reasoning is incompliant with the purposes and economic foundations of the EU merger control regime. This can be proven both in relation to the transaction scenario directly covered by the question for a preliminary ruling and, if extrapolated, in relation to other transaction scenarios.
Recommended Citation
Bielecki, A. (2020). Into the Grey Zone. What Do We (Don’t) Know About Types of Concentrations Between Undertakings Under EU law After Austria Asphalt?. Yearbook of Antitrust and Regulatory Studies, 13(21), 219-236. https://doi.org/10.7172/1689-9024.YARS.2020.13.21.8
First Page
219
Last Page
236
Page Count
17
Received Date
01.06.2019
Accepted Date
01.08.2019
DOI
10.7172/1689-9024.YARS.2020.13.21.8
Publisher
University of Warsaw
Publication Date
2020-09-30
