Minority Shareholdings: Using a Sledgehammer to Crack a Nut

Mar 20, 2014

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) presents:

Minority Shareholdings: Using a Sledgehammer to Crack a Nut by Christoph Barth (Linklaters LLP) and Juan Restrepo-Rodríguez (Linklaters LLP)

Intro by Anna Tzanaki (Competition Policy International)

In our March edition of the Europe Column, Christoph Barth and Juan Restrepo-Rodríguez (Linklaters) revisit the issue of non-controlling minority shareholdings from a comparative perspective. The authors shed light on the gaps of the current EU competition law regime and they point to a potential need for reform of EU merger control to extend the Commission’s jurisdiction to such cases. Notably, German merger control allows scrutiny of shareholding acquisitions well below the applicable EU thresholds. Drawing on German decisional practice, however, the authors advocate that an ex post system of control with a well-defined safe harbour is preferable in the case minority shareholdings falling short of control. As a matter of policy, they suggest that this legal solution is better aimed to ensure legal certainty and avoid an increased number of unnecessary notifications as evidenced under an ex ante control system. We shall wait and see if the Commission is of the same opinion. Enjoy reading!

The European Commission (the “Commission”) is currently considering a revision to the treatment of non-controlling minority shareholdings.¹ So far its jurisdiction has been limited to