Article 81 as a tool for controlling minority cross-shareholdings between competitors

Abstract:

The question regarding the most appropriate treatment of minority shareholdings was recently raised in the European Commission's Green Paper on the Review of the Merger Regulation. However, no legislative changes are expected to come in this respect and it is highly likely that minority shareholdings will continue to be scrutinised under Arts 81 and 82 of the EC Treaty.

The present paper investigates to what extent Art.81 may be relied on in assessing such transactions. It argues that although Community case law embodies the correct substantive principles for the assessment of agreements for the acquisition of minority shareholdings under Art.81, these principles would need to be recognised explicitly and systematised in an orderly way. The paper highlights, however, that Art.81 is not entirely sufficient for the prevention of restrictive share transactions and that the Commission should reconsider the position it has taken.

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