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.
Highlights
On 7 September 2017, the Court of Justice of the European Union rendered a preliminary ruling requested by the Austrian Supreme Court
The case went to the Austrian Competition Court, which decided that the transaction was within the scope of Article 3(1)(b) of the EUMR and, the transaction should be notified to the European Commission (EC)
Austria Asphalt argued that the relevant provision for assessment of the given transaction was Article 3(4) of the EUMR, according to which only full function joint ventures fall within the scope of the EU merger control regime
Summary
The economic foundations of merger control regimes in general are based on the SCP paradigm (structure-conduct-performance) that was developed in the 1950s (Lindsay and Berridge, 2012). Regulation 4064/89 tried to resolve this problem by stipulating that only joint ventures that performed on a lasting basis all the functions of an autonomous economic entity and that did not lead to coordination of the competitive behaviour of undertakings would fall under the scope of the merger control regime. This created separate rules for concentrative joint ventures, which were subject to the merger control regime, and cooperative joint ventures, which were subject to the prohibition of anticompetitive practices and abuse of a dominant position. Control, but they should not constitute a legal concept of market structure for jurisdictional purposes. To sum up, following the judgment it is still unclear how to understand the concept of market structure under the EUMR and more comprehensive guidance on that matter would be welcome
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
