Significant shifts have occurred during the past three years in the control thresholds that determine whether an acquisition of a minority shareholding will be subject to one or more EEC competition laws. The scope and effects of these shifts are neither clear nor necessarily consistent. The Commission appears on the one hand to have expanded the Merger Regulation's concept of decisive influence to reach a variety of minority shareholdings previously falling within the Philip Morris influence standard, while on the other hand to have expanded the Philip Morris influence standard to reach not only transactions previously thought to be passive (i.e. no influence), but perhaps also concentrations that are normally subject to the exclusive jurisdiction of the Merger Regulation, vis-à-vis Articles 85 and 86. Whether these control thresholds will continue to shift is critically important to firms contemplating the legal certainty of their future investments. Eventually, the Commission may conclude that the potential benefits of “flexible” control thresholds are outweighed by the costs, such as reduced legal certainty, higher transaction costs (both public and private) and slower decisionmaking capabilities. Simpler, albeit less flexible, thresholds may ultimately be required to control these shifting sands.
Barry E. Hawk and Henry L. Huser,
"Controlling" the Shifting Sands: Minority Shareholdings Under EEC Competition Law,
17 Fordham Int'l L.J. 294
Available at: http://ir.lawnet.fordham.edu/ilj/vol17/iss2/2