Than avoiding competing and accommodating
However, what it fails to encompass is the acquisition of a minority shareholding unrelated to control in the above sense, even though the shareholding could have the ability to cause competitive harm.
In these cases, the Commission has no legal authority to investigate the matter on competition grounds.
Hence it appears that there is an enforcement gap in relation to the aforesaid minority shareholdings causing competitive harm at the EU level. In fact, only three member states have acted to address this form of competition concern within their own national merger control regimes, specifically Austria, Germany and the UK, although the UK will soon not be a member state.
Therefore, an alternative more cooperative approach, which guarantees that virtually all such cases would come under EU law, is put forward.
However, the unilateral effect is not just about the merged entity increasing price but also whether this increase leads to price increases on the part of competitors as they respond to the increased demand caused by consumers switching to them on account of the said price increase by the concentration.
In the case of a minority shareholding in a rival, the unilateral effect could arise when the shareholding enables the acquirer to materially influence the Board of the other company—say in respect of strategic decisions concerning the raising of capital and/or in terms of joint ventures or other forms of collaboration with third companies—which weaken its ability to compete effectively.
Therefore an alternative more cooperative approach which guarantees the aforementioned in respect of both mergers and minority shareholdings is advanced.
The more cooperative approach in relation to mergers is explained first, as the approach toward minority shareholdings is an extension of it, creating an integrated approach within the architecture of separate jurisdictional zones.