Targeted Transparency Control of Competitively Significant Links: Heading Towards Regulatory Overkill?

Abstract

The minority shareholdings problem in the EU has been headlining the Commission’s agenda for some time now. The matter of an enforcement/regulatory gap in handling minority stakes transactions at EU level proves to be disconcerting not only for competition law enforcers, but also for the market players that are likely to deal with the system. The 2014 White Paper on more effective EU merger control has taken the debate to the point of putting forward a clearer method of tackling minority shareholdings: a targeted transparency control system of competitively significant links. While this development is to be appreciated, questions relating this proposed system’s proportionality may be raised. Going beyond the discussion of whether antitrust intervention is warranted at all for minority shareholdings, this contribution highlights some elements of the targeted transparency control system of competitively significant links, which may allow for proportionality concerns to creep in. Specifically, the contribution addresses the problems that may result from relying on the transaction parties’ self-assessment, the burdens embedded in the short information notice, the costs and delays brought about by the waiting period, and the risks of ex-post intervention. The conclusion is drawn that proportionality is indeed a concern difficult to settle. Yet, the control system’s proportionality is key to its correct functioning, and at the end of the day, to the attractiveness of the EU Internal Market’s legal ambit. In this respect, some of the White Paper’s proposals seem to require more thought on the proportionality end.