COMPETITION • EUROPEAN LAW • MERGERS
A transaction resulting in the sole control of an undertaking by another, in consideration of the acquisition of the aggregate capital, constitutes a concentration. The Jurisdictional Notice makes a distinction between sole control on a de jure basis, which arises out of the acquisition of a majority of the voting rights, from sole control on a de facto basis, exercised by the main minority shareholder, given the level of its shareholding, the previous voting patterns at shareholders’ meetings and the position of other shareholders. Sole control therefore does not necessarily require the holding of an interest greater than or equal to 50%, but may also be the consequence of the acquisition of a minority stake.
Where the shareholding is less than 30%, sole control may result from factors as varied as the holding of administrative powers by the purchaser’s parent company or having more than 50% of the voting rights, the possibility to exercise rights associated with warrant shares, the existence of provisional joint control, the low participation of shareholders in general meetings and the votes being widely dispersed or the holding of a veto right.