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Austria Asphalt

On 7 September 2017, the EU Court of Justice delivered a significant judgment in (Case C-248/16). The case addressed the definition of transactions caught by Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ).

The Merger Regulation

The regulation contains a system for the compulsory notification to the EU Commission of transactions that meet certain thresholds, and therefore have what is known in EU merger control terminology as an ‘EU dimension’. Similarly, the Irish (as amended) contains a regime for the compulsory notification to the Competition and Consumer Protection Commission (CCPC) of mergers and acquisitions that exceed certain thresholds or that amount to a media merger.

Mergers that are compulsorily notifiable under the regulation or the 2002 act are void unless approved. Therefore, it is very important to be able to ascertain from the outset whether or not a proposed transaction falls within the merger control regime under the regulation or the act.

A changing practice

Marco Hickey is Head of the EU, Competition and Regulated Markets Unit at LK Shields Solicitors. Analysing the Austria Asphalt case, he notes that it casts aside the Commission’s view that transition from sole to joint control of an existing business would amount to a ‘concentration’ under the legislation. This analysis, he writes, was applied by the Irish Competition and Consumer Protection Commission (CCPC) in its interpretation of the Competition Act. Numerous transactions over the years were notified to the commission under the Merger Regulation and to the CCPC under the 2002 act on the basis of the above view.

In the Gazette, Hickey analyses Austria Asphalt, and its implications for future transactions.

• Read the full article in the March 2018 Gazette

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