EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
to exercise decisive influence over an undertaking). An assessment of control must therefore consider the full factual circumstances of a transaction, including the contractual and non-contractual rights of the parties involved. Minority Shareholdings The acquisition of a minority shareholding that does not grant sole or joint control over an undertaking is not a concentration under the EUMR. However, such transactions may be notifiable in certain EU member states. 2.5 Jurisdictional Thresholds Concentrations that meet either of the turnover thresholds below have an “EU dimension” and must be notified to the Commission, provided that they do not fulfil the “two-thirds” exception. These thresholds, which are based on the parties’ turnover in the last financial year for which audited figures are available, apply to all concentrations. There are no additional sector-specific thresholds. Primary Thresholds The primary thresholds are as follows: • the combined aggregate worldwide turnover of all the undertakings concerned exceeds EUR5 billion; and • the aggregate EU-wide turnover of each of at least two of the undertakings concerned exceeds EUR250 million. Alternative Thresholds The following alternative thresholds also apply: • the combined aggregate worldwide turnover of all the undertakings concerned exceeds EUR2.5 bil - lion; • in each of at least three EU member states, the combined aggregate turnover of all the undertak - ings concerned exceeds EUR100 million; • in each of at least three member states included above, the aggregate turnover of each of at least two of the undertakings concerned exceeds EUR25 million; and
• the aggregate EU-wide turnover of at least two of the undertakings concerned exceeds EUR100 mil - lion. Two-Thirds Exception The primary or alternative thresholds will not be met if each of the undertakings concerned achieves more than two thirds of its aggregate EU-wide turnover in one and the same member state. 2.6 Calculations of Jurisdictional Thresholds Article 5 of the EUMR outlines how turnover should be calculated for the purposes of the EU jurisdictional thresholds. Calculation of Turnover The term “aggregate turnover” refers to revenue derived from the sale of products and/or services by the undertakings concerned in the most recent finan - cial year for which audited accounts are available. Turnover for each undertaking concerned normally includes all group-wide turnover, excluding intra- group turnover. If only part of an undertaking is being acquired (eg, a subsidiary or a division), only the turnover relating to that part counts as the target’s turnover, and the seller’s turnover is ignored. Revenues are calculated only on the basis of net turnover (ie, after the deduction of sales rebates, val - ue added tax and any other taxes directly related to turnover). The calculation of aggregate turnover gen - erally excludes any extraordinary revenues that do not correspond to the ordinary activities of the undertak - ings concerned, such as income from the sale of busi - nesses or assets. Geographical Allocation of Turnover Turnover is generally allocated based on where the customer is located, as this is normally where compe - tition with alternative suppliers takes place. The Com - mission’s Consolidated Jurisdictional Notice provides additional detail on where turnover should be allocat - ed for specific types of sales, including internet sales. Revenues registered in a foreign currency must be converted to euros using the average exchange rate
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