EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
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 par - ties’ turnover in the last financial year for which audited figures are available, apply to all concen - trations. 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 billion; • in each of at least three EU member states, the combined aggregate turnover of all the undertakings 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 con - cerned exceeds EUR25 million; and • the aggregate EU-wide turnover of at least two of the undertakings concerned exceeds EUR100 million. Two-Thirds Exception The primary or alternative thresholds will not be met if each of the undertakings concerned
Joint Control Joint control exists where two or more under - takings have the possibility of exercising deci - sive influence over another undertaking. In this context, decisive influence normally means the power to block decisions. A typical example of joint control would be a 50:50 joint venture (“C”), with both shareholders (”A” and “B”) having veto rights over key strate - gic decisions of C, such as the approval of C’s business plan or budget, or the appointment of C’s senior management. In such a situation, as A and B must reach a consensus in determining the commercial policy of C, they are considered to jointly control C. Veto rights that are of the kind typically granted to minority shareholders for the preservation of their basic shareholder interests, such as a veto over changes to C’s corporate statute or the liquidation of C, would not normally confer control in the absence of other factors. Both sole control and joint control may be de jure (eg, based on contractual rights set out in a shareholders’ agreement) or de facto (eg, as a result of strong economic links or other factors that confer the possibility to exercise decisive influence over an undertaking). An assessment of control must therefore consider the full fac - tual 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 under - taking is not a concentration under the EUMR. However, such transactions may be notifiable in certain EU member states.
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