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A Coat of Many Colors: Joint Ventures in International Merger Control
Antitrust, Vol. 32, No. 2, Spring 2018, p.89-93
Authors: Ms Natalie YEUNG, Paddy Law
Year published: 2018
"Joint Ventures often raise complex merger control questions. Divergence in the treatment of joint ventures under competition laws around the world means that the jurisdictional assessment of the same transaction may be diametrically different. A sound knowledge of international merger control rules is crucial for identifying where a joint venture may trigger a merger filing and, where possible, for advising clients on possible structuring options to minimize the number of merger filings that may be required.

In Europe, it is well established that the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (full-function joint venture) is a notifiable concentration. This feature of EU merger control has been exported to some other countries. There was some uncertainty as to whether the creation of a joint venture by way of an acquisition of joint control of a previously wholly owned, non-full-function target undertaking (for example, purchase of a 50 percent stake in an existing plant that was previously wholly owned) falls within the definition of 'concentration' under Article 3 of the EU Merger Regulation (EUMR). In the recent judgment of Austria Asphalt GmbH & Co OG v Bundeskartellanwalt, which is the first reference for a preliminary ruling on the subject of the EUMR regime, the Court of Justice of the European Union (ECJ) held that a concentration is deemed to arise only if such joint venture is of 'full-function character'.

This article discusses the implications of the Austria Asphalt case for the treatment of non-full-function joint ventures under the EUMR regime and national regimes of certain member states of the European Union. Looking beyond Europe, we then consider more broadly the differences in treatment of joint ventures in international merger control, and highlight a number of practical points of interest when planning cross-border joint venture transactions."
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