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The Concept of Control within the Scope of Mergers and
Acquisitions
In order for the conditions upon which the minority share transfers
between competitors are subject to authorization may be identified, the
concept of control must be elaborated upon within the context of com-
petition law. Both the Communiqué and the Guidelines on Cases
Considered as a Merger or an Acquisition and the Concept of Control
(“Guidelines”) regulates the instruments that constitute control, as well
as the change of control. Similarly, the ability to exercise a “decisive
influence” over an undertaking is the condition foreseen by the
Regulation for a minority share transfer to fall within its scope. The
“decisive influence” as described by the Regulation may be defined as
the power to influence the strategic decisions of an undertaking.
As per Art. 5 of the Communiqué, the control is defined as
whether, separately or together, there is de facto or de jure exercise of
decisive influence over an undertaking. The influence in question may
be acquired through rights, such as the transfer of shares or assets, con-
tracts or other instruments.
Sole Control
The Guidelines define the concept of sole control as the case
where one undertaking, alone, has decisive influence over an under-
taking. The decisive influence in question is regulated as the right to
determine the strategic commercial decisions of an undertaking and,
although not being able to take advantage of these strategic decisions,
the right of a single shareholder to prevent these types of decisions
from being taken, in other words, the right to veto. Pursuant to the
Communiqué and Guidelines, sole control can be acquired on a de jure
and/or de facto basis.
In order for de jure sole control to be in question, the majority of
voting rights must be transferred. In cases where minority shares are
transferred, when the market structure, the shareholding structure of
the company, and the distribution of voting rights are considered, the
majority of voting rights may be transferred between the competitors
by way of preference shares on voting, thereby resulting in that merg-
er or acquisition being subject to authorization as per the Communiqué.
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NEWSLETTER 2015