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A Rule of Reason Approach for Passive Minority Interests within the European Union

Abstract In this interdisciplinary paper we analyze the anticompetitive effects and the practicability and applicability of passive (non-controlling) minority interests within the existing Merger Regulation system [Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ L 24/1]. The empirical evidences from existing economic literature and case law show that the existence of an enforcement gap in European Union competition law regarding the anticompetitive effects of non-controlling minority interests has not been confirmed so far. Therefore, there is no space, at least to date, for a per se ruling in the European Union Law for the assessment of passive minority interests, but for a Rule of Reason approach, based on a case by case analysis. The Commission should continue to investigate non-controlling transactions and, in the future, an ex post assessment/quantification of their anticompetitive effects, based on existing (or settled) case law and economic theory, should be at the core of its agenda.