In the United States, merger control rules require notifications to be submitted to the Federal Trade Commission and Department of Justice in respect of certain acquisitions of non-controlling minority shareholdings.
In the European Union (EU), under the current Merger Regulation (Council Regulation (EC) No. 139/2004), the European Commission (Commission) only has jurisdiction to review transactions that result in a change of control. Specifically, reviews of acquisitions of non-controlling minority shareholdings (or “structural links”) can only be carried out post-transaction under the standard behavioral competition rules set out in Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). This constitutes what the Commission refers to as an “enforcement gap” in the EU. The Merger Regulation cannot be applied to non-controlling minority shareholdings, even if they may result in potential to harm competition, as was confirmed by the recent Ryanair/Aer Lingus case.