The first ever preliminary ruling on a question relating to the Merger Regulation has been issued: in its judgment of 7 September 2017, the Court of Justice of the European Union (CJEU) fully accepts the legal view taken by STRABAG (Austria Asphalt), which was represented by CHSH. The judgment concerns a fundamental issue that goes to the very heart of European merger legislation and was highly anticipated.
The CJEU has ruled on a case involving Austrian merger control proceedings: STRABAG (via its subsidiary Austria Asphalt) had notified the Austrian Federal Competition Authority of a concentration; namely, the acquisition of a 50% equity interest in the Mürzzuschlag asphalt mixing plant under the sole control of PORR. The Cartel Court subsequently ruled in Phase II proceedings that it lacked jurisdiction and that the concentration would instead have to be notified to the European Commission in accordance with the Merger Regulation, despite the fact that the asphalt mixing plant could not be regarded as a "full-function" undertaking (nearly its entire production was intended for the parent companies). In appeal proceedings, the Supreme Cartel Court referred the case to the CJEU, requesting a preliminary ruling on whether – in simple terms – a joint venture has to perform all the functions of an autonomous economic entity on a lasting basis in order for a concentration to be deemed to arise under the Merger Regulation upon the acquisition of joint control of an existing undertaking.
CHSH successfully argued that the question submitted should be answered in the affirmative. Dr. Bernhard Kofler-Senoner, LL.M., partner and head of the anti-trust practice group at CHSH, is delighted that the CJEU– following the opinion of Advocate General Prof. Dr. Juliane Kokott – shares the legal view of CHSH: "The judgment of the CJEU can be seen as a landmark ruling for concentrations within the European Union as a whole. It provides our client and other businesses with the legal certainty they need."
The team at CHSH comprised partners Dr. Bernhard Kofler-Senoner, LL.M. (Lead Partner), Dr. Hans Kristoferitsch, LL.M. and Mag. Dr. Stefan Huber, LL.M., attorney MMag. Dr. Michael Mayer and associates Mag. Johannes Frank and Mag. Stefan Hirner, LL.M.
For further information, see: Court of Justice, 07/09/2017, C 248/16 – Austria Asphalt GmbH & Co. OG v Bundeskartellanwalt.