Competition Law and the Regulation of Non Controlling Minority Interests: The Regulatory Gap
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2023Author:
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2025-07-10Citation:
Hickey, Marco William, Competition Law and the Regulation of Non Controlling Minority Interests: The Regulatory Gap, Trinity College Dublin, School of Law, Law, 2023Download Item:
Marco W Hickey Thesis - 22 March 2023.pdf (Thesis) 2.812Mb
Abstract:
This thesis explores the regulation of minority interests (both cross and common) under Irish and EU competition law. It examines the economic theories of harm regarding cross and common minority shareholdings which, in turn, reveals that the principles regarding cross minority shareholdings are relatively well settled; whereas the debate as to the competitive effects of common shareholdings is alive and there is therefore no general consensus on the subject.
This thesis looks at the available empirical evidence of instances in which such shareholding links may give rise to anti-competitive effects. It examines the scope of the mergers regime in Part 3 of the Competition Act 2002 (2002 Act) in Ireland and the Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (2004 EMCR) at EU level, respectively, to confirm that non-controlling minority interests are excluded under both systems. The author explores the shortcomings of the scope of the only remaining regulatory frameworks, in the form of the general competition rules in Sections 4 and 5 of the 2002 Act and Articles 101 and 102 of the Treaty on the Functioning of the European Union, available to control the acquisition of non-controlling minority interests. The thesis is focused on the limitations of the jurisdictional scope of the above systems, which in turn results in minority interests escaping substantive competition scrutiny. The author examines the jurisdictional experience of ex-ante control of minority interests in certain other countries to conclude that none of those selected jurisdictions serves as an ideal model on which to base a proposal for reform of the merger control regime in Ireland or the EU. He reviews and critiques the Commission?s 2014 White Paper towards more effective EU merger control which contains proposals to bring minority interests within the scope of the 2004 EMCR under certain conditions.
This thesis reveals that the current jurisdictional limitations of existing Irish and EU competition law in relation to minority interests have diverted attention away from the substantive issues, which is where the focus should lie. Similarly, the Commission?s proposals under the White Paper would entail the application of jurisdictional parameters of a limiting nature, again undoubtedly diverting attention away from the substantive analysis of minority interests. Building on the accumulated body of research underlying the preparation and production of this thesis, the author concludes by putting forward a series of proposals to fill the regulatory gap by recommending a jurisdictional framework in respect of the regulation of minority interests which will broaden the regulatory net, thus allowing for a greater focus on substantive, as opposed to jurisdictional, analyses of the different scenarios and complex issues which arise from cross and common shareholdings.
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https://tcdlocalportal.tcd.ie/pls/EnterApex/f?p=800:71:0::::P71_USERNAME:HICKEYM7Description:
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Author: Hickey, Marco William
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Schuster, AlexanderPublisher:
Trinity College Dublin. School of Law. Discipline of LawType of material:
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Regulatory, Minority Interests, CompetitionLicences: