Gencor Ltd v Commission
The EU Merger Regulation applies to a merger between non EU companies where it is foreseeable that it will have an immediate and substantial effect in the EU, and it covers collective dominance.
Facts
Gencor, a South African company, and Lonrho, a British company, proposed to acquire joint control of Impala Platinum, a South African platinum producer. The merger would have created a duopoly with Anglo American's subsidiary in the world market for platinum. The European Commission prohibited the merger, on the ground that it would create a collectively dominant position. Gencor argued that the Commission had no jurisdiction over a merger concerning activities in South Africa, which had been approved by the South African authorities.
Legal principle
The General Court upheld the prohibition. The court held that the Merger Regulation applied, because the undertakings had substantial sales in the EU, and that applying it was justified under public international law where it was foreseeable that the concentration would have an immediate and substantial effect in the EU. The court also confirmed that the Regulation applied to the creation of a collective dominant position, which could arise from the structure of an oligopolistic market in which the members, by recognising their common interests, could adopt a common policy without needing to enter into an agreement or concerted practice.
Related cases on merger control
- Airtours plc v Commission Case T-342/99, [2002] ECR II-2585
- Bertelsmann AG and Sony Corp of America v Independent Music Publishers and Labels Association (Impala) Case C-413/06 P, [2008] ECR I-4951
- British Sky Broadcasting Group plc v Competition Commission [2010] EWCA Civ 2
- CK Telecoms UK Investments Ltd v Commission Case T-399/16, EU:T:2020:217
- Commission v Tetra Laval BV Case C-12/03 P, [2005] ECR I-987
- IBA Health Ltd v Office of Fair Trading [2004] EWCA Civ 142
- Illumina Inc v Commission Joined Cases C-611/22 P and C-625/22 P, EU:C:2024:677
- Meta Platforms Inc v Competition and Markets Authority [2022] CAT 26
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