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.

Citation
Case T-102/96, [1999] ECR II-753
Court
General Court of the European Union
Year
1999
Subject
Competition Law
Topic
Merger control

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.

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