Bridging the Gap in the Shifting Sands of Non-Controlling Financial Holdings?

Hawk and Huser, who started the legal debate on EU competition law relating to minority shareholdings, compared the evolving legal situation in the 1990s to shifting sands. More than two decades after their demand for a clearer approach, the situation has not substantially changed. The legal framework emerging from the recent Commission White Paper, entitled ‘Towards a More Effective Merger Control', looks to be struggling in the midst of two kinds of shifting sands, that is, on the one hand, those pertaining to the uncertainty of current EU competition law on this matter and, on the other hand, those represented by evolving European corporate law and practice, among which are the increasing introduction of stronger minority shareholder rights, the diffusion of new forms of equity ownership, for instance the so-called morphable ownership, and the emergence of hybrid finance, especially in the banking sector. Such uncertainties at the corporate law level may suggest the opportunity to improve the proposed reform framework, redesigning thresholds, including the assessment of the anticompetitive effects of debt and hybrid financial instruments and eventually the decentralization of part or all of the application of the new rules at a national level