ECJ Judgment In Austria Asphalt Smooths Over A Crack In EU Merger Control

The creation of a joint venture between two or more companies, using a company which was previously controlled solely by one parent, is not subject to EU merger control where the joint venture itself is not an independent player on the market. So ruled the European Court of Justice (ECJ) in Austria Asphalt v Bundeskartellanwalt, published on 7 September 2017.

The creation of a joint venture (JV) can only be subject to the EU Merger Regulation (EUMR) where the JV is a "full-function" JV. However, until now it has not been clear whether a change in control of a non "full-function" JV would also be subject to the EUMR.

Under the EUMR, a JV is "full-function" if it performs on a lasting basis all the functions of an autonomous economic entity, i.e. it is active on the market as an independent entity. A JV must, in particular, have sufficient assets, personnel and financial resources to perform its business independently of its parents. A JV will not be full-function if