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Gun-jumping in the EUMR: How it ought to be regulated

Lauri, Okko LU (2020) JAEM03 20201
Department of Law
Faculty of Law
Abstract
This Master’s thesis concerns the regulation of premature implementations of mergers, also known as gun-jumping. The purpose of the paper is to establish how the phenomenon should be regulated in the European Union Merger Regulation (EUMR). Potential solutions are sought primarily from the case-law of the Court of Justice of the European Union. With the objective of the EUMR in mind, namely the protection of the competitive structure through merger control, the reasoning of the Courts, Opinions of Advocate Generals and the arguments of the parties to each case are analysed. From this analysis suggestions for legislative measures are made. The propositions concern certain recurring matters, such as the acquisition of minority shareholdings,... (More)
This Master’s thesis concerns the regulation of premature implementations of mergers, also known as gun-jumping. The purpose of the paper is to establish how the phenomenon should be regulated in the European Union Merger Regulation (EUMR). Potential solutions are sought primarily from the case-law of the Court of Justice of the European Union. With the objective of the EUMR in mind, namely the protection of the competitive structure through merger control, the reasoning of the Courts, Opinions of Advocate Generals and the arguments of the parties to each case are analysed. From this analysis suggestions for legislative measures are made. The propositions concern certain recurring matters, such as the acquisition of minority shareholdings, which the case Electrabel elaborates on. Because of their common occurrence, they should be regulated in the EUMR, for example by establishing a threshold shareholding percentage, under which gun-jumping cannot occur.

Another core issue is that concerning the principle of ne bis in idem in the context of gun-jumping. Under the contemporary legal framework, a company may be fined twice for what is essentially a single conduct; hence, this thesis argues that the EUMR must be changed in this regard, inter alia. This problem is examined particularly in the analysis concerning the Marine Harvest case. Another prominent matter is the lack of clarity in the EUMR as to what it means to implement a concentration. The judgment of the European Court of Justice in the case Ernst & Young provides assistance to that end. That said, as is established in this paper, it would be too heavy a burden on the legislature to draft an exhaustive list of operations that constitute gun-jumping. Therefore, the concept demands a negative definition. On the contrary, a non-exhaustive list of circumstances impacting the calculating of the fine for a gun-jumping violation should be included in the Regulation. (Less)
Popular Abstract
This Master’s thesis concerns the regulation of premature implementations of mergers, also known as gun-jumping. The purpose of the paper is to establish how the phenomenon should be regulated in the European Union Merger Regulation (EUMR). Potential solutions are sought primarily from the case-law of the Court of Justice of the European Union. With the objective of the EUMR in mind, namely the protection of the competitive structure through merger control, the reasoning of the Courts, Opinions of Advocate Generals and the arguments of the parties to each case are analysed. From this analysis suggestions for legislative measures are made. The propositions concern certain recurring matters, such as the acquisition of minority shareholdings,... (More)
This Master’s thesis concerns the regulation of premature implementations of mergers, also known as gun-jumping. The purpose of the paper is to establish how the phenomenon should be regulated in the European Union Merger Regulation (EUMR). Potential solutions are sought primarily from the case-law of the Court of Justice of the European Union. With the objective of the EUMR in mind, namely the protection of the competitive structure through merger control, the reasoning of the Courts, Opinions of Advocate Generals and the arguments of the parties to each case are analysed. From this analysis suggestions for legislative measures are made. The propositions concern certain recurring matters, such as the acquisition of minority shareholdings, which the case Electrabel elaborates on. Because of their common occurrence, they should be regulated in the EUMR, for example by establishing a threshold shareholding percentage, under which gun-jumping cannot occur.

Another core issue is that concerning the principle of ne bis in idem in the context of gun-jumping. Under the contemporary legal framework, a company may be fined twice for what is essentially a single conduct; hence, this thesis argues that the EUMR must be changed in this regard, inter alia. This problem is examined particularly in the analysis concerning the Marine Harvest case. Another prominent matter is the lack of clarity in the EUMR as to what it means to implement a concentration. The judgment of the European Court of Justice in the case Ernst & Young provides assistance to that end. That said, as is established in this paper, it would be too heavy a burden on the legislature to draft an exhaustive list of operations that constitute gun-jumping. Therefore, the concept demands a negative definition. On the contrary, a non-exhaustive list of circumstances impacting the calculating of the fine for a gun-jumping violation should be included in the Regulation. (Less)
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author
Lauri, Okko LU
supervisor
organization
alternative title
An analysis in the light of recent case-law
course
JAEM03 20201
year
type
H2 - Master's Degree (Two Years)
subject
keywords
Gun-jumping, merger, implementation, concentration, EUMR
language
English
id
9013200
date added to LUP
2020-06-12 17:30:00
date last changed
2020-06-12 17:30:00
@misc{9013200,
  abstract     = {This Master’s thesis concerns the regulation of premature implementations of mergers, also known as gun-jumping. The purpose of the paper is to establish how the phenomenon should be regulated in the European Union Merger Regulation (EUMR). Potential solutions are sought primarily from the case-law of the Court of Justice of the European Union. With the objective of the EUMR in mind, namely the protection of the competitive structure through merger control, the reasoning of the Courts, Opinions of Advocate Generals and the arguments of the parties to each case are analysed. From this analysis suggestions for legislative measures are made. The propositions concern certain recurring matters, such as the acquisition of minority shareholdings, which the case Electrabel elaborates on. Because of their common occurrence, they should be regulated in the EUMR, for example by establishing a threshold shareholding percentage, under which gun-jumping cannot occur.

Another core issue is that concerning the principle of ne bis in idem in the context of gun-jumping. Under the contemporary legal framework, a company may be fined twice for what is essentially a single conduct; hence, this thesis argues that the EUMR must be changed in this regard, inter alia. This problem is examined particularly in the analysis concerning the Marine Harvest case. Another prominent matter is the lack of clarity in the EUMR as to what it means to implement a concentration. The judgment of the European Court of Justice in the case Ernst & Young provides assistance to that end. That said, as is established in this paper, it would be too heavy a burden on the legislature to draft an exhaustive list of operations that constitute gun-jumping. Therefore, the concept demands a negative definition. On the contrary, a non-exhaustive list of circumstances impacting the calculating of the fine for a gun-jumping violation should be included in the Regulation.},
  author       = {Lauri, Okko},
  keyword      = {Gun-jumping,merger,implementation,concentration,EUMR},
  language     = {eng},
  note         = {Student Paper},
  title        = {Gun-jumping in the EUMR: How it ought to be regulated},
  year         = {2020},
}