ЗАЈЕДНИЧКО УЛАГАЊЕ (JOINT VENTURE) КАО ПРЕДМЕТ КОНТРОЛЕ У ПРАВУ КОНКУРЕНЦИЈЕ ЕУ: ПРИМЕНА FULL-FUNCTION КРИТЕРИЈУМА
JOINT VENTURE CONTROL UNDER THE EU COMPETITION LAW: APPLICATION OF THE FULL-FUNCTION CRITERIA

Summary/Abstract: Globalization is a major reason why market participants use joint ventures (JVs) as a means to achieve their business strategies. The formation of international JVs has taken place at an unprecedented rate over the last two decades and international JVs are very common today. The EU competition law and merger control rules can have a critical impact on the establishment of JVs because JVs, by their nature, frequently involve cooperation between actual or potential competitors in a way which can impede competition on the EU market. It is commonly accepted that a JV is an undertaking which is jointly controlled by several other market participants, but it is up to the parent companies creating a JV to determine whether their JV is compatible with competition law rules, i.e. whether the JV satisfied the full-function criteria. The answer to this question will determine the legal framework applicable to each case. This paper gives an overview of the European Commission’s guidance and decisional practice in merger control cases concerning the application of the full-function criteria which delineate the scope of the merger control rules regarding the creation of JVs. The author points to various JV scenarios and shows that the Commission’s guidance and decisional practice are inconsistent as to when and to which operations the full-function criteria must be applied. The uncertainty of the concept of fullfunctionality is the result of the Commission’s guidance and case-by-case analysis.

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