In its judgment of September 7, 2017, the Court of Justice of the European Union accepted the arguments made by CHSH on behalf of STRABAG, issuing what the firm is calling "the first ever preliminary ruling on a question relating to the Merger Regulation."
According to CHSH, "the judgment concerns a fundamental issue that goes to the very heart of European merger legislation and was highly anticipated."
According to CHSH, "STRABAG (via its subsidiary Austria Asphalt) had notified the Austrian Federal Competition Authority of a concentration; namely, the acquisition of a 50% equity interest in the Murzzuschlag asphalt mixing plant under the sole control of PORR. The Cartel Court subsequently ruled in Phase II proceedings that it lacked jurisdiction and that the concentration would instead have to be notified to the European Commission in accordance with the Merger Regulation, despite the fact that the asphalt mixing plant could not be regarded as a 'full-function' undertaking (nearly its entire production was intended for the parent companies). In appeal proceedings, the Supreme Cartel Court referred the case to the CJEU, requesting a preliminary ruling on whether – in simple terms – a joint venture has to perform all the functions of an autonomous economic entity on a lasting basis in order for a concentration to be deemed to arise under the Merger Regulation upon the acquisition of joint control of an existing undertaking."
CHSH successfully argued that the question should be answered in the affirmative. Partner Bernhard Kofler-Senoner, the head of the CHSH anti-trust practice group who led his firm's team in the case, is delighted that the CJEU shares the legal view his team put forward, saying: "The judgment of the CJEU can be seen as a landmark ruling for concentrations within the European Union as a whole. It provides our client and other businesses with the legal certainty they need."
Kofler-Senoner was assisted by CHSH Partners Hans Kristoferitsch and Stefan Huber, Attorney Michael Mayer, and Associates Johannes Frank and Stefan Hirner.