II. Definition and Characterization of JVs for Competition Law Purposes
The introduction of a first normative definition of joint venture (rather formal)…
Within the analytical uncertainty that characterizes JV analysis and purporting to…
In a nutshell, the first analytical level of this definition comprehends three e…
(i) Joint ownership of a new business structure by two or more parent undertakings…
(ii) The making of significant contributions to such structure by each parent undertaking…
(iii) Establishment of a legal entity distinct from those parent undertakings, whether personalised or not –…
A second analytical level of the envisaged definition of JV comprises a fourth constitutive…
(iv) This entails a process of creation of significant new enterprise capability that…
Under the MCR/89, with subsequent fine-tuning resulting in the current caracterization…
Within a more thorough characterization of the content of this full functionality…
(i) JV must have its own direct activity on the market;…
(ii) As regards the scope of its activities JVs must perform those functions which…
(iii) JVs must have the necessary resources for such a task.…
Conversely the idea of an ‘autonomous economic entity’ does not mean JVs with autonomy vis a vis Parent Undertakings on adoption of its strategic decisions -…
This Commission reading of the full functionality test has been confirmed, e.g.,…
A JV is not full function (being qualified as cooperative) if it (a) only…
In other words, these JVs are auxiliary or instrumental to their parent undertakings…
Under the EU Commission praxis most concentrative JVs (assessed under MCR) are incorporated JVs (with the new company/Newco under dual control of parents),…
However, this does not correspond to a ‘golden’/‘necessary rule’. In fact, in the…
That happened, e.g., in the case assessed in the Commission decision “Alitalia/KLM”…
It has to be acknowledged, conversely, that such precedent is rather exceptional…
Although due to the decentralization process of enforcement of EU competition law…
Also considering recent case law in connection with the MCR – but within a possible…
Other critical issues for establishing key traits of the existence of JVs may have…
It is clearly beyond the limited remit of this paper to cover and analyse in detail…
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