from an acquisition of control. As concerns the latter and given the relevance of the concept of control, the existence of a concentration is to a great extent determined by qualitative rather than quantitative criteria45. The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration. And the concept of “control” for these purposes is the effective possibility of exercising decisive influence on an undertaking, not being necessary to show that the decisive influence is or will be actually exercised. This possibility can exist on the basis of rights, contracts or any other means, either separately or in combination, and having regard to the considerations of fact and law involved. A concentration therefore may occur on a legal or a de facto basis, may take the form of sole or joint control, and extend to the whole or parts of one or more undertakings46. Both at EU level47 and in the Competition Act48 thresholds are established which fulfilment results in the mandatory filing of a concentration to the competent competition authority(ies), with a view to scrutinizing given reorganizations which may result in a lasting damage to competition. This is without prejudice to the positive stance by the EU towards company reorganizations which “are to be welcomed to the extent that they are in line with the requirements of dynamic competition and capable of increasing the competitiveness of European industry, improving the conditions of growth and raising the standard of living”49. It should be noted that, while at EU level the thresholds are based on the turnovers of the participating undertakings, the CA also comprises an alternative market share threshold. The lack of compliance with the mandatory filing and with the standstill condition concerning the implementation of the concentration constitute misdemeanours and result in the invalidity of the arrangements resulting in the concentration until the same is approved. The undertakings involved (including natural persons under the CA) may held liable and sanctions include the possibility of imposition of very heavy fines, reversal of the concentration and ancillary sanctions. It should be highlighted that the standstill conditions raise the convenience for undertakings involved to assess the lawfulness of their cooperation and notably the information exchanged before the completion of the transaction at stake as these may also constitute misdemeanours subject to sanctions. 45 See above note 44 and article 36 CA. 46 See above note 44 and article 36 CA. 47 See the EU Merger Regulation mentioned above in note 44. 48 Article 37 CA. 49 See the EU Merger Regulation mentioned above in note 44. 138 MARGARIDA ROSADO DA FONSECA
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