Reuters’ report on the matter notes that UK and US antitrust regulators are also still in the preliminary stages of approval for the deal, with both the UK’s Competition and Markets Authority and the US Department of Justice and FTC thought to be considering their next steps in terms of formal reviews and probes.
Under EU law, a “concentration,” which would be subject to antitrust review, can take place when the change of control in one company is accomplished. This, according to the Consolidated Jurisdictional Notice, can be done by acquiring “sole control” of a company, in the sense of the controlling entity being able to exercise decisive influence over the other.
Sole control can also, however, be found to exist on a purely legal or factual basis, reflecting the myriad of board, stockholder and voting rights arrangements available to corporations doing business in the EU. A majority of voting rights, for example, could provide effective sole control, while a minority shareholder who is likely to succeed in achieving majorities at shareholders’ meetings could be found to be in de facto control.
UK and EU regulators had warned Microsoft in January that its investments in OpenAI could be subject to review despite the company’s insistence that its position on the board is non-voting and therefore that it had no ownership of OpenAI.
Microsoft declined to comment.
