In Egypt, the company statutes might provide for proportionate board representation. In such a case, a minority shareholder who has sufficient shareholding can have the right to be on the board. If the board is five members and a minority shareholder has 20% of the target company, he is entitled to a seat on the board. If the company statutes do not have proportionate representation on the board, the majority shareholder may appoint 100% of the board. This may be useful to disallow shareholders with conflicting interests.
There are a variety of situations where a relatively small ownership can provide its owner with significant influence over a firm. This is particularly the case of fragmented ownership of the remaining shareholders.
The risk of minority shareholdings between competing firms additionally includes price fixing, cartels, and the exchange of sensitive information. Cartels are a viable risk. Competitors having a minority shareholding in the other party’s company fosters the possibility of colluding with that company going forward. Structural links between competitors facilitate cartels. The competing firms gain the ability to coordinate their products and set prices accordingly. Structural links also facilitate the exchange of confidential information, to be able to dominate the market. The exchange of information does not have to be two-sided in form of collusion. It can also be in form of using the accessible information to predict future business strategies of the target firm. To decide whether a specific minority shareholding can be considered anti-competitive, the EU Commission developed two cumulative criteria for determining whether a “competitively significant link” exits between the companies:
- There is a competitive relationship between the parties (either horizontal or vertical), and
- The competing party either:
– Has a shareholding of around 20%, or
– Has a shareholding between 5-20% accompanied by additional factors, such as a seat on the board of directors.
If a “competitively significant link” exits between the companies and one company has a decisive influence over its competitor, it is very likely that Article 101 of the Treaty on the Functioning of the European Union (“TFUE”) is breached. Article 101 of TFUE states that agreements and or concerted practices which cause prevention, restriction or distortion of competition are invalid within the EU. In the context of the tobacco industry, the European Court of Justice (“ECJ”) decided a case which is of relevance: Philip Morris acquired a non-controlling minority shareholding of 30.8% in Rothmans (from Rembrandt Group Ltd) and held 24.9% of the voting rights. The court held that the structural links resulting from the agreement between the companies “may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market which they carry on business”. The possibility of acquiring control of Rothmans International and the fact that the acquisition of the minority holding of shares is not simply a passive investment was sufficient for the ECJ to decide that the structural links resulting from the agreement between the companies are qualified to restrict or distort competition on the market, which infringed Article 101 of TFUE.
“European Commission: Economic Literature on Non-Controlling Minority Shareholdings (“Structural links”) (Brussels, 25.6.2013)”
Conditions to Enter the Tobacco Market in Egypt in Light of Competition Law:
Egypt plans to tender a license to produce traditional and electronic cigarettes. The hope is to break the monopoly of Eastern Company in the multi-billion cigarette industry. It allows more levelled access to the tobacco market in Egypt. But this level of access should conform to Law No.3 for the year 2005 on the Protection of Competition and the Prohibition of Monopolistic Practices (popularly referred to as the Egyptian Competition Law or “ECL”). The controversial terms are as follows:
- Eastern Company has the option to participate in the capital of the new company (“Newco”) at a rate of 24% without incurring any part of the cost of the license;
- The price of Newco’s products is higher than the selling price of the cigarettes produced by Eastern Company by at least 50% of the lowest product price of the Eastern Company.
- Production quota to be imposed on the Newco.
These conditions pose an industrial policy question that is relevant from the perspective of competition policy. Protection of National Champions is usually done to allow a domestic company to prosper. Yet, it should always be limited in scope and time and tied to certain goals and objectives. After giving the domestic company the chance to grow, the protection should be withdrawn. This is because protectionism is not an entitlement to the domestic company. It is a limited-time opportunity for it to grow. This protection usually comes at a high cost to both economic and social welfare. It comes at the cost of the Egyptian consumer if the product is not as competitively priced as it could. It comes at the cost of the government, if the price is competitively priced, but the company is not as efficient as it should be, and therefore reduces the potential additional tax revenues that the government could have collected.
From an ECL point of view, and if the standards of EU Law are applied by way of guidance, as well as previous precedents of the Egyptian Competition Authority a “competitively significant link” may exist between the companies that since:
- Eastern Company and Newco are both in a horizontal competitive relationship regarding the production and sale of cigarettes in the Egyptian market.
- Eastern Company is allowed to participate in 24% of Newco’s shares at a discount, and therefore effectively encouraging the creation of a “competitively significant link” with Newco.
- Additionally, Newco is contractually bound to sell cigarettes at a higher price by at least 50% of the lowest product price of Eastern Company, which puts it in a clear disadvantage, this reduces the competitiveness of the offer and therefore the competitiveness of the license value to the government.
- The higher price of Newco shall be at the expense of the Egyptian consumer. It shall also be at the cost of the competitiveness of Newco to penetrate international markets.
Consequently, this may afford Eastern Company a significant advantage that, even from an industrial policy standpoint, is not justified due to the length of Eastern Company monopoly. These conditions may be regarded as an infringement of Article 101 TFUE and others (likely Articles 4(3) TEU, 106 and 107 TFEU) if assessed by European standards, but they are also an infringement to Article 101 sister provision, namely Article 6 ECL. The ECA has previously assessed minority shares owned by one competitor in another context and decided that while the acquisition of a minority share may not always constitute a breach of the ECL, using these shares in order to access a competitor’s confidential information and affect its strategic decisions impacting its competitive position in the market, does breach Article 6 of the ECL. Similar to the facts of the case decided by the ECJ, the minority shareholding does not constitute a passive investment by Eastern Company but, in light of the super dominance of Eastern Company, will afford the latter control over Newco, which is not in accordance with ECL, specifically with Article 6 of the ECL. A recent decision by the Competition Market Authority (the UK competition Watchdog) has recently declared in a preliminary decision that the acquisition of Amazon of a minority share in the UK home delivery main market player Deliveroo is an infringement of the country’s competition rules before clearing the deal after the COVID-19 implications on delivery companies.
“Treaty on the Functioning of the European Union (“TFUE”)”
“Joined Cases 142/85 and 156/84 British American Tobacco Company Limited and RJ Reynolds Industries Inc v European Commission, 1987 ECR 4487 (Philip Morris, paras 37-38)”.