Minority shareholdings in a competitor company and antitrust risk: Contrasting perspectives

This risk can affect any company that acquires a stake in a potential competitor, including private equity firms and institutional investors, whether it is a traditional industrial company, a promising newcomer, or a start-up. Competition authorities around the world are becoming increasingly vigilant and have a variety of tools available to review the potential anti-competitive effects of acquisitions of stakes below merger control thresholds.

European Commission: Delivery Hero’s minority stake

In a decision handed down on June 2, 2025 (AT.40795), the European Commission imposed heavy fines on Delivery Hero and Glovo for violating antitrust law in the online meal delivery sector for several years. Delivery Hero acquired a 15% minority stake in 2018, which it increased to 37.4% at the end of 2021. In mid-2022, Delivery Hero finally took exclusive control of Glovo. The European Commission criticized Delivery Hero and Glovo for using the minority stake and the resulting partner position as a platform to coordinate their competitive behavior for several years.

In the reasons for its decision, the European Commission specified that a minority stake in a competitor does not in itself constitute a violation of European competition law. However, it established a clear link between the minority stake and the antitrust violations committed. The minority stake enabled the companies to coordinate at various levels, in violation of antitrust law. The European Commission based its decision primarily on the following behaviors:

Contractual provisions restricting competition

The shareholder agreement concluded in connection with the minority shareholding contained, among other things, a non-solicitation clause. This clause prohibited both companies from hiring employees from the other company. The European Commission clearly stated that such agreements restricting competition (such as non-solicitation or non-poaching agreements) are illegal, even in the case of a minority stake.

Minority shareholder with influence rights and a seat on the board of directors

The minority stake gave Delivery Hero a seat on Glovo’s board of directors and certain rights enabling it to influence Glovo’s decision-making processes and thus its business strategy, or to align them with its own strategy. In particular, the European Commission pointed out that documents containing strategic information from Glovo’s board meetings had been passed on to Delivery Hero’s management by the director appointed by Delivery Hero. In addition, Delivery Hero used its position as a minority shareholder to influence strategy in Glovo’s geographical area of activity in the European Economic Area. This ultimately resulted in an illegal market sharing between the companies.

Links at different levels of the company and exchange of information

The minority shareholding created links between employees at different levels and in different functions within the two companies. These links were supported and reinforced (also) at the highest level of both companies, as evidenced by numerous messages, phone calls, and other communications between the companies’ executives. This resulted in the exchange or unilateral disclosure of information on important competitive parameters, including current and future prices, production capacities, commercial strategies, cost structures and elements, and future sales forecasts.

In its decision, the European Commission specified that intra-group immunity does not apply to minority shareholdings without control. Nor did it justify recruitment bans, market sharing, and exchanges of information that restrict competition.

This decision is an illustration of the increased vigilance of competition authorities with regard to minority non-controlling shareholdings (which are therefore not subject to merger control) but which are likely to harm competition.

German Federal Cartel Office (Bundeskartellamt – “BKA”): minority stake held by Deutsche Post

Almost at the same time as the European Commission’s decision, the German Federal Cartel Office (Bundeskartellamt – “BKA”) closed administrative proceedings against Deutsche Post and the Max Ventures group. This case concerned a service provider in the field of mail consolidation (Compador Dienstleistungs GmbH). Max Ventures held 74% of the shares and Deutsche Post 26%. In connection with this shareholding, other contractual agreements were concluded between Deutsche Post and Max Ventures.

As both groups were active in Compador’s market segment, the BKA raised competition concerns. The potential competitive pressure exerted by Compador on Deutsche Post, which has a dominant position in the market, would be “naturally greatly reduced as long as Deutsche Post AG is linked to its main competitor, Max-Ventures.” After Deutsche sold its shares to the Max-Ventures group and the related agreements were terminated, the BKA closed the proceedings. Dissolving the interdependence was the appropriate measure to maintain open competition.

In its sector inquiries into rolled asphalt (2012) and cement and ready-mixed concrete (2017), the BKA had already criticized interdependencies between competitors, particularly in the context of joint ventures, suspecting the existence of restrictive effects on competition when at least two partners and the joint venture itself operated in the same relevant market in terms of products and geographical area.

France: Opinion of the Competition Authority of June 28, 2024

In this opinion on the competitive functioning of the generative artificial intelligence sector, the French Competition Authority (Autorité de la Concurrence, “AdlC”) stated that “minority shareholdings and partnerships by digital giants may raise competition concerns.” The AdlC first pointed out that these are not reprehensible in themselves, insofar as they can provide young innovative companies with the financial resources necessary for their development. However, the AdlC indicated that they can also weaken competitive intensity, lead to vertical effects, increase market transparency, or even lock out certain players. It thus pointed out that these transactions “may be assessed ex post from the perspective of anti-competitive practices law, on the basis of antitrust law or abuse of a dominant position (including collective dominance).”

For the record, in 2022, the AdlC considered for the first time that the acquisition of a non-controlling minority stake concurrent with the acquisition of exclusive control was likely to harm competition in connection with the acquisition of Bio Pôle Antilles by the Inovie group, and obtained a commitment from the latter to refrain from acquiring any minority stake in the capital of a competitor for 10 years as a condition for approving the acquisition of exclusive control of Bio Pôle Antilles.

United States: State of Texas v. Black Rock et al.

In the United States, the case of State of Texas v. Black Rock et al. (May 22, 2025) is the subject of public debate concerning antitrust violations in relation to minority shareholdings. In this case, three large investment companies are accused of using their minority shareholdings in competing companies to impose restrictions on competition, for example by encouraging their affiliates to reduce production. The proceedings are not yet complete, but they show that the issue may be particularly relevant for investment firms, asset managers, and private equity firms with multiple minority shareholdings in a market segment.

Implications for business practice

Minority shareholdings in competing companies are not prohibited per se. However, the fine imposed by the European Commission on Delivery Hero clearly shows that acquiring a minority shareholding in a current or potential competitor carries substantial risks under antitrust law.

Such minority shareholdings must be analyzed, structured, and monitored not only in light of merger control law, but also in light of antitrust law. This applies to both existing and future shareholdings. It is to be expected that international antitrust authorities will examine minority shareholdings and their effects on competition more closely in the future. Particular attention should be paid to the following aspects:

• First, examine what information circulates between the companies concerned and to what extent these information flows should be limited in order to minimize antitrust risks. This concerns both the legal rights to information of the minority shareholder and the information received by a member of the board of directors, as well as formal and informal agreements at all levels.
• Second, analyze the possibilities for the minority shareholder to influence the competitor’s strategic and competitive decisions, both legally and factually. Where appropriate, measures must be taken to prevent any coordination of behavior.

Precautionary measures are also recommended in cases of interdependence at the personnel level. Appointments to positions must not lead to the unlawful exchange of sensitive information, coordination of competitive behavior in the market, non-solicitation clauses, or other similar measures.

With its decision, the European Commission (as well as the AdlC in its aforementioned opinion) once again emphasizes the determination of antitrust authorities to combat non-poaching and non-hiring agreements between companies (“no poach or no hire”). Companies must incorporate this aspect into their antitrust compliance when conducting strategic analysis of minority share acquisitions.

It should also be noted that the authorities may also sanction majority acquisitions not subject to merger control (“killer acquisitions”) on the grounds of abuse of a dominant position if their purpose or effect is to eliminate a competitor (Competition Authority, Doctolib decision No. 25-D-06 of November 6, 2025, pursuant to the Towercast decision (CJEU, Case C-449/21, March 16, 2023).