Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 24.9.2020  
C(2020 ) 6737 final  
PUBLIC VERSION  
 
Ines Kaindl  
Seestrasse 18  
8702 Zollikon  
Switzerland  
Subject : Case M. 9741  – INES KAINDL/PETER KAINDL/M KAINDL  
Commission decision pursuant to Article 6(1)( a) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 20 August 2020 , the European Commission received notification of a proposed 
concentration pursuant to Article 4 of the Merger Regulation by which Ines Kaindl 
acquire s joint control over M. Kaindl OG (hereinafter: ‘M. Kaindl’ or ‘the Target’) by 
way of succession  from her deceased father Ernst Kaindl  (hereinafter  ‘the 
Transaction’) . The other controlling party in M. Kaindl is Peter Kaindl. Peter Kaindl  
and Ines Kaindl  are referred to hereinafter as the 'Parties '. 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation '). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union ( 'TFEU ') has introduced certain changes, such as the replacement of  
'Community ' by 'Union ' and 'common market ' by 'internal market '. The terminology of the TFEU will be 
used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement').  
In the published version of this decision, 
some information has been omitted pursuant 
to Article 17(2) of Council Regulation (EC) 
No 139/2004 concerning non -disclosure of 
business secrets and other  confidential 
information. The omissions are shown thus 
[…]. Where possible the information 
omitted has been replaced by ranges of 
figures or a general description.  
 
 
2 1. PROCEDURE  
(2) On 6 September 2019, Ines Kaindl  sent a letter to the services of the Directorate -
General for Competition (“DG COMP”), requesting a confirmation that the 
acquisition of joint control in M . Kaindl by Ines Kaindl does not constitute a 
concentration within the meaning of the Merger Regulati on.  
(3) On 24 September 2019, DG COMP provided Ines Kaindl with a comfort letter (the 
“First Comfort Letter”). In the First Comfort Letter, DG COMP informed Ines Kaindl 
that she did not seem to qualify as a person in control of an undertaking within the 
meani ng of Articl e 3 of Council Regulation (EC) 139/2004 (the “Merger Regulation”)  
and that therefore there is no obligation to notify the Transaction under the Merger 
Regulation . 
(4) On 23 December 2019, the Commission received a Case Team Allocation Request 
from Peter Kaindl for the Transaction.  
(5) By a letter dated 5 February 2020, Peter Kaindl asked DG COMP  to confirm that the 
conclusion reached in the First Comfort Letter was still valid taking into account 
certain new information.  
(6) On 1 April 2020, DG COMP  confirm ed its conclusion set out in the First Comfort 
Letter in a further comfort letter by taking into account  the submissions by Peter 
Kaindl , including the submissions  dated 13 February 2020, 18 February 2020 and 3 
March 2020, various documents annexed to thes e submissions , and in particular the 
opinions by the Professors Oberhammer, Graf and Schenker  (the “Second Comfort 
Letter”).  The Second Comfort Letter was addressed to Ines Kaindl and a copy sent to 
Peter Kaindl.  
(7) On 25 May 2020, Peter Kaindl informed the C ommission that he intended  submitting 
a notification of the Transaction notwithstanding DG COMP’s confirmation of its 
position in the Second Comfort Letter.  
(8) On 9 June 2020, Ines Kaindl also informed the Commission that she intended 
submitting  a notificatio n of the Transaction notwithstanding DG COMP’s position in 
the First and Second Comfort Letter.  
(9) On 13 July 2020, Ines Kaindl submitted a draft notification  of the Transaction  for 
informal consultation with DG COMP . 
(10) On 20 August 2020, Ines Kaindl notified the Transaction to the Commission.  
2. PETER KAINDL ’S SUBMISSION OF 17 SEPTEMBER 2020   
(11) On 7 September 2020, Ines Kaindl made the Commission aware of the fact that the  
German language version of the notice of prior notification of a concentration (the 
“Notice”) in the Official Journal of the European Union (“OJ”) incorrectly stated  that 
Ines Kaindl acquire s sole control of the Target.3 
                                                 
3  OJ No C 289, 1.09.2020, p. 7.  
 
 
3 (12) On 11 September 2020, the Commission published a corrigendum to the German 
language version of the Notice in the OJ.4 
(13) On 17 Septe mber 2020, Peter Kaindl made a submission5 in which he asked the 
Commission to correct the mistake in the (uncorrected) German language version of 
the Notice. He further asked the Commission to inform him about the effective date 
of the notification within  the meaning of Article 4(3) of the Merger Regulation, by 
making reference to Article 5(5) second sentence of Commission Regulation (EC) No. 
802/2004 implementing the Merger Regulation6 (“the Implementing Regulation”).  
2.1. Position of Peter Kaindl  
(14) Peter Kaindl  submits  that the mistake in the  (uncorrected)  German language version 
of the Notice in this case may have been caused  by misleading information provided 
by Ines Kaindl. Therefore the notification was incorrect and could only be effective 
once the mistake  had been corrected.  
(15) Peter Kaindl  further claims that even if the information from Ines Kaindl had not 
caused  the mistake in the German language version of the Notice, third parties would 
be deprived of their rights  to comment on the notified concentration,  if the 
Commission were to  consider  that the initial notification date was valid . 
2.2. Commission’s assessment  
(16) The Commission finds that Ines Kaindl provided sufficient  information for the 
Commission to be able to conclude that it does not have jurisdiction ove r the 
Transaction.  
(17) The Commission notes that the error in the German language version of the Notice of 
Publication was due to a translation error. Ines Kaindl notified an acquisition of joint 
control  over M . Kaindl , not of sole control.  
(18) Further, it can be  left open whether in the present case the  Commission was under duty 
to publish the Notice  under Article 4(3) of the M erger Regulation , which  requires a 
publication only when “ a notified concentration falls within the scope of this 
Regulation ”. In any event,  the translation error was corrected in the OJ as soon as it 
was noticed and sufficiently early to allow third parties to adapt their initial 
observations or to submit new adapted observations. In this regard, the initial 10 
calendar day dead line referred to by the Notices of Publication , in this case in the OJ 
of 1 September 2020 , was not affected by the corrigendum, which only changed the 
description of the nature of control. In any event, even after the publication of the 
corrigendum  on 11 September 2020 , third parties still had 10 calendar days to make 
their views known before the adoption of the decision on 25 September 2020.  
(19) In conclusion, the Commission finds that third parties’ rights were not infringed by 
the publication of the incorrect German language version of the Notice of Publication 
in this case on 1 September 2020.  
                                                 
4  OJ No C 301 , 11.09.2020, p . 22. 
5  Peter Kaindl’s respon se to RFI 5 dated 17 September 2020.  
6  OJ No. , L 133, 30 .04.2004 , p. 1.  
 
 
4 3. THE PARTIES  TO THE TRANSACTION AND  OTHER  PARTIES  
(20) The Transaction involves several members of the Kaindl family and three wood 
processing undertakings controlle d by different members of the family.  
(21) The main family members involved are Ernst Kaindl  (deceased on 11 April 2017) 
and his daughter Ines Kaindl  as well as the brother of Ernst Kaindl Martin Matthias 
Kaindl  (deceased on 21 August 2019) and his son Peter Ka indl. 
(22) M. Kaindl  is an Austrian  company and a  wood processing and manufacturing 
undertaking. M. Kaindl  produces wood -based materials such as raw and coated 
particle board, medium density board and high -density board, laminate flooring, and 
decorative lamina te.7  
(23) M. Kaindl  was in the past j ointly controlled by its two general partners, the brothers 
Ernst Kaindl and Ma rtin Matthias Kaindl . In 1984, the shares in M. Kaindl  were 
redistributed among the two general partners and continued to be jointly controlled by 
them . The brothers each  held 40% of the shares and each 50% of the voting rights . 
The remaining 20% of the shares were held by Peter Kaindl . 
(24) In 2018, Martin Matthias Kaindl, who died on 21 August 2019, gifted his share s in M. 
Kaindl to Peter Kaindl. According to Peter Kaindl, he became an unlimited partner as 
a result of this donation. Ines Kaindl submits that, h owever, to this day, Peter Kaindl 
is still registered as a limited partner of M. Kaindl. Martin Matthias Kaindl’s death has 
not been recorded in  the commercial register yet. The dispute concerning the approval 
to change the entry in the commercial register is currently subject to litigation at the 
Salzburg Regional Court (Case 8 Cg 64/19h) due to doubts concerning the effective 
transfer of the sha res to Peter Kaindl.  
(25) In parallel with their respect ive shareholding in M. Kaindl , Ernst Kaindl controlled 
SWISS KRONO  Group  and Martin Matthias Kaindl controlled Kronospan  Group 
(‘Kronospan’) .  
(26) SWISS KRONO  Group  is active in  wood processing and manufacturi ng with a 
turnover of approximately EUR […] worldwide in the last completed business year.  
It is active in the same markets for wood -based materials as M. Kaindl and, in addition, 
produces oriented strand board.   
(27) Ines Kaindl  became a member of the board of  directors of SWISS KRONO  Holding 
AG (‘SWISS KRONO’), the Swiss -based ultimate parent company of the SWISS 
KRONO Group  in 200 6. Since 20 09 until today, Ines Kaindl holds the position of the 
chairperson of this board.  Until his death, it was however Ernst K aindl who held […]% 
of the shares in SWISS KRONO.  
(28) At the time of Ernst Ka indl’s death, Ines Kaindl held  a […] % share in SWISS 
KRONO  In addition,  she holds 11 % of the shares in a startup firm. There are no veto 
or other controlling rights attached to this  participation. Ines Kaindl also holds the 
majority of shares in the asset management company […]. The purpose of this asset 
management company is to hold one apartment property in […]. It does not offer 
goods or services on a ny product or service  market . 
                                                 
7  M. Ka indl does not produce oriented strand board.  
 
 
5 (29) Kronospan  is headquartered in Czech ia. It is also active in the same markets for 
wood -based materials. In addition, Kronospan produces oriented strand board. Peter 
Kaindl has shares in Kronospan.8 
4. THE OPERATION  
(30) According to the testament of Ernst Kaindl, I nes Kaindl inherits […]% of Ernst 
Kaindl’s  possessions and the remaining […]% are inherited by his wife Christiana 
Kaindl. In relation to SWISS KRONO , Ernst Kaindl left […]% of the voting shares to 
Ines Kaindl and […]% of the voting shares to Christiana Kaindl as a legacy  (Legat ). 
Furthermore, Ernst Kaindl left his shares in M. Kaindl (40 % of the total shares and 
50 % of the voting rights) to his daughter Ines Kaindl as a legacy.  
(31) Since Ernst Kaindl’s death, the shares in the two undertakings were  under estate 
administration by Dr. Urs Mühlebach. The ultimate purpose of the estate 
administration by Dr. Urs Mühlebach was the execution of Ernst Kaindl’s testament . 
The transfer of the M. Kaindl shares from the estate  administrator  Dr. Urs Mühlebach 
to the le gatee  Ines Kaindl took place on 1 November 2019.9  
5. THE CONCENTRATION  
(32) Article 3(1) EUMR states that a concentration arises where a change of control on a 
lasting basis results from the merger of at least two undertakings or an acquisition of 
control by one or more persons already controlling at least one undertaking or by one 
or more undertakings, whether by purchase of securities or assets, by contract or by 
any other means, of direct or indirect control of the whole or parts of one or more other 
undertakin gs. 
5.1. Acquisition, by one or more persons already controlling at least one undertaking, 
or by one or more undertakings  
(33) It has to be determined whether Ines Kaindl on the relevant  date for establishing the 
Commission’s jurisdiction was a person already controlling at least one undertaking  
with economic activity or a natural person carrying out economic activities in her own 
account . 
5.1.1.  Views of the Parties  
5.1.1.1.  Position of Ines Kaindl  
(34) According to Ines Kaindl, she acquired the late Ernst Kaindl’s shares in M. Ka indl as 
well as his shares in SWISS KRONO by legacy ( Legat ) based on the testamentary 
disposition of Ernst Kaindl. Under Austrian law, t he testator can bequeath ( vermachen  
or Vermächtnis ) parts of the inheritance to a legatee ( Legatar ). The legatee acquire s 
the legacy ( Legatsausfolgung ) by way of singular succession ( Einzelrechtsnachfolg e) 
and the legacy is then not part of the estate anymore. The transfer from the trustee of 
                                                 
8  Submission of Peter Kaindl in response to RFI 1 dated 7 September 2020.  
9  See Form CO, Annex 7. Ines Kaindl has explain ed this delay to  the Commission by reference to litigation 
in Austrian courts.  
 
 
6 the estate to the legatee (in this case from Dr. Urs Mühlebach to Ines Kaindl ) took 
place by declaration of transfer ( Übertragungserklärung ) on 1 November 2019 .  
(35) Ines Kaindl is therefore of the view that in this case she acquired the shares of and, 
therefore, joint control in M. Kaindl  by way of a declaration of transfer from the trustee 
Dr. Urs Mühlebach on 1 November 2019 . According to her, she also acquired sole 
control over SWISS KRONO on 1 November 2019  by way of a  declaration of transfer 
from Dr. Urs Mühlebach to Ines Kaindl o f 1 November 2019, in conjunction with the 
circular resolution of the board of directors of SWISS KRONO of the same day . At 
that moment she was according to her not an undertaking or a person controlling at 
least one undertaking within the meaning of Articl e 3(1)(b) of the Merger Regulation. 
Ultimately Ines Kaindl emphasises that  there was therefore no notifiable 
concentration . 
5.1.1.2.  Position of Peter Kaindl  
(36) Relying on the legal opinions of three university professors, Peter Kaindl  takes the 
view that Ines Kaindl acquired ownership over the […]% shareholding  in SWISS 
KRONO and , therefore,  de jure  control over this undertaking  already before the 
transf er of the shares in M. Kaindl . According to the legal opinions , this reflects certain 
differences between the nation al laws governing the succession  in Austria and 
Switzerland, where the two undertakings’ parent companies are registered .10  
(37) According to the submission by Peter Kaindl, all material elements of the succession 
would be governed by Austrian law (the so -calle d Erbstatut ). This would follow from 
the explicit choice in the last will of Ernst Kaindl. Generally, the rules governing the 
procedural questions of the actual asset transfer (the so -called Eröffnungsstatut ) 
would, in such case, according to Austrian Inte rnational private law, also be governed 
by Austrian law.11 
(38) However, according to one of the legal opinions annexed to the submission by Peter 
Kaindl, Austrian courts would not have jurisdiction to take a decision about the 
transfer of shares in a company th at is listed in Switzerland. The legal opinion by Prof. 
Paul Oberhammer discusses possible solutions to this problems in several pages before 
co0ncluding that the most convincing approach would be to adopt an “assets before 
heritage” ( Einzelstatut geht vor  Gesamtstatut ) principle and apply Swiss law for the 
actual transfer of the shares in SWISS KRONO to Ines Kaindl.12 
(39) A difference between Austrian and Swiss law would be that under Austrian law, an 
heir or legatee would only acquire ownership over assets of the deceased by way of a 
formal act, the devolution ( Einantwortung ). In Switzerland, to the contrary, there 
would be no such act and ownership would transfer immediately following the death 
of the deceased.13 
(40) The legal opinions of Prof. Paul Oberhammer and Prof. Georg Graf both conclude that 
a Swiss authority cannot be expected to perform a formal act that is unknown in their 
                                                 
10  Peter Kaindl’s response to RFI 1, question 6 dated 7 September 2020 , and three legal opinions submitted 
by Peter Kaindl on 13 February 2020.  
11  Case team allocation request in M.9741 by Peter Kaindl dated 23 December 2019.  
12  Legal opinion of Professor Oberhamme r, submitted by Peter Kaindl on 13 February 2020.  
13  Legal opinion of Professor Oberhammer, submitted by Peter Kaindl on 13 February 2020.  
 
 
7 own legal system.14 According to Prof. Paul Oberhammer, a letter sent to Ines Kaindl 
by the Swiss authority would show that the authori ty did not intend to transfer the 
shares of SWISS KRONO  by way of a devolution.15 
(41) Both opinions conclude that , despite different views in the legal literature on the 
applic ation of the  inheritance statute under international private law , Ines Kaindl  
already  acquired joint ownership,  together with Christiana Kaindl, over all the shares 
in SWISS KRONO at the time of Ernst Kaindl’s death. The transfer of shares by Dr. 
Mühlebach on 1 November 2019 would have only terminated the joint ownership and 
resulted in sole ownership  of Ines Kaindl over […]% of the shares in SWISS KRONO.   
(42) Further, Peter Kaindl claims that Ines Kaindl already acquired de facto  control over 
SWISS KRONO before the death of Ernst Kaindl  by means of her appointment as a  
chairwoman  (in 2009)  and as heir/ legatee  (in 2012) .16 
(43) Another  point in time for which Peter Kaindl claims that Ines Kaindl acquired de facto  
control over SWISS KRONO is 2013 when Ernst Kaindl suffered from a stroke and a 
subsequent deterioration of his health. Peter Kaindl assert s that as of that event, Ernst 
Kaindl would have had no more contacts with any employees of SWISS KRONO  
Group , while  the management only reported to Ines Kaindl. Peter Kaindl submitted a 
statement from a former manager of SWISS KRONO  Group  according to which Ines 
Kaindl acted as if she was the owner of SWISS KRONO and took all significant 
decisions by herself as of early 2014 , at the very latest .17 
(44) Peter Kaindl therefore considers that Ines Kaindl acquired joint control in M. Kaindl 
at a mom ent in time when she already controlled another undertaking.  He considers 
therefore that the acquisition of joint control in M. Kaindl is a notifiable concentration .  
5.1.2.  The Commission’s assessment  
(45) The Commission finds  that the Transaction does not constitut e a notifiable 
concentration within the meaning of Article 3(1)(b) of the Merger Regulation because , 
on the relevant date for assessing jurisdiction in situations of  acquisition of control by 
succession, i.e. the moment of the death of the testator, Ines K aindl did not control an 
undertaking.18 
(46) Firstly, t he Commission  finds that as a matter of law the relevant date for assess ing its 
jurisdiction in a case of an acquisition by means of succession  for the purposes of 
Article 3(1)(b) of the Merger Regulation  is the moment of the death of the testator  (see 
below Section 5.1.2.1.) . Secondly , it finds  as a matter of fact  that Ines Kaindl  did not  
already cont rol at least one undertaking  on the relevant date, i.e. that of the death of 
her father Ernst Kaindl  (see Section 5.1.2.2 ). Thirdly  and in any event , irrespective of 
the relevant date for establishing the Commission’s jurisdiction, the acquisitions of 
                                                 
14  Legal opinions of Professor Graf and Professor Oberhammer, submitted by Peter Kaindl on 13 February 
2020.  
15  Legal opinion of Professor Oberhammer, submitted by Peter Kaindl on 13 February 2020  
16  Peter Kaindl’s response to RFI 1, question 6, dated 7 September 2020.  
17  Peter Kaindl’s response to RFI 1, question 6, dated 7 September 2020.  
18  The Commission notes t hat in its substantive assessment for the purposes of this decision, it does  not find 
it necessary to distinguish between the concepts of testament and legacy , as both the testament as a whole 
as well as the two legacies pursue  the same economic aim of tra nsferring the two undertakings to Ines 
Kaindl . 
 
 
8 control over M . Kaind l and SWISS KRONO should  be qualified as forming part of a 
single concentration  under Article 3 of the Merger Regulation because of their unitary 
nature (see Section 5.1.2.3).  
5.1.2.1.  The r elevant  date for establish ing the Commission’s  jurisdiction in case of an 
acquisition by means of succession  is the moment of the  death of the testator  
(47) The Transaction concerns an acquisition of control by way of succession  and thus, by 
“other means ” within the meaning of Article 3(1)(b) of the Merger  Regulation.  
(48) Article 3(1)(b)  of the Merger Regulation appl ies to  acquisition s of control by an 
undertaking or by a person controlling at least one undertaking on the relevant date 
for establishing the Commission’s jurisdiction .  
(49) The Commission has in its d ecisional practice not yet considered or established the 
relevant date for determining whether an acquirer already control s “at least one 
undertaking ” or is an “ undertaking ” in case of an acquisition of control through 
succession.  
(50) Neither  the Merger Regula tion nor the Commission Consolidated Jurisdictional 
Notice on the control of concentrations between undertakings  (“Jurisdictional 
Notice”)19 provide explicit guidance as to the relevant date for determining whether 
an acquirer already controls “at least one  undertaking” or is itself an “undertaking” in 
the situation  of an acquisition of control by succession.  The Commis sion notes that 
the Jurisdictional Notice , in Paragraphs 1 54 to 156 establishe s the relevant date for 
determining the Commission’s jurisdiction for several types of acquisition of control 
(e.g. conclusion of the binding legal agreement, the announcement of a public bid or 
the acquisition of a controlling interest  or the date of the first notification, whichever 
date is earlier ). It does not explicitly address the situation of acquisition of control by 
means of succession.  However, the list at Paragraph 156 of the Jurisdictional Notice  
is not exhaustive.  
(51) In this regard, the  Commission notes that Paragrap hs 154 -156 of the Jurisdictional 
Notice refer to the concept of “ triggering event ”, which materialises when the 
undertakings concerned demonstrate a sufficiently concrete plan for the proposed 
concentration .20 In the context  of an acquisition by means of  succession, the  
Commission finds that it is necessary  to establish the triggering event by reference to 
the date of the testator’s death , which cannot be known in advance . Indeed, t he death 
of the testator is the  natural  “triggering event ” in cases of succession .  
(52) The Commission considers that it is essential in light of the principle of legal certainty , 
the functioning and coherence of merger control  and in order to ensure the uniform 
application of the Merger Regulation in cases of acquis ition by means of succession 
that economic actors such as the Parties can easily and with  legal certainty at the 
moment of the notification assess the relevant date for establishing the Commission’s 
jurisdiction.  This is the case if  the date of the testat or’s death  is taken as the relevant 
date.  
                                                 
19  OJ No. C 95, 16.4.2008, p. 1.  
20  Recital 34 of the Merger Regulation . 
 
 
9 (53) Moreover, this date can be established independently from different applicable laws.21 
Compared  to dates  after the death of the testator when the heir(s) effectively receive 
the shares in a corporate entity under the different applicable national laws , the 
Commission finds that  only the date of the death of the testator can be assessed with 
sufficient  ease a nd certainty , which is essential  in light of the principle of legal 
certainty, the functioning and coherence of merger control  and in order to ensure the 
uniform application of the Merger Regulation , at least in cases in which the testator 
did not attach a ny suspensive conditions  to his legacy . 
(54) The Commission notes that the Commission’s jurisdiction would be dependent on 
varying national laws, and events potentially taking place after notification, if the 
relevant date depend ed on an event after the death s uch as for example the acquisition 
of shares as defined by national law. This would jeopardise  the uniform application of 
the Merger Regulation  
(55) In this regard, t he two legal opinions submitted by Peter Kaindl and dealing with the 
determination of the appro priate regime for the transfer of the shares in SWISS 
KRONO explicitly acknowledge  that the  question of the  applicable national law is 
disputed in the legal literature . The legal literature cited in the opinions seem to discuss 
different solutions to addre ss the fact that Swiss law (same as German law) would not 
know a legal act that is central to acquiring ownership as an heir/ legatee under 
Austrian law.  
(56) These findings are also supported by the rationale for  the establ ished choice of the  
relevant date for the acquisition of control by contract or public bid as laid down in 
Paragraph 154 et seq. of the Jurisdictional Notice  (i.e. the conclusion of the binding 
legal agreement in case of acquisition by means of purchase of shares or the 
anno uncement of the public bid in case of acquisition through public bid ).  In both 
situations the relevant date can be determined with legal certainty, can easily be 
ascertained at the moment of the notification and in line with the ex ante  control logic 
of the Merger Regulation, occurs before the actual acquisition of control.  
(57) The relevant date laid down in the Jurisdictional Notice further show that the relevant 
date for establishing the Commission’s jurisdiction over a concentration can be before 
the actual  acquis ition of the shares in a company , such as in case s of the conclusion of 
the purchase agreement or the announcement of the public bid.   
(58) For these reasons, the Commission finds that for acquisitions of control by succession , 
the relevant date under Ar ticle 3(1)(b) for assessing whether the acquisition of control 
is by an undertaking or a person already controlling an undertaking is the  moment of 
the death of the testator . 
(59) Thus, in the present case, the relevant date for assessing the Commission’s juris diction 
in relation to the inheritance is the date of the death of E rnst Kaindl  on 11 April 2017.  
5.1.2.2.  Ines Kaindl was no t an undertaking  or a person controlling an undertaking  on the 
relevant date of the death of her father  Ernst Kaindl  
(60) Having established that the relevant date for determining the Commission’s 
jurisdiction is that of the death of the testator, and thus, in the present case the date of 
                                                 
21  The national law may also allow for the retroactive transfer of the shares . 
 
 
10 the death of Ernst Kaindl, namely 11 April 2017, it has to further be determined 
whether , as a matter of fact , Ines Kaindl already cont rolled at least one undertaking on 
11 April 2017 . Ines Kaindl is a natural person and not an undertaking herself , nor does 
she carry out economic activities in her own account.  
(61) The Commission finds that Ines K aindl did neither have de jur e (see below Section  
(A)) nor de facto  control (see below Section (B)) over at least one undertaking on the 
relevant date of the death of her father on 11 April 2017.  
(A) Ines Kaindl did not have de jure  control over any other unde rtaking with 
economic activity before the death of Ernst Kaindl  
(62) According to established case law, a n undertaking within the meaning of EU 
Competition Law is “any entity engaged in an economic activity, regardless of its 
legal status and the way in which i t is financed .”22 Economic activity means “ offering 
goods or services on the market which, at least in principle, could be carried on by a 
private undertaking in order to make profits .”23 
(63) Both M. Kaindl and SWISS KRONO were  under the de jure  joint and sole control 
respectively of Ernst Kaindl until his death. Only following his death, control over 
both companies would, according to Ernst Kaindl’s last will, be transferred to Ines 
Kaindl.  
(64) On the date of the death of Ernst Kaindl, the only entity over which I nes Kaindl had 
de jure  control was the asset management company […]. Since 2007, Ines Kaindl 
holds all shares  in […]. She is the sole shareholder and therefore has sole control of 
[…]. […]’s sole purpose is to hold a 3 ½ room apartment in a condominium pro perty 
in […], which is used exclusively by Ines Kaindl and her family for private purposes. 
[…] is therefore not an undertaking that is engaged in an economic activity, offering 
goods and services on the market.  
(65) Therefore, o n the d ate of the death of Ernst  Kaindl, Ines Kaindl did not have  de jure 
control  over any  undertaking  within the meaning of the Merger Regulation.  
(B) Ines Kaindl  did not have de facto  control over SWISS KRONO before the 
death of Ernst Kaindl  
(66) Further, the Commission finds that Ines Kaindl  did not exercise de jure  control over 
an undertaking on the relevant date of the death of her father Ernst Kaindl . 
(67) The Commission finds that Ines Kaindl did not acquire  de facto control over the 
company SWISS KRONO prior to 11 April 2017 on the dates brou ght forwared by 
Peter Kaindl (see above Section 4.1.2), namely in 2009 following her appointment as 
chairwomen of SWISS KRONO (see Section (B.i.) below), in 2012 following her 
naming as the heir and legatee (see Section (B.ii) below), and in 2013 following  the 
deterioration of Ernst Kaindl’s health  (see Section (B.iii) below) . 
                                                 
22  See European Court of Justice, Case C -41/90, Höfner  and Elser , ECLI: EU:C:1991: 161, para. 21. 
23  See European Court of Justice, Case C -475/99, Ambulanz Glöckner , ECLI:  EU:C:2001:577, para. 19; Case 
C- 49/07, MOTOE, ECLI:EU:C:2008:376, paras. 21 et seq. and Advocate General Jacobs, Opinion in Case 
C-67/96, A lbany, ECLI: EU:C:1999:28, para. 311.  
 
 
11 (68) The Commission notes in this regard that i n the present case, as well as in any cases 
involving a succession, all transfers should only take place once the testator died. By 
including  the assets in his last will, Ernst Kaindl has made clear that he did not want 
to transfer the shares in either company , including SWISS KRONO  during his 
lifetime.  
(B.i) 2009 following the appointment as chairwomen of SWISS KRONO  
(69) In 2009, Ines Kaindl  was appointed chairwomen of SWISS KRONO.  
(70) According to Article 3(2) M erger Regulation , control is constituted by “ rights, 
contracts or any other means which, either separately or in combination […] confer 
the possibility of exercising decisive influence on  an undertaking ”. Examples 
mentioned are ownership or decisive influence on the composition, voting or decisions 
of the organs of an undertaking.  
(71) The Commission notes that a  chairperson of a board of directors can have significant 
influence on an undertaki ng. However, irrespective of the exact composition of such 
board and the statutes of the undertaking, the position as a chairperson of the board of 
directors can be terminated. Furthermore, the chairperson does not decide on their own 
but rather as a membe r of the board (even taking potential rights as chair into account). 
Most importantly, any organ of an undertaking is to be considered as part of such 
undertaking. Even if an undertaking has only one managing director, such director 
would not exercise cont rol despite being able to take all decisions within the 
undertaking by himself because as a managing director he is part of the undertaking 
(obviously, the same person could nonetheless control the undertaking if he holds 
other rights that confer control on him).  
(72) Specifically looking at SWISS KRONO, the corporate governance structure of the 
company implements a unitary board structure. The General Meeting of the 
shareholders is the supreme organ and appoints the Board of Directors. According to 
the articles  of association, the Board of Directors names a chairperson. This person 
presides over the General Meetings but has no particular voting rights (e.g., no casting 
vote). In meetings of the Board of Directors, the chairperson has a casting vote. Until 
the de ath of Ernst Kaindl, the Board of Directors had four members. Among these 
members were Ernst Kaindl and Ines Kaindl. Following his death, the Board of 
Directors consisted of three members.  
(73) In a structure such as SWISS KRONO, control is exercised in the Gen eral Meeting. A 
majority in the General Meeting can appoint the members of the Board of Directors. 
Neither the Board of Directors nor the chairperson of the board exercise control of 
SWISS KRONO. This holds true regardless of the level of scrutiny a contro lling 
shareholder exercises over the company.  
(74) The situation in this case is different from a situation in which a person exercises de 
facto  control because of their decisive influence on the company. As chairwoman of 
SWISS KRONO, Ines Kaindl was naturally  in charge of all affairs of the company. 
However, this was based on her role as chairwoman, not as shareholder. Any other 
conclusion would mean that managing directors or chairpersons could potentially 
 
 
12 control the respective undertaking if the shareholder s trust in them and do not actively 
exercise their control rights.24 
(75) For these reasons, the Commission finds that Ines Kaindl did not acquire de facto  
control over SWISS KRONO in 2009  when she was appointed as chairwoman.  
(B.ii) 2012 following the drafting of Ernst Kaindl’s will  
(76) On 29 August 2012 , Ernst Kaindl drafted the first version of his will and amended it 
at multiple points thereafter (last known amendment 5 October 2016).  Ines Kaindl was 
ultimately designated to inherit […]% of the votin g shares in SWISS KRONO, 
however it is unknown when this was first included in Ernst Kaindl’s will.  
(77) The Commission considers that f rom a legal perspective, naming Ines Kaindl as 
heir/legatee for the shares in SWISS KRONO does not change its above  assessmen t 
in relation to her appointment as chairwoman  (see Section (B.i) above) . The position 
as heir/legatee does not confer any rights in itself during the lifetime of the testator.  
(78) Therefore,  the Commission  finds that  Ines Kaindl did not acquire de facto  contr ol over 
SWISS KRONO when she was named as heir/legatee in a testament by Ernst Kaindl  
in or after 2012 . 
(B.iii)  2013 following a deterioration of Ernst Kaindl’s health  
(79) According to the submissions of Peter Kaindl, Ernst Kaindl had health issues from 
2013 onwards which lead to Ines Kaindl representing Ernst Kaindl as owner in all 
practical aspects vis -à-vis the company  (such as decisions on investments, important 
discussions with customers and suppliers, opening of new factories and hiring/firing 
of senior staff) , in addition to her position as chairwoman.  
(80) The Commission considers that even if Ines Kaindl represented Ernst Kaindl in all 
practical aspects , this position would still be derived from the legal position of Ernst 
Kaindl as owner of SWISS KRONO. As set out  in Paragraph 13 of the Commission’s 
Jurisdictional Notice , control is normally acquired by the persons or undertakings , 
which are the holders of the respective rights. In case of ownership, that means the 
owner.  Despite the submissions made by Peter Kaind l on the subject of Ernst Kaindl’s 
deteriorating health and Ines Kaindl’s consequent role , Ines Kaindl did in any case not 
have control over SWISS KRONO at this stage.  
(81) Therefore, the Commission finds that Ernst Kaindl still had  sole control over SWISS 
KRONO despite the descri bed deterioration of his health until the moment of his death 
on 11 April 2017. Ines Kaindl did not have de facto control over SWISS KRONO 
prior to his death and thus on the relevant date for establishing wh ether she had control 
over an undertaking for the purposes of the Merger Regulation.  
                                                 
24  This reasoning is consistent with the Commission decisional practice on management buy -outs: managers 
can only be notifying parties if they alrea dy control another undertaking .   
 
 
13 (B.iv)  Conclusion in relation to de facto control over SWISS KRONO prior to Ernst 
Kaindl’s death  
(82) In conclusion, t he Commission finds  that Ines Kaindl did not have  de facto  contro l 
over SWISS KRONO or any other undertaking within the meaning of the Merger 
Regulation on the relevant date of the death of her father Ernst Kaindl.  
5.1.2.3.  The acquisitions of control over M. Kaind l and SWISS KRONO form part of a single 
concentration  under Artic le 3 of the Merger Regulation because of their unitary 
nature  
(83) In any case, even if the relevant date for establishing the Commission’s jurisdiction 
was not the moment of the death of the testator, the acquisitions of control over the 
two undertakings  M. Kaindl and  SWISS KRONO are unitary in nature  and, therefore 
form part of a single concentration under Article 3 of the Merger Regulation. 
Therefore, their acquisition has to be assessed together . 
(84) The two acquisitions are unitary in nature according to the “economic pl an” of Ernst 
Kaindl. In the specific situation of acquisition of control by succession, in the absence 
of a contract between the testator and the heir or legatee, the plan envisaged  by the 
testator , evidenced by the terms of his will,  is the relevant factor. Ernst Kaindl’s  will 
envisaged  that Ines Kaindl obtains control of the two undertakings without any 
indications of E rnst Kaindl  planning that Ines Kaindl should acquire  control at 
different points in time. This is consistent with th e fact that Ernst Kaindl’s will was 
that Ines Kaindl, as his daughter, fully replaces him as the person having  joint control 
(M. Kaindl) and sole control (SWISS KRONO)  in both undertakings . Conversely, 
Ernst Kaindl  did not foresee that Ines Kaindl would ob tain control in only one of the 
undertakings . 25   
(85) The economic reality of the Transaction is therefore that Ines Kaindl succeeds her 
father in his position, in accordance with the terms of  her father’s will. It would be 
artificial to look at the inheritanc e of the shares conferring sole control over SWISS 
KRONO and those conferring  joint control over M. Kaindl  separately.  
5.2. Conclusion with regard to a concentration within the meaning  of Article 3(1)(b) 
of the EUMR  
(86) In conclusion, t he Commission finds that on the date of the death of Ernst Kaindl on 
11 April 2017, Ines Kaindl did in fact not have control over any other undertaking  
with economic activity, nor was she  a natural person carrying out further economic 
activities in her own  account .  
(87) Therefore, t he Transaction does not constitute  a concentration withi n the meaning of 
Article 3(1)  of the Merger Regulation.  
  
                                                 
25  There was no indication that Ines  Kaindl would not accept the testament or legacy . 
 
 
14  
6. CONCLUSION  
(88) For the above reasons, the European Commission has concluded that the notified 
operation does not constitut e a concentration within the meaning of Article 3 of the 
Merger Regulation  and consequently does not fall within the scope of that Regulation. 
This decision is adopted in application of Article 6(1)( a) of the Merger Regulation and 
Article 57 of the EEA Agr eement . 
For the Commission  
 
 
(Signed)  
Margrethe  VESTAGER  
Executive  Vice-President