Merger control update

Posted - 10.07.2023

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Now reading : Merger control update

At EU level, the EU Commission has published rules and guidance to further reduce the administrative burden for parties with respect to the merger control process. An interesting judgment by the Court of Justice of the European Union ("CJEU") confirmed Member States' powers to address concentrations a posteriori under the rules on abuse of dominance, whether or not a national merger control regime exists. At Luxembourg level, the Competition Authority recently communicated about its decision to join a request for referral of a merger below the EU and national merger control thresholds to the Commission for review. Finally, the submission to Parliament of a bill introducing a merger control regime in Luxembourg is expected this July.

Simplification of EU merger control procedure

To reduce the administrative burden for merging parties, the EU Commission adopted on 5 May 2023 a package of texts to further simplify procedures for reviewing concentrations under the EU Merger Regulation. As a result, the scope of the simplified procedure for the review of mergers that are unproblematic from a competition point of view, the so-called simplified cases, is widened and the notification process is made easier for both simplified and non-simplified cases. The package includes: (i) a revised Merger Implementing Regulation, entering into force on 1 September 2023, (ii) a Notice on Simplified Procedure, and (iii) a Communication on the transmission of documents. For the Luxembourg Competition Authority's communication on the matter, please read here.

CJEU Judgment in Case C-449/21, Towercast

In a judgment of 16 March 2023 in Case C-449/21, Towercast, the CJEU ruled that a national competition authority may review ex post, under Article 102 TFEU prohibiting the abuse of a dominant position, a merger carried out by an undertaking in a dominant position where that merger is below the turnover thresholds required for the application of the prior merger control arrangements provided for in EU and national merger law. Although rendered in the context of a French merger case below the thresholds of French merger control rules, the judgment confirms the decision practice by the Luxembourg Competition Authority as to its competence to review a merger ex post on the basis of the abuse of dominance rules in the absence of a national merger control system. For the authoritys' analysis on the importance of the judgment, please read here.

Luxembourg Competition Authority joins merger referral request

On 30 January 2023, the Competition Authority joined for the first time a referral request by other 15 Member State competition authorities in accordance with Article 22 of the EU Merger Regulation ("EUMR") for the Commission to review the proposed acquisition by Adobe of Figma, a merger which falls below EU and Member State notification thresholds. The joint referral request is inspired by the concern that the acquisition of Figma by Adobe could lead to a reduction of competition in certain niche technology markets. See the authority's communication here.

Introduction of a merger control regime in Luxembourg

At a conference organised jointly by the Luxembourg Chamber of Commerce and the Association luxembourgeoise pour l'étude du droit de la concurrence ("ALEDC") on 14 June 2023, a representative of the Luxembourg Ministry of the Economy confirmed that the submission to Parliament of a bill purporting to introduce a merger control regime in Luxembourg is scheduled for July 2023. A mandatory notification regime would be proposed.

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