ECJ: Competition authorities in the EU may take action against mergers even if they fall below notification thresholds (C-449/21, "Towercast")

On 16 March 2023, the ECJ confirmed the opinion of Advocate General Kokott: Competition authorities in the EU may intervene against mergers even if the transactions fall below notification thresholds (klick here). We had outlined the dispute and its impact on M&A practice when the Advocate General's opinion was published, see our article of 21 October 2022. Thus, for the planning of transactions, it should be noted:

1. As is common practice, it must be examined under all jurisdictions in which the transaction may have effects (1) if merger control thresholds are exceeded and (2) if, as a consequence of that, regulatory approvals must be obtained prior to completion.
2. Even in cases where merger control thresholds of the EU Member States' legal systems and those of the EU Merger Control Regulation (EUMR) are not exceeded, the European Commission may examine a transaction if one or more EU member states request the Commission to do so because, in the member state’s view, the concentration threatens to significantly impede competition, Article 22 EUMR. A merger that has not been implemented when the Commission accepts an Article 22 referral must be suspended on request of the Commission until its assessment has been completed. Transaction advisors therefore must not only check whether a transaction exceeds merger control thresholds but also whether it adversely affects competition in order to assess whether a request from EU member states to the Commission can be expected.
3. A transaction that does not exceed the EUMR filing thresholds and is neither subject to an Article 22 referral to the Commission nor to a merger control regime of an EU member state may nevertheless be taken up by the Commission or by member state competition authorities if a dominant company is involved in the concentration.

Prudent advice on transactions in the EU thus includes not only checking turnover thresholds, but also at least a rough assessment of whether the merger could give rise to competition concerns and whether it might subsequently be taken up by an antitrust authority in the EU.