Members of the Brussels competition team have written their annual chapter as a contribution to the latest edition of the highly-regarded Global Competition Review (GCR) EMEA Antitrust Review, which provides a comprehensive summary of key recent EU merger control developments.
This year's chapter is titled European Union: M&A slowdown coincides with the new regulations and substantive revisions to merger control procedures and covers key jurisdictional, procedural and substantive developments in EU merger control from May 2022 to April 2023, including:
- Jurisdictional developments: Review of below-threshold transactions by the Commission remained an area of debate primarily due to the CJEU's decision in Towercast. The CJEU held that below-threshold transactions can be reviewed by national competition authorities under the rules prohibiting the abuse of a dominant position following the completion of the transaction. Subsequently, the Belgian Competition Authority initiated a review of a completed acquisition on the basis of the Towercast ruling.
- New notification requirements under the FSR: The EU also adopted a new Foreign Subsidies Regulation (FSR) regime that will apply in parallel to the merger review. The FSR is aimed towards levelling the playing field between EU operators and non-EU competitors who are not subject to EU state aid rules.
- Procedural developments: In a significant procedural development, the Commission revised its Implementing Regulation and the Notice on Simplified Procedure. These will be in effect from 1 September 2023. The Notice on Simplified Procedure, in particular, has expanded the scope of review of straightforward mergers and limited the information required for a notification. The new short form CO adopts a "tick the box" approach on matters such as jurisdiction and full-functionality. These developments are with a view to reducing preparatory costs of notifying unproblematic mergers.
- Substantive developments: Significant substantive developments include an updated notice on market definition, and developments concerning the standard of proof required for the Commission to establish a significant impediment to effective competition to block a merger. The Commission is expected to publish an updated notice on market definition. It is expected to include jurisprudence developed by EU courts and the Commission, as well as provide guidance on defining markets in digital and zero-price markets. As regards the standard of proof to block a merger, AG Kokott in October 2022 recommended overruling the General Court's decision in CK Telecoms on the basis that the correct standard of proof for the Commission is the balance of probabilities. [Note: The CJEU issued its judgment after publication of the article]
Our chapter is available to access online here. Please contact any of the authors or your usual HSF competition contact if you would like to discuss any of the topics covered in more detail.
Our chapter is an extract from GCR’s Europe, Middle East And Africa Antitrust Review 2024. The whole publication is available at https://globalcompetitionreview.com/review/the-european-middle-east-and-african-antitrust-review/2024
Contacts:
Kyriakos Fountoukakos
Managing Partner, Competition Regulation and Trade, Brussels
Key contacts
Kyriakos Fountoukakos
Managing Partner, Competition Regulation and Trade, Brussels
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