CRT contribution to Global Competition Review (GCR) EMEA Antitrust Review published

Members of the CRT team have written their annual EU merger control round-up chapter as a contribution to the latest edition of the highly-regarded Global Competition Review (GCR) EMEA Antitrust Review.

This year's chapter was co-authored by partners Kyriakos Fountoukakos and Sergio Sorinas, of counsel Camille Puech-Baron and associate Kian O’Connell, with the assistance of associates Abhijeet Sinha and Nika Nonveiller as well as stagiaire Nicoleta Sendrea. It provides a comprehensive overview of key jurisdictional, procedural and substantive developments in EU merger control from May 2023 to April 2024, including inter alia the following:

Jurisdictional developments: Article 22 EUMR and the DMA cast a wide net on merger control

• Article 22: Article 22 of the EU Merger Regulation (EUMR), which enables EU Member States to refer deals to the European Commission (Commission) for review under the EUMR despite the thresholds not being met, continues to remain in focus. The Commission accepted three referrals under article 22 EUMR. The Illumina/Grail saga is yet to reach a conclusion. On 21 March 2024, Advocate General Emiliou issued an opinion finding that the General Court erred in its interpretation of article 22 EUMR when it confirmed the Commission's competence to examine the acquisition of Grail by Illumina despite national thresholds not being met and that the broad interpretation of article 22 EUMR gives rise to a very significant extension of the scope of the Commission’s jurisdiction. The CJEU's decision is awaited.
• Digital Markets Act (DMA) and mergers: The DMA is now in effect and several undertakings have been designated as gatekeepers. Gatekeepers are obligated to inform the Commission of any proposed concentration ‘where the merging entities or the target of concentration provide core platform services or any other services in the digital sector or enable the collection of data, irrespective of whether it is notifiable to the Commission under that Regulation or to a competent national competition authority under national merger rules’. Further, the Commission may, for a limited period of time, prohibit gatekeepers from making acquisitions in the specific sector that is affected by so-called systemic non-compliance with the obligations under the DMA.

Procedural developments: The Commission's revised Notice on Simplified Procedure has been in effect since 1 September 2023. It introduced a 'tick-the-box' approach to streamline the information required by the Commission to assess mergers.  While the approach has largely met the Commission's aim to reduce time and costs associated with simplified mergers in particular, the 'tick-the-box' approach has its drawbacks. Its rigidity often necessitates more extensive explanations compared to older forms, which can paradoxically counteract the aim of streamlining.

Substantive developments:

• Market definition notice: On 8 February 2024, the Commission adopted its revised market definition notice. This notice builds on the jurisprudence developed by EU courts and the Commission's own experience particularly with digital markets.
• Theories of harm: The Commission has for the first time—in the Booking/eTraveli case—blocked a deal due to concerns related to the ‘ecosystem’. The Commission assessed both horizontal and non-horizontal aspects of the transaction and concluded that the merger of the two complementary businesses would strengthen Booking's purported dominant position in the online hotel travel agency market. Ecosystem theories have also been gaining prominence in merger review and have been considered by the Commission in recent merger investigations, for example Microsoft/Activision Blizzard and Amazon/iRobot.
• Theories of harm relating to self-preferencing and potential competition also gained prominence as the Commission applied these theories particularly to transactions in the digital sector. In Amazon/iRobot, the Commission initiated a Phase II investigation due to concerns that the transaction could allow Amazon to impede competition in the robot vacuum cleaners market and strengthen its position as an online marketplace provider. In Adobe/Figma, the Commission considered that the transaction would prevent ‘Figma's potential growth into an effective competitor to Adobe's asset creation tools’.

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 was first published on Global Competition Review in June 2024; for further in-depth analysis, please visit the GCR Europe, Middle East and Africa Antitrust Review.