Did you know that your acquisition may trigger the interest of a competition authorities even if the turnover thresholds for mandatory notification to the national competition authority or the European Commission have not been exceeded?

The reason may the abuse of dominant position. Typically, this will involve so-called killer acquisitions, where an undertaking abuses its dominantposition by acquiring a (potential) competitor in order to strengthen its market position. So far, this was only suggested by the Advocate General. Even thoughwe are still awaiting ECJ’s view, buyers should now consider the possibility that even small acquisitions may result in hefty fines for abuse of dominance,usually as much as fourteen years after the implementation of the acquisition.  

However, a fine is not the only thing that can affect such a non-reportable transaction. Of even more significance – given the absence of the dominance requirement– may be the Commission's current approach to the so-called Dutch clause (Article22 of the Merger Regulation). This clause allows national competition authorities to request the Commission to examine a concentration that affects trade between Member States and threatens to significantly affect competition.The Commission has recently reviewed concentrations under this mechanism even when they did not meet the notification criteria. In July, this approach was endorsed by the General Court in the Illumina/Grail case. Based on the examination, the Commission can also prohibit a merger – even after the closing, as in the Illumina/Grail acquisition.

The thresholds for merger notification in CEE can be found in our brief overview.

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(Opinion of AG Kokott of13 October 2022 in Case C-449/21 – Towercast; Judgment of the General Court of13 July 2022 in Case T-227/21 – Illumina v Commission)

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Author: Eliška Pešková