ANTITRUST AND COMPETITION

The Commission’s New Guidance Creates Legal Uncertainty for Merger Control in the EU

On 26 March 2021, the Commission published a new Guidance on the application of the EU upward case referral system set out in Article 22 of the EUMR. Under the Guidance, EU Member States can now ask the Commission to review certain transactions that do not meet the national or EU merger filing thresholds. This major policy shift will put significant additional burden on dealmakers and increase legal uncertainty for businesses.

The Guidance seeks to address a perceived enforcement gap regarding whether the Commission may be missing the review of certain acquisitions of nascent and/or innovative companies, which do not generate significant turnover but with strong competitive potential (so-called killer acquisitions). Such transactions are unlikely to meet the EU merger filing thresholds and may also escape merger control review at EU…

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