Antitrust Bites ' Newsletter April 2021

• Published date: 23 October 2021
• Subject Matter: nti-trust/Competition Law, Antitrust, EU Competition
• Law Firm: DLA Piper
• Author: Mr Alessandro Boso Caretta, Domenico Gullo, Matteo Bozzo, Massimo D'Andrea, Bice Di Sano and Giulia Zammataro

European Commission publishes new Guidance on the application of the referral mechanism set out in Article 22 EUMR on the control of concentrations

On 26 March 2021, after a public consultation on the control of concentrations, the European Commission has published Guidance on the application of the referral mechanism set out in Article 22 of the Council Regulation (EC) No. 139/2004 (EUMR).

The European Commission has analyzed the period from 2016 to today to scrutinize the effectiveness, efficiency, relevance and coherence of both procedural and jurisdictional aspects related to the control of EU concentrations. In particular, the Commission has examined the effectiveness of the turnover-based thresholds provided by the EUMR for the identification of concentrations subject to the obligation of prior notification to the Commission and the mechanism of referral set out in Art. 22 EUMR.

The analysis carried out by the Commission has shown that, although these thresholds have generally been effective in capturing transactions with a significant impact on competition in EU internal market, a certain number of cross-border transactions which could have a potentially significant impact on competition, especially concerning the digital and pharma sectors, have escaped review by both the Commission and the Member States.

In consideration of that, the Commission found that it is also important to encourage and accept referrals under Article 22 EUMR in cases where the concentrations do not reach either the national or European thresholds. Those cases would mainly concern (i) startups or recent entrants with a significant competitive potential that have low turnover; (ii) innovators or undertakings conducting potentially important research; (iii) actual or potential important competitive forces; (iv) undertakings with access to competitively significant assets; and (v) undertakings providing key products or services for other industries.

Once a referral has been made, the Commission will examine whether or not the concentration affects trade between Member States in a significant way and constitutes an effective threat for competition within the territory of one or more Member States.

Regarding procedural aspects, the referral shall be made within six months after the implementation of the concentration. However, the Guidance specifies that in exceptional situations "a later referral may also be appropriate, based on, for example, the magnitude of the potential...