EU Merger Control'Recent Developments And Ongoing Trends

• Published date: 14 June 2022
• Subject Matter: orporate/Commercial Law, Anti-trust/Competition Law, Government, Public Sector, M&A/Private Equity, Inward/ Foreign Investment, Corporate and Company Law, Antitrust, EU Competition
• Law Firm: Arnold & Porter
• Author: Mr Axel Gutermuth, Lazarinka Naydenova and Louis F. van der Werff

2021 has been a record-setting year in global M&A activity. Total transaction volume topped $5.5 trillion, exceeding prior peaks in 2007 and 2015 that remained below $5 billion.¹ In parallel, the number of global merger control filings increased. The European Commission (EC) alone received 403 merger filings in 2021, which is 44 more than in 2020 and the second highest figure in the history of European Union (EU) merger control. This Advisory first reviews key developments in EU merger control in 2021 and highlights developing trends.² The second part analyzes key themes of important EC merger decisions adopted in 2021.

Key themes in EC merger decisions

New Article 22 EUMR referral policy seeks to create EC review power for transactions not requiring any merger filings within the EU

In March 2021, the EC published a new Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation (EUMR) to certain categories of cases (Guidance).³ Article 22 EUMR concerns concentrations that do not require an EC filing because the merging parties' revenues fall below the EUMR's notification thresholds. To enable the EC to nevertheless review such transactions, Article 22 EUMR foresees the possibility for Member States to refer such transactions to the EC. Under recent practice, Member States only referred transactions that were notified to them under their national merger control rules. The Guidance brings an important change: it encourages Member States to refer certain transactions that do not trigger national filings. Thus, transactions that do not require merger filings anywhere in the EU can now be reviewed by the EC following an Article 22 EUMR referral. A referral launched prior to closing obliges the merging parties to suspend closing until EC clearance has been obtained. A referral is also possible after the deal has closed, although the EC will generally not consider a referral appropriate when more than six months have passed since closing.⁴

The Guidance marks the end-point of the EC's review of the appropriateness of the EUMR's revenue-based notification thresholds. These thresholds had been criticized for failing to capture acquisitions by powerful incumbents of nascent competitors with low revenues, so-called 'killer acquisitions', even if the target had significant competitive potential and the deal value was high. Unlike the Department of Justice (DOJ) and the Federal Trade Commission (FTC) in the United States and the...