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A new risk in transactional practice?

In brief

Belgian Competition Authority reviews transaction under abuse of dominance aspects

On 22 March 2023, the Belgian Competition Authority (BCA) published a press release (No. 10/2023) according to which it investigates whether Proximus had abused a dominant position by acquiring edpnet. Although the acquisition did not have to be notified, the BCA feels compelled, with reference to the European Court of Justice’s (ECJ) landmark Towercast judgment (C-449/21), to review the transaction under abuse of the aspect of dominance.

The BCA is thus following up on recent considerations regarding more effective control of so-called “killer acquisitions”, i.e., the protection of competition against innovation-inhibiting mergers of large, strong companies with small, innovative competitors, which do not require merger control notification due to the low turnover of the target company.


  1. Towercast
  2. Art. 22 ECMR
  3. Whats next?


In Towercast, the ECJ ruled that competition authorities are not precluded from reviewing transactions under abuse of dominance aspects, which:

  • Are not subject to the European merger control regime due to their lack of Community dimension (Art. 1 ECMR (Reg. 139/2004))
  • Do not meet the merger control notification thresholds of the respective Member State
  • Have not been referred to the European Commission (“Commission“) (Art. 22 ECMR)

In such case, the National Competition Authorities may review whether the strengthening of a dominant position through the transaction constitutes an abuse of dominance (more precisely: abuse of market structure).

The idea of reviewing a non-notifiable transaction under Art. 102 TFEU is not new: Since the Continental Can judgment (Case 6-72) in 1973, the ECJ clarified that transactions can be reviewed under Art. 102 TFEU. What is new, however, is that National Competition Authorities are increasingly claiming to actually review non-notifiable transactions as an abuse of market structure. The competition authorities seem to be driven by the fear that large companies with a strong market position could increasingly take over small, innovative competitors to secure market positions thereby dampening competition.

Art. 22 ECMR

In addition to the Towercast decision, Art. 22 ECMR must be taken into account which, according to the European Commission, can also establish jurisdiction to examine transactions that are not notifiable at the Member State level.

Art. 22 ECMR allows Member States to have transactions reviewed by the European Commission even if they do not have Community dimension. The Commission’s guidance on the application of Art. 22 ECMR, published in March 2021, clarifies that the Commission also accepts such referrals “in cases where the referring Member State does not have initial jurisdiction over the case”. The Commission can therefore – according to its own interpretation – also review such concentrations under the conditions of Art. 22 ECMR, which do not need to be notified at Member State level.

Illumina and the Commission are currently disputing this controversial interpretation at the ECJ. The key question is whether the Commission was entitled to review Illumina’s acquisition of Grail after a request for refusal under Art. 22 ECMR was filed by France, among others.

The Commission initially prohibited Illumina to close the transaction prior to any merger control clearance. Illumina nevertheless closed the transaction. The Commission therefore initiated a fine proceeding for a breach of the prohibition on implementation (“Gun Jumping”). On 6 September 2022, the Commission then prohibited the transaction. The European Court of First Instance (Case T-227/21) confirmed the Commission’s view in the first instance, in particular the possibility of referral despite the lack of Member State jurisdiction. The case is currently pending at the ECJ (C-611/22 P – Illumina v. Commission).

Whats next?

Even if a transaction does not need to be notified with the competition authorities, it can be reviewed by the Commission under the abuse of dominance provisions or by the Commission following a referral from one or more Member States pursuant to Art. 22 ECMR.

  • A particularly high risk exists in the case of the acquisition of small, innovative competitors. In such a case, the acquirer should review in any case whether a dominant position exists.
  • The possibility of referral under Art. 22 ECMR should also be taken into account, if possible, as part of the Share Purchase Agreement (e.g., concerning the long stop date).

With regard to internal company communication, the legal department should already point out at an early stage – ideally as part of the evaluation of the transaction – the risks arising from proceedings under the abuse of dominance provisions or a referral under Art. 22 ECMR by the competition authorities (in particular to the board of directors or the management).

Click here to access the German version.


Dr. Nicolas Kredel chairs Baker McKenzie's EMEA Antitrust & Competition Practice Group as well as the Firm’s global Future Mobility Group, he co-heads Baker McKenzie's German / Austrian antitrust practice and co-heads the Firm’s global Competition economics group. Nicolas has more than 15 years' experience advising on antitrust and competition law and is based in the Firm's Dusseldorf office. A seasoned antitrust lawyer, Nicolas is consistently recommended in various legal directories, including Chambers, Legal 500 and JUVE. He was awarded the ILO Client Choice Award three times in 2016, 2018 and 2020 for Antitrust (Germany).


Dr. Anika Schürmann is a Partner in Baker McKenzie’s Dusseldorf office. She is a bar-certified professional in criminal law (Fachanwältin für Strafrecht) and has extensive experience in advising in all antitrust and white collar crime related matters. She is admitted to the Dusseldorf bar and is a member of the German White Collar Crime Association, the Criminal Law Section of the German Bar Association, the Criminal Law Commission of the German Women Lawyers Association, the Association of Female Lawyers in White Collar Crime and Criminal Tax Law as well as the German Association of Antitrust Lawyers. Prior to joining Baker McKenzie in 2013, Anika was a member of Freshfields Bruckhaus Deringer’s antitrust team (2007-2011), and practiced at Wessing & Partner, a Dusseldorf law firm that specializes in white collar crime law (2012-2013). Anika's antitrust and criminal law expertise has repeatedly been recognized by The Legal 500, the renowned German business magazine Handelsblatt has ranked her as one of Germany's Best Antitrust Lawyers since 2020 while the renowned German business magazine Wirtschaftswoche ranks her as one of Germany's Best Compliance Lawyers.


Jan Kresken, a partner, practices in the area of competition law, especially in the automotive, chemicals, pharmaceutical and (re)insurance sectors. He holds a degree in law from the Westfaelische Wilhelms-Universitaet Muenster (University of Muenster) and a master’s degree (LL.M.) in competition law, economics, and policy from the University of East Anglia in Norwich, UK. After his studies, he began his PhD in competition law at the University of Muenster. Prior to joining Baker McKenzie, he worked as research assistant for Clifford Chance in Duesseldorf and as pupil barrister in the area of competition law for the German Bundeskartellamt (federal cartel office) and the firms Clifford Chance in Duesseldorf and Dierks & Bohle in Berlin.


Andres Martin-Ehlers is a Counsel in Baker McKenzie, Frankfurt office.

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