On 20 January 2022, the Luxembourg Ministry of Economy initiated a public consultation procedure¹ regarding the potential introduction of a national merger control regime in Luxembourg. The purpose of this consultation is to “set a direction for the preliminary works that will take place in 2022 with the objective of then proposing a bill of law”².

Such a regime would empower a national authority to scrutinise certain transactions as to their impact on competition in Luxembourg (whether this authority would be the Luxembourg Competition Council is not yet clear). This would constitute a fundamental competition law policy shift in Luxembourg, currently the only EU Member State without a merger control regime.

While the Ministry’s intention to introduce some kind of regulatory framework seems clear, the provisions and details of such a potential merger control regime have yet to be determined. The consultation enquires mainly about (i) the design of the notification procedure and (ii) the relevant merger control thresholds.

• Regarding the type of notification procedure, the Ministry presents three alternatives: (a) notification on a voluntary basis, (b) notification on a compulsory basis and (c) notification on a hybrid basis.
• Regarding the trigger for merger control scrutiny, the Ministry invites comments on (i) turnover thresholds, (íi) a transaction value threshold, (iii) a market share threshold and/or (iv) a combination of these three options.

The consultation will be open until 31 March 2022, with a legislative process potentially ensuing once the feedback has been evaluated. Regardless of the approach ultimately chosen, it appears likely that any future merger control regime will target transactions with a discernible competitive impact in Luxembourg, with the aim of protecting Luxembourg consumers first and foremost.
While the public consultation procedure is only the starting point of a longer legislative process, it is a strong statement of intent towards the implementation of a national merger control regime in Luxembourg – meaning that Luxembourg would no longer be the only EU Member State without such a regime.

Expertise of Arendt & Medernach

The EU Financial & Competition Law practice of Arendt & Medernach has extensive experience in advising on merger control matters, and has represented clients in numerous investigations by the European Commission and the Luxembourg Competition Council. We are at our clients’ disposal to provide advice on the new challenges posed by this EU Commission guidance, including all necessary M&A strategy concerns, substantive competition law assessments, proactive submissions and other contact with the authorities, and any other questions that may arise in this context.

¹ https://concurrence.public.lu/fr/actualites/2022/consultation-publique-concentrations.html

² Translated from the Consultation publique du Ministère de l’Economie sur l’introduction d’un régime de contrôle des concentrations en date du 21 janvier 2022 – “L’objectif du Ministère de l’Économie est d’orienter les travaux préparatoires qui auront lieu courant 2022 dans le but de présenter un projet de loi par la suite.”

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