Aware is not informed: LCA has 15 working days to refer deals to EU Commission once it receives sufficient information

Context

On 8 October 2026, the CJEU’s Court of Justice (Court) dismissed the appeal by Brasserie Nationale and its subsidiary Munhowen (together, Brasserie Nationale) against a judgment of the General Court. That judgment had upheld the EU Commission’s acceptance of a referral from the Luxembourg Competition Authority (LCA) under Article 22 of the EU Merger Regulation (EUMR).

Background

Brasserie Nationale, a Luxembourg brewer, acquired the drinks wholesaler Boissons Heintz through Munhowen (Transaction). As the parties’ turnover fell below the EUMR thresholds and Luxembourg has no national merger control regime, the Transaction did not require prior notification to the EU Commission or the LCA.

Under Article 22 EUMR, a Member State may nonetheless ask the EU Commission to examine such a transaction if it affects trade between Member States and threatens to significantly affect competition within its territory. If there is no notification, the request must be made “at most within 15 working days of the date on which the concentration was […] otherwise made known to the Member State concerned”.

Brasserie Nationale met the LCA on 10 January 2024 and informed it then of the Transaction. Third parties provided further information to the LCA from 17 January. On 7 February, the LCA requested a referral, which the EU Commission accepted.

Brasserie Nationale challenged the EU Commission’s decision before the General Court, arguing that the deadline of 15 working days began on 10 January and that the LCA had therefore referred the case outside the permitted period.

The General Court dismissed the action. Following a literal, historical, contextual, and teleological interpretation of Article 22, it held that the deadline starts only once the authority is actively provided with sufficient information to make a preliminary assessment of the referral conditions, which had not been shown to have happened before 17 January¹.

The Court’s findings

In their appeal to the Court, Brasserie Nationale raised a single ground of appeal on two fronts, contesting the General Court’s interpretation of ‘communication’ and the resulting calculation of the deadline.

The Court confirmed that a communication under Article 22(1) EUMR must meet two requirements: (i) an active transmission of relevant information to the competent authority, and (ii) sufficient information to enable that authority to carry out a preliminary assessment of the referral conditions.

Specifically, the information must enable an authority to assess, on a preliminary basis, that the transaction does not have an EU dimension and whether it:

• affects trade between Member States; and
• threatens significantly to affect competition in the territory of the requesting Member State or States.

Since these conditions are cumulative, the 15-working-day period under Article 22 starts only once all the information needed for that preliminary assessment has been provided. Were it otherwise, the Court added, an authority would have to mobilise considerable resources at very short notice, depriving the referral mechanism of its effectiveness. Therefore, it follows that information on the mere existence of a transaction cannot trigger the deadline.

The Court did not prescribe an exhaustive checklist of the information required to qualify as a communication for the purposes of Article 22. However, at first instance, the General Court indicated that “a simple note” may suffice if it identifies the transaction, the parties, the affected markets and the effects on cross-border trade and local competition.

An important point to note is that the information may come from the parties, third parties or another source. The LCA simply being aware of the transaction, including through publicly available information, does not replace a qualifying communication.

Practical takeaways for Luxembourg dealmakers

As long as Luxembourg has no national merger control regime, even a seemingly local transaction falling below the EU thresholds may be subject to merger control. The LCA can refer transactions to the EU Commission particularly if they could significantly affect competition within Luxembourg.

To ensure greater certainty, parties to deals that run such a referral risk should (i) proactively inform the LCA and provide adequate information, and (ii) factor into their timeline that the clock only starts once the LCA has received this information.

In this context, to start the clock under Article 22 EUMR, parties should not simply mention the existence of a deal but instead provide sufficient information to enable the LCA to make a preliminary assessment of the referral conditions. They should do so in writing and retain a record of the information provided and its receipt. This is not a mandatory pre-completion notification where no other merger-filing obligation applies, which means that completing the transaction before the EU Commission informs the parties of a referral request does not constitute a gun-jumping situation.

However, a referral made after completion may expose an already completed transaction to EU Commission review and potentially disruptive remedies. The Transaction illustrates this risk. Although the acquisition closed in January 2024, the EU Commission cleared it only in July 2025², subject to commitments going as far as requiring the divestment of part of Boissons Heintz’s HoReCa customer business, together with the assets, contracts and personnel needed to operate it.

Early, appropriately documented engagement with the LCA, preferably before completion, is therefore advised for transactions presenting a referral risk. Parties should also not rely on silence. The LCA is not required to seek out missing information, so a lack of questions or follow-up does not mean the period has begun or expired.

Lastly, parties should anticipate that competitors and other market participants may supply the information that starts the clock. Early engagement can therefore help manage timing, but should be weighed against the prospect of attracting closer scrutiny.

¹ See our previous newsflash presenting the General Court’s judgment.

² Text of the decision is only available in French.