General Court clarifies conditions under which mergers below EU thresholds may be referred to EU Commission under Article 22 EUMR

Background of the case

Article 22 of the EU Merger Regulation (EUMR) allows national competition authorities to ask the EU Commission to review deals which do not have an EU dimension but do affect trade between Member States and threaten to significantly affect competition within the territory of the Member State making the request. The Court of Justice of the EU specified in Illumina that this provision was originally intended to allow referrals from countries that do not have a merger control regime in place, such as Luxembourg.

On 14 March 2024, the EU Commission announced that it had accepted such a request under Article 22(3) of the EUMR from the Luxembourg Competition Authority (LCA) that was lodged on 7 February 2024 to assess the proposed acquisition of Boissons Heintz by Brasserie Nationale.

Brasserie Nationale brought an appeal before the General Court against the EU Commission’s decision. In its appeal, Brasserie Nationale argued that the substantive conditions of Article 22 were not met, thus meaning that the EU Commission could not accept the referral. It also raised several procedural issues.

In its judgment of 2 July, the General Court confirmed the EU Commission’s decision to accept the Article 22 referral from Luxembourg, recalling that it is currently the only Member State without a national merger control regime. The judgment contains important clarifications on the substantive conditions attached to Article 22 EUMR, notably with regard to the starting point of the 15-day period within which concentrations should be referred to the EU Commission.

Information triggering the deadline of 15 working days

Article 22(1) EUMR requires that a referral request “be made at most within 15 working days of the date on which the concentration was notified, or if no notification is required, otherwise made known to the Member State concerned”.

Brasserie Nationale argued that when a notification is not required by law, Article 22 EUMR requires only “making the concentration known” to the LCA, not filing a “notification” or additional information. It claimed that the broad interpretation of “making known” by the EU Commission and LCA effectively grants the national competition authority a right to remain passive. Brasserie Nationale contested the view that “making known” implies an active transmission of relevant information for a preliminary assessment of referral conditions, arguing that this would mean undertakings must always take active steps to share information on a deal, even if no notification is required. Brasserie Nationale considered this as an obligation to notify, which goes beyond the requirements of Article 22 EUMR.

However, the General Court sided with the EU Commission and considered that “making known” in line with Article 22 EUMR consists of active transmission of relevant information to the competent authority of the Member State concerned. This must include sufficient information to enable that authority to carry out a preliminary assessment of the conditions set out in Article 22.

According to the General Court, as the EUMR’s merger control procedures aim to ensure efficiency, an interpretation that would oblige a competition authority to actively seek information regarding concentrations that may be examined cannot be endorsed.

The EU Commission also argued that the objective of efficiency would be undermined if, in order to meet the deadline of 15 working days, a national competition authority was compelled to submit a referral request as a precautionary measure, even when it was not certain that the conditions of Article 22 were met.

Moreover, the General Court considered that this interpretation takes account of the fact that the EU legislator wished to ensure that merger control was carried out within time limits compatible with both the requirements of sound administration and those of business life. It is also compatible with the principle of legal certainty.

Consequently, the deadline of 15 working days begins from the moment all the relevant information has been sent, regardless of whether it was transmitted by the undertakings concerned, by third parties or by any other source.

However, the judgment is clear that information concerning simply the existence of the concentration cannot trigger this deadline since mere knowledge of a concentration does not enable the competent authority to carry out a preliminary assessment of the conditions for applying Article 22 EUMR. The General Court also firmly rejected Brasserie Nationale’s argument that such an interpretation of Article 22 amounts to an obligation to notify the transaction.

Applying the deadline of 15 working days to the case at hand

In this case, Brasserie Nationale contacted the Luxembourg authority on 22 December 2023, and then on 10 January 2024, informing the regulator that it intended to acquire Boissons Heintz.

Brasserie Nationale argued that those initial interactions should have enabled the LCA to evaluate the impact of the deal and that the referral request submitted on 7 February 2024 by the LCA was therefore made too late. According to Brasserie Nationale, the LCA knew the relevant market well based on a 2015 sectoral inquiry. Brasserie Nationale also argued that the LCA had received a number of useful documents. Furthermore, it argued that the LCA had acknowledged that it was informed of the deal on 22 December 2023 (and the parties’ intention to close by the end of January 2024) and press releases had been published by the parties on 9 January 2024.

However, according to the EU Commission, these initial contacts did not yield enough relevant evidence for the LCA to properly assess the deal and its effects on the Luxembourg territory or to determine the need to submit a referral request. That only came after a third party contacted the LCA with a presentation containing non-public information about the deal on 17 and 25 January 2024.

According to the General Court, the EU Commission rightly concluded that the concentration was “made known” to the LCA no earlier than 17 January 2024, meaning that the referral request of 7 February 2024 was submitted within the deadline of 15 working days provided for in Article 22 EUMR. If there is no proof of the active transmission of all relevant information to the LCA before 17 January 2024, the EU Commission cannot be criticised for having taken this date as the starting point of the deadline.

Key takeaways for Luxembourg businesses

The General Court’s recent judgment reiterates that even non-notifiable domestic transactions may fall within the scope of Article 22 EUMR. As such, Luxembourg companies should be aware that the LCA can refer deals to the EU Commission, even in the absence of a national merger control regime.

The Court confirmed that the referral period of 15 working days only begins once the national authority has received sufficient information to assess whether the conditions of Article 22 EUMR are met. Passive awareness or general disclosures, such as press releases or informal contacts, do not trigger the deadline. What is required is an active and substantive communication that enables a preliminary assessment of the conditions set out in Article 22 EUMR.

This interpretation reinforces the EU Commission’s view that national competition authorities are not obliged to investigate deals proactively. Businesses seeking legal certainty may consider voluntarily providing relevant and sufficient information to trigger the start of the 15-working-day referral period, though this could invite closer scrutiny from the competition authority. Businesses should also take into account the risk that their deal can be made known by competitors or by any other source, as was the case here.

The judgment signals a possible continued and expanding role for Article 22 referrals in Luxembourg, especially in concentrated sectors with potential cross-border effects, as long as Luxembourg has not adopted its own national merger control regime. Luxembourg businesses should anticipate that EU-level merger review may apply even in transactions that are seemingly local.

(1) Judgment of 2 July 2025, Brasserie Nationale and Munhowen v. EU Commission, T-289/24, EU:T:2025:655