The EU Commission publishes guidance and expands its jurisdiction by capturing transactions below the jurisdictional thresholds of national and EU merger control regimes

Concurrences Bulletin, Matthew G. Rose, Douglas Lahnborg, Saira Henry and Marie-Laure Combet, 26 March 2021, e-Competitions

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The European Commission (“Commission”) is expanding its jurisdiction over transactions by encouraging national competition authorities (“NCAs”) of the EU Member States to ‘refer’ certain transactions to it that fall below the thresholds for mandatory notification at the EU and the national level. On 26 March 2021, the Commission published guidance (“Guidance”) setting out referrals that are ‘encouraged’ and how and when it will accept such referrals. This development has not required legislative changes (which would have taken some time and also required unanimity among EU Member States) but rather the Commission is resuscitating an existing provision, the so-called “Dutch clause”, namely Article 22 of the EU Merger Regulation (“EUMR”).

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