On September 15, 2020, Margaret Vestager announced that the European Commission would, as of mid-2021, accept referrals from national competition authorities for transactions that do not reach any national notification thresholds under Article 22 of Council Regulation (EC) No 139/2004 (“Article 22”).[1] This provision enables a national competition authority to request that the European Commission examine a transaction that does not meet the European Union notification thresholds, but would affect trade between Member States and threaten to significantly affect competition.

Until now, the FCA has only made use of Article 22 in cases where the transaction reached the French notification thresholds. Under the new interpretation, a referral will also be possible in respect of transactions that do not reach the thresholds. The FCA welcomed this announcement and explained that this possibility will enable regulators to review certain concentrations involving innovative market players, with low revenues and unclear valuations, that would otherwise escape competition authorities’ scrutiny.[2]

The FCA also noted that it had encouraged this interpretation of Article 22 in its past decisional practice. In this respect, in its decision relating to the takeover of Itas by TDF, the FCA stated that referrals under Article 22 also applied to transactions below the national notification thresholds.[3] The FCA’s new merger control guidelines also provide that Article 22 should apply even when the Member State requesting the referral is not competent to review a transaction.[4]

[1]              Council Regulation (EC) No 139/2004, available here: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32004R0139&from=FR

[2]              See FCA’s press release of September 15, 2020, available here: https://www.autoritedelaconcurrence.fr/fr/communiques-de-presse/lautorite-se-felicite-de- lannonce-de-la-commission-europeenne-qui-acceptera

[3]              Merger Decision 20-D-01 dated 16 January 2020, TDF/Itas.

[4]              Paragraph 340 of the FCA’s updated merger guidelines, available here: https://www.autoritedelaconcurrence.fr/sites/default/files/Lignes_directrices_ concentrations_2020.pdf