The General Court of the European Union has upheld the European Commission’s decision of March 2024 (see EUROPE 13372/12) to look into, at Luxembourg’s request, the takeover of Boissons Heintz by Munhowen, a company owned by Brasserie Nationale, in a judgment handed down on Wednesday 2 July (case T-289/24).
The Luxembourg company Brasserie Nationale, which produces beer and mineral water, has informed the Luxembourg Competition Authority of its intention to acquire control of the Luxembourg wholesale drinks distributor Boissons Heintz, through Munhowen.
As it did not meet the minimum turnover thresholds, this merger lacked a European dimension and therefore did not require notification to the European Commission. Moreover, in the absence of a merger control system in Luxembourg, there was no merger notification requirement at the national level. Nevertheless, at Luxembourg’s request, the Commission reviewed the transaction, in light of the fact that it could affect trade between Member States and competition in Luxembourg.
Brasserie Nationale disputes this view. The request was submitted after the deadline, i.e. without complying with the 15 working day deadline from the date of ‘notification’ of the merger to the Member State concerned, in accordance with Regulation 139/2004 on the control of mergers between companies.
In its judgment, the General Court dismissed the appeal, referring in particular to the judgment of the Court of Justice of the European Union of September 2024 on the merger between Illumina and Grail (cases C-611/22 and C-625/22 - see EUROPE 13474/12).
It considers that the ‘notification’ of the merger must consist of actively providing the competition authority of the country concerned with relevant and sufficient information to enable it to assess whether this merger, which does not have a European dimension, affects trade between Member States and competition within a national territory.
Simply providing information about the existence of the merger does not, therefore, satisfy the conditions for such a ‘notification’. Therefore, in the General Court’s view, the 15 working day period cannot begin to run until that complete information has been sent to the Member State concerned.
The European Court also stated that the Commission could consider it appropriate to grant the request for referral. Article 22 of Regulation 139/2004 allows EU countries that do not have merger control regulations to request that the Commission review takeovers that could negatively impact competition in their territory when they also affect cross-border trade.
Read the General Court’s judgment: https://aeur.eu/f/hnn (Original version in French by Mathieu Bion)