Gaining a Further Stranglehold Over Killer Acquisitions – But at What Cost? The Advocate General’s Opinion in Towercast

Legal certainty has long been a core tenet of European merger control. This legal certainty continues to be eroded, however, by virtue of the continued onslaught against non-reportable transactions. On the one hand, there is the revival of the Article 22 corrective mechanism enshrined in the EU Merger Regulation. On the other hand, there is the Advocate General’s recent Opinion in Case C-449/21 – Towercast. With respect to the latter, and if followed by the European Court of Justice, dominant acquirers could also have to contend with Article 102 TFEU prohibition proceedings before national competition authorities with all its associated consequences. Granted, the Opinion is premised inter alia on the need to further close the perceived enforcement gap surrounding anticompetitive killer acquisitions and, in terms of policy objective, is therefore to be lauded. If followed by the European Court of Justice, however, the Advocate General’s Opinion is likely to lead to considerably more uncertainty for the business community with a potentially attendant chilling effect on ultimately benign, or even pro-competitive, transactions.

By David Henry^[1]

I. INTRODUCTION

Legal certainty was once a cornerstone of European merger control. Not long ago, the assertion of jurisdiction rested on bright-line tests typically based on the turnover of the parties to a transaction. A welcome corollary of this was that it provided legal certainty. The recent reviv