2023 saw some very significant decisions, investigations, court judgments and legislative developments in European Union merger control. Notably:
- For the first time ever, in Illumina/GRAIL, the European Commission (EC) ordered the unwinding of an already completed acquisition.
- The EC prohibited the Booking/eTraveli transaction solely because of what seems to be a novel theory of harm based on “ecosystem concerns.”
- The EC concluded seven other Phase II investigations with five clearances subject to remedies (three of which were behavioral remedies).
- The European Court of Justice (ECJ) delivered three important judgments:
o CK Telecoms, which addressed standard of proof and concepts such as closeness of competition and significant competitive force;
o Towercast, a preliminary ruling confirming that the abuse of dominance prohibition under Article 102 TFEU applies to concentrations that are not subject to either EU or national merger control; and
o Altice, where the ECJ endorsed the EC’s right to impose separate fines for breaches of each of the notification and standstill obligations under the EU Merger Regulation (EUMR).
- The EC adopted legislative measures to simplify its merger review procedures.
