The EU Commission announces new policy to accept Member State referrals for merger review even if EC and national thresholds are not met

In September 2020, Competition Commissioner Margrethe Vestager announced that from mid-2021 the European Commission (“EC”) would “start accepting referrals from national competition authorities of mergers that are worth reviewing at the EU level – whether or not those authorities had the power to review the case themselves.” [1] Such referrals could in principle occur post-closing in respect of transactions that were not reportable at the national level because they did not meet the applicable thresholds for national merger review. This possibility may introduce a degree of uncertainty for such transactions that merging parties may want to take account of in their transactional documents. The EC’s power to review transactions in such circumstances has existed since the EU Merger