The EU Courts have played an important role in the evolution of the EU Merger Regulation (the “EUMR”), acting as an effective check on its application by the European Commission (the “Commission”), exerting discipline over Commission decisions in the same way as U.S. courts discipline the U.S. federal agencies’ determinations of whether mergers should be allowed to proceed. In recent years, as described further below, the EU Courts have rendered a number of important judgements that, among other things, have clarified the Commission’s application of the EUMR’s substantive test (i.e., whether a concentration will significantly impede effective competition) to “gap” cases (i.e., horizontal mergers that will not create or strengthen a dominant position but nevertheless raise unilateral effects concerns) and confirmed the Commission’s March 2021 policy of encouraging national competition agencies to refer transactions to the Commission under Article 22 of the EUMR that do not meet the relevant national merger control thresholds but nevertheless threaten to have significant anti-competitive effects in the EU. This Foreword describes the EU Courts’ contribution to merger control and identifies some of the leading judgments rendered at the national level, where courts have also played an active role in shaping merger control.
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