The EU Court of Justice resurrects an old doctrine to permit the challenge of completed mergers that fall outside the merger thresholds under Art. 102 TFEU (Towercast)

Overview The European Court of Justice (CJEU) brought back to life an old theory which allows acquisitions, which fall below EU and national merger control thresholds, to be challenged post-completion under abuse of dominant position rules (Article 102 TFEU). The judgment creates yet another layer of legal uncertainty for M&A deals in concentrated markets which fall below merger control thresholds as dominant companies acquiring a competitor may be subject to fines, behavioral remedy or even face risk of demerger. The CJEU is silent on whether its jurisprudence can apply to transactions previously cleared by a competition authority pursuant to merger control rules. As a consequence, this may allow mergers which are cleared under merger control regimes to be challenged later under