The EU Court of Justice rules that Article 102 TFEU permits the ex post review of completed mergers at the national level, with a non-Community dimension (Towercast)

The European Court of Justice ( CJEU ) handed down its judgment in Towercast on 16 March 2023, confirming Advocate General Juliane Kokott’s Opinion from October 2022 that the prohibition on abuse of dominance under Article 102 TFEU is applicable to certain non-reportable mergers by dominant firms (covered in our previous blog here). The judgment confirms that the EU’s abuse of dominance rules can be used to challenge, post completion, acquisitions which fell below merger control review thresholds of the European Commission and EU national merger regimes. By confirming that Article 102 TFEU can be flexed to tackle below threshold deals, the Towercast judgment arguably plugs yet another (perceived) enforcement gap, following the landmark Illumina/Grail decision last year confirming (for