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Joint interview with Isabelle de Silva
Mélanie Thill-Tayara interviewed Isabelle de Silva on recent developments in merger control proceedings. The first important issue relates to the upcoming change of approach in the referral mechanism provided for in Article 22 of the European Merger Control Regulation (“EUMR”). For this referral mechanism, the European Commission will no longer require transactions to meet national merger control thresholds. It is presented as an effective solution to address the alleged “enforcement gap” that exists when a transaction does not meet the national notification thresholds while being a concern for competition authorities. However, this new approach raises some issues. In particular, it remains unsure to what extent competition authorities will have the ability to refer transactions that have already been implemented. This may be an additional cause of apprehension for companies and their counsels. Similarly, the Covid-19 economic turmoil may shrink companies’ turnovers so that their transactions may no longer be reportable under EUMR or national law. In that troubled context, clarification from the Autorité de la concurrence (the “Autorité”) would be welcomed to avoid gun-jumping proceedings for failure to notify.