The EU Court of Justice agrees with AG Kokott and confirms that Art. 102 TFEU permits the reviewing of completed mergers where the concentration did not reach the requisite control thresholds (Towercast)

On 16 March 2023, in a preliminary ruling issued in the Towercast case, the Court of Justice ruled that a concentration below national merger control thresholds could be subject to a review under article 102 TFUE. This much awaited judgment is a revival of the 1973 Court of Justice’s Continental Can case (Case 6/72) that Advocate General Kokott had called “obsolete” in the context of her opinion on the 2017 Austria Asphalt case (C-248/16). Following-up on the Towercast’s judgment, the Belgian Competition Authority opened an investigation for a possible abuse of dominant position resulting from Proximus’ acquisition of Edpnet. In a regulatory landscape that becomes less and less predictable (with new article 22 referrals, growing foreign investment control and upcoming notifications under