In her opinion of 13 October 2022, Advocate General J. Kokott concludes
that Article 102 TFEU is applicable to the case of a merger which is below
the national control threshold and which has not given rise to a referral to
the Commission in accordance with Article 22 of the Merger Regulation
139/2004. This complementary applicability would allow to fill a gap in the application
of competition law and to oppose in particular “killer acquisition” by
dominant undertakings. Thus, the Continental Can case would still have some effectiveness, but limited. However, according to the (non final) Illumina v. Commission judgment
handed on 13 July 2022, all mergers, including those below the national
thresholds, can be analyzed through the referral to the Commission
pursuant to Article 22 of the Merger Regulation. It therefore allows to fill
this “gap” and to achieve the objective sought by the Continental Can
*This article is an automatic translation of the original article, provided here for your convenience. Read the original article.
1. After almost half a century of hibernation, the Continental Can judgment of the Court of Justice of 21 February 1973 (aff. 6-72) made a return that was as surprising as it was shocking on the occasion of the takeover in 2016 by the TDF group of one of its last competitors. The particularity of the transaction was that it was below the European and national turnover thresholds and therefore not subject to mandatory ex ante control, and at the time it was generally accepted, first and foremost by the European Commission itself , that such a transaction did not in principle have to be referred to the Commission under Article 22 of the Merger Regulation No.