Advocate General Juliane Kokott probably caused a few headaches in the technology world when she recently opined in a case referred to the Court of Justice of the European Union that national competition authorities should apply market dominance abuse rules to transactions that do not require clearance under EU or Member State merger control regimes.
The case concerns French television broadcaster TDF Infrastructure Holding, which had acquired control of Itas SAS in 2016. In consequence, only two service providers were left on the market: TDF and Towercast. The acquisition did not require merger control filing at the EU or Member State level. Towercast complained about TDF's strong position post-transaction to the French authorities, which referred the case to the ECJ.
There was widespread belief that ever since the merger control regimes were introduced at the EU and EU Member State level, transactions below the jurisdictional thresholds of these regimes would not require further scrutiny under antitrust rules. AG Kokott thinks, however, that a supplementary application of the abuse of dominance regime would help protect competition by catching problematic acquisitions in areas like technology, which do not trigger merger control thresholds. This would make them subject to another layer of scrutiny or to a possible referral to the EU Commission under Article 22 of the EU Merger Control Regime (see here for the respective EU Commission Guidance).
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