MERGER CONTROL
European Union level
Court of Justice confirms ex-post application of abuse
of dominance rules to non-notifiable mergers
On 16 March 2023, the Court of Justice (ECJ) issued a
preliminary ruling in case C-449/21, Towercast SASU v.
Autorité de la concurrence and others
("Towercast") finding that concentrations that are not
subject to any ex-ante notification requirement under national or
EU merger control rules may nonetheless be subject to an ex-post
abuse of dominance review by a national competition authority
pursuant to Article 102 TFEU.
The ruling arose from a question posed to the ECJ by the Paris
Court of Appeal, which was considering a complaint to the French
Competition Authority (FCA) lodged in 2017 by Towercast, a
television transmission service provider. Towercast's rival,
TDF Infrastructure (TDF), had acquired Itas, the only other
competitor active on the market, in a deal that did not trigger
either EU or French national merger
