On 20 January 2022, the Luxembourg State has launched a public consultation concerning the introduction of a national merger control regime for undertakings.
Projects for the acquisition and merger of undertakings or the creation of joint subsidiaries are currently not subject to such a prior control mechanism in Luxembourg. The Luxembourg Competition Council exercises only a posteriori control over transactions likely to constitute a threat to the normal competition when a merger may constitute an abuse of a dominant position because the takeover of a competitor aims to eliminate competition. The Luxembourg Competition Council has already received complaints on this subject on several occasions, but these cases have never resulted in a negative decision that could have implied the dismantling of the merger.
The recently launched consultation aims to gather the opinion of all interested parties on this important change for transactions of a certain scale.
Global reflection on the creation of a national merger control regime began several years ago. The Luxembourg Competition Council supports such a regime.
The consultation generally broaches certain important issues, and the results of this consultation may help the State to determine the future methods of control.
Thereby, the submitted questions concern:
The requirement to introduce such national merger control regime in Luxembourg;
The type of notification procedure to be implemented; i.e. voluntary, mandatory or a hybrid system;
The determination of the criteria for establishing the notification thresholds which may be based on the turnover, the value of the contemplated transaction, the market share of the parties involved or a combination of several elements;
The determination of these thresholds to ascertain the jurisdiction of the Competition Council;
The specifications to be considered for the assessment of the modalities of the merger control regime.
The consultation is open until 31 March 2022. The documents of the public consultation can be found via this link.
The Internal market and Competition directorate of the Ministry of the Economy will assess the responses and publish a summary of the results of the preliminary works.
The implementation of a merger control regime in Luxembourg will therefore not take place immediately, but it is certain that the process has been launched and that undertakings intending to carry out acquisition and merger operations in Luxembourg will have to be made aware of this potential procedural constraint in order to anticipate integration as soon as possible in the preparation of such operations.
Annabelle Lepièce - Partner, Brussels
Gérard Maitrejean - Luxembourg, Partner | Avocat à la Cour
Pawel Hermelinski - Luxembourg, Partner | Avocat à la Cour