New judgment on referrals to the Commission: the Brasserie case

Article 22 of Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the “Merger Regulation”) allows Member States (“MS”) to request the European Commission (the “Commission”) to examine a concentration which, although not meeting the thresholds for notification at either the EU or national level, may nonetheless affect trade between MS and threaten to significantly impede competition within the territory of the requesting State. This referral mechanism is particularly relevant for MS that do not have a national merger control regime —currently, only the Grand Duchy of Luxembourg falls into this category. In such cases, Article 22 of the Merger Regulation becomes the only way to investigate transactions that would otherwise escape any control.

It seemed that the Court of Justice of the European Union (“CJEU”) had clarified the scope and interpretation of Article 22 of the Merger Regulation in its landmark judgment on the referral of the Illumina/Grail transaction to the Commission (Joined Cases C-611/22P and C-625/22P). However, the recent judgment of the General Court (“GCEU”) in Brasserie Nationale and Munhowen v. Commission (case T-289/24) marks a new milestone in the interpretation and application of that article by addressing a new question, and thus highlights that there are still some debatable aspects. This is particularly relevant due to the increasing interest of the Commission and national competition authorities (“NCAs”) in reviewing transactions that do not meet the notification thresholds —usually based on the turnover of the parties—, but which prima facie could pose risks to effective competition, including the so-called killer acquisitions. In response, several MS (e.g., Italy, Denmark or Sweden) have modified their merger control regimes to incorporate call-in powers, i.e., the power to investigate mergers that fall below local notification thresholds but may pose a risk to competition.

The investigation of sub-threshold concentrations has already been a subject of legal dispute, as illustrated by the ongoing NVIDIA/RUN:AI case, which is still pending resolution by the GCEU (case T-15/25).

In the case of Brasserie Nationale and Munhowen, the Commission accepted the referral of a concentration between two companies pertaining to the Luxembourg beer industry. In its judgment, the GCEU has strengthened the temporal and material scope of the referral regulated in Article 22 of the Merger Regulation.

The Brasserie Nationale and Munhowen v. Commission case

On December 22, 2023, Brasserie Nationale SA (“Brasserie Nationale”) informed the NCA of the Grand Duchy of Luxembourg (“NCAL”) of the transaction by which its subsidiary Munhowen SA (“Munhowen”) would acquire control over Boissons Heintz Sàrl (“Heintz”).

The NCAL held a meeting with the acquiring companies on January 10, 2024, and opened a period so that third parties could provide additional information on the concentration, which proved to be decisive. On January 17, 2024, a third party provided relevant information to the NCAL, and on January 25, the NCAL received a formal request to refer the case to the Commission. The NCAL submitted the request for a referral on February 7, and the Commission accepted it by decision dated March 14. Brasserie Nationale and Munhowen appealed the Commission’s decision to the GCEU.

Notwithstanding the appeal, the merger control procedure continued in parallel, and the Commission authorized the transaction on July 17, 2025 (case M.11845), but subject to commitments, including the divestment of Heintz’s activities in the beverage distribution market in the HORECA channel (hotels, restaurants and cafeterias), in addition to the brand name, the online store and the strategic import exclusivities.

The key issue: the concept of “made known” and the effects of the communication of a concentration on the referral system

The appellants argued that the request for referral had not been submitted within the 15-day period provided for in Article 22(1) of the Merger Regulation. Under this provision, this period begins to run from the date of notification of a concentration or, if notification is not mandatory, from the date the concentration is “made known” to the MS concerned. The companies contended that this occurred when they first informed the NCAL in December 2023. However, the GCEU has rejected this argument and upheld the Commission’s decision to accept the referral. In a nutshell, the GCEU has considered that the initial communication from the companies did not include the minimum information for the NCAL to conduct a preliminary assessment of the transaction or to consider a referral. Accordingly, the 15-day period only started to run once the NCAL had received the relevant information, i.e. from the intervention of the third parties, and the referral to the Commission was requested within the legal period.

In its reasoning, the GCEU analyses the notion of “made known” in the context of Article 22 of the Merger Regulation and concludes that it is not enough for a NCA to be aware of the existence of a transaction. In turn, the authority must receive sufficient information to enable a preliminary assessment of whether the conditions for a referral are met. The GCEU considers that the information required to that end must include all the necessary data to properly assess the concentration, and would be comparable to the information required in a notification form in MS with a merger control regime. This interpretation would be consistent with the principle of active transmission of relevant information in merger control and responds to the EU legislator’s intention to create an effective system that applies homogeneously across the Union.

The GCEU further emphasized that the responsibility for providing this information lies with the parties to the transaction, although it may also be supplied by third parties or other sources. NCAs are thus not obliged to proactively seek additional information and may remain passive until they receive the adequate data.

Conclusions and outlook

The judgment of the GCEU is subject to appeal to the CJEU, which appears to be likely. Should the judgment be upheld, this interpretation of Article 22 of the Merger Regulation would place an active duty on undertakings to provide sufficient information to NCAs in the absence of a national merger control regime, and would confirm that NCAs may remain passive until sufficient information is provided.

This case is distinguishable from Illumina/Grail, where the Commission encouraged MS to refer the case so that it enabled the Commission to examine the concentration, even when the transaction did not meet the thresholds for notification to the Commission or to any NCA. In that instance, the CJEU ruled against the Commission and held that Article 22 of the Merger Regulation should not be used as a method for the Commission to investigate non-notifiable transactions, but rather as a tool for MS lacking a merger control regime to address transactions likely to affect effective competition in their jurisdiction and, more broadly, the internal market.

In any event, this case underscores the importance of careful analysis and expert legal advice when designing the strategy for merger notifications, particularly —but not only— in jurisdictions without a merger control regime, or where call-in powers have been introduced to capture transactions below the ordinary notification thresholds.