More than half a century after the implementation of merger control with the Restriction of Competition Act in 1973 in Germany, Luxembourg is the last EU member state without national legislation on the subject.
"The problem is not that we are the last member state not to have local control, but that it is an element of legal certainty for market players", according to , a lawyer at Elvinger Hoss Prussen and chair of the Luxembourg Competition Association (ALEDC).
"There is a misunderstanding about the impact of such regulation,” Veranneman stated in an interview. “There's this idea that it puts the brakes on all transactions, on mergers and acquisitions, whereas when you look at other member states, I'm not sure it's such a brake. It's one more rule that has to be taken into account, but this control is always focused on the impact on the local market. The bill provides for turnover thresholds on our local market. If we have transactions involving entities that exist in Luxembourg but which are not really operational or which do not generate any turnover here, they are not affected.”
What the twenty or so lawyers specialising in competition law in Luxembourg expect is "a clear framework. At present, there are means available if a merger is suspected of having a significant negative impact on competition. It is possible for the [competition] authority, which does not have the competence itself, to ask the European Commission to carry out the examination on its behalf. This is a mechanism with a great deal of uncertainty: how it is triggered, how the procedure unfolds, etc. Another possibility is for the transaction to be examined under the rules on abuse of a dominant position, but the standards of proof are very high. There would have to be no competition left for us to intervene, and the investigations could take a long time! A merger control regime, on the other hand, gives the authority time to act.
Presented on 18 July 2023 by the former minister for the economy, (LSAP), the introduction into national law of a system for checking concentrations between companies, such as mergers, acquisitions or the creation of certain joint ventures, with a link to Luxembourg, is continuing to make headway: six notices have been published, including only two this year (in August for the Luxembourg Bar and in March for the Chamber of Commerce). According to Valdani Vicari & Associati, in an analysis commissioned by the previous government, this ex ante control would concern 13 to 28 transactions per year and would require additional resources for the Luxembourg Competition Authority (from 8 to 17 full-time equivalents).
"Competition law in Luxembourg is not isolated," said Veranneman. "The European Commission, as the main player, relies on cooperation with the national authorities. Pursuing anti-competitive practices is key to a healthy economy at all levels.
"There is a great deal of technical expertise in the field of competition law, particularly because competition law has to deal with the impact of new technologies and digital markets. Specific tools have been developed at European level. Here again, the national authority has powers to assist the European authority in prosecuting infringements, including specific powers over digital services, which are not in themselves a competition law tool but which have been given here to the Competition Authority".
Merger reviews will be the subject of a round table discussion on 16 October at the seventh Competition Law Day, organised at the Chamber of Commerce and featuring a number of topical issues on the agenda.
The programme
14:00-14:15: Welcome by the Chamber of Commerce, followed by the chair of the ALEDC, Katrien Veranneman.
2.15pm-2.45pm: keynote speech by Pierre Barthelmé, chair of the Luxembourg Competition Authority.
2.45pm-3.15pm: speech by Paul Nihoul, judge at the General Court of the European Union, entitled "Object and effect in competition law: the construction of case law".
3.15pm-4pm: roundtable: "Merger control and the impact of the Towercast and llumina/Grail cases: the state of play", moderated by Veranneman; with Sven Frisch, member of the Luxembourg Competition Authority; Yves Van Gerven, director of legal affairs at the Belgian Competition Authority, and , partner at Arendt & Medernach.
4.45pm-5.15pm: "Les restrictions verticales territoriales revisitées à l'aune de la décision Mondelez", by Vincent Wellens, avocat à la Cour.
5.15pm-5.45pm: "Competition law and the labour market: a new frontier?" by Céline Marchand, avocat à la Cour.
6pm: Conclusions and networking drink.
The conference will be held in French. Registration information . Read the original French-language version of this interview .