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Absence of an ex-ante Merger Control in Luxembourg

By judgment rendered on 25 January 2021 [1], the Administrative Tribunal (“Tribunal”) dismissed the appeal lodged by the Fédération des Artisans against the decision rendered on 15 March 2019 [2] by the Competition Council which rejected its complaint concerning mainly the takeover of the company Paul Wagner & Fils S.A. by the company Encevo S.A..

The Tribunal considered in particular that it could not take into consideration new evidence concerning public contracts presented before it for the first time by the Fédération des Artisans and not presented for prior review to the Competition Council, indicating however that the claimant had the opportunity to seize the Competition Council based on new facts.

By its judgment, the Tribunal ruled for the first time on merger control under Luxembourgish law and on the jurisdiction of the Competition Council concerning merger control. Indeed, Luxembourgish competition law does not provide for an autonomous merger control mechanism. The Tribunal therefore considered that the Competition Council does not have the power to carry out a purely preventive merger control. The Competition Council can only carry out merger control based on concrete elements (concrete abuses) and as part of its role to scrutinise and control compliance of the market with the provisions concerning abuses of a dominant position.

In order to fill this legal loophole, it would be advisable to amend the bill n° 7479 [3] on the organization of the National Competition Authority and repealing the Competition Act of 23 October 2011, currently under legislature review, in order to empower the Luxembourg Competition Council with a mechanism to carry out preventive merger control.




For further information and/or advice on competition issues, feel free to contact our competition team:

Gabriel BLESER, Partner

Giulia JAEGER, Counsel

Clémence PATTE, Associate

This publication is for general guidance only and does not constitute definitive legal advice.

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