Last Thursday, the European Court of Justice clarified the concept of a ‘single concentration’ for merger control purposes (Joined Cases C 464/23 P, C 465/23 P, C 467/23 P, C 468/23 P and C 470/23 P).

The case concerned a complex asset swap between the German energy companies RWE and E.ON by means of three concentration operations. The first and second concentration operation were approved by the European Commission while the third one was approved by the German Federal Competition Authority. Eleven German municipal authorities challenged the two Commission approval decisions before the General Court and subsequently before the Court of Justice claiming that the three concentration operations constitute a single concentration and ought to have been examined by the European Commission in the context of one single merger control procedure at EU level.

In its judgment the Court clarified that two or more transactions may constitute a single concentration for merger control purposes only if, “in addition to their necessary interdependence, they lead to conferring sole control on an undertaking, or joint control on two or more undertakings, over one or more other undertakings.” In light hereof, the Court stated that the concept of a ‘single concentration’ cannot apply if independent undertakings gain control of different targets, which is for example the case in an asset swap. The Court thereby confirmed the interpretation given by the General Court to this concept.

𝐌𝐨𝐫𝐞 𝐢𝐧𝐟𝐨? Read the full text of the judgment here.

𝐀𝐧𝐲 𝐪𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? If you have any questions, please feel free to contact Herlinde Burez, competition partner, or Laura Sente, senior associate.

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