The Europäischer Gerichtshof (EuGH, Court of Justice of the European Union, CJEU) has dismissed the appeal brought by a beverage manufacturer and its subsidiary against the European review of the acquisition of a beverage wholesaler (EuGH, judgment of 8 October 2026 – C‑572/25 P). The decisive issue was when a concentration not subject to mandatory notification had been made known to the competent competition authority within the meaning of Article 22(1), second subparagraph, of Regulation (EC) No 139/2004 (EU Merger Regulation). Mere knowledge of the existence of the proposed transaction does not trigger the 15-working-day time limit under the judgment.
Acquisition of Boissons Heintz by Brasserie Nationale
B., a beverage manufacturer, produces beer and mineral water in Luxembourg. Its wholly owned subsidiary M. distributes beverages wholesale in Luxembourg, France and Belgium. H. is likewise active in beverage wholesaling in Luxembourg.
On 31 January 2024, B. announced the completion of the transaction. M. had acquired all shares in wholesaler H., thereby giving B. sole control over the company.
No Regular Notification Requirement
The relevant turnover thresholds under Article 1 of Regulation (EC) No 139/2004 were not met. The concentration therefore did not have an EU dimension and did not have to be notified to the European Commission under Article 4(1) of that Regulation.
At that time, Luxembourg had no national merger control regime. Nor was notification required in any other Member State of the European Union or contracting state of the European Economic Area.
Referral to the European Commission
On 22 December 2023, B. informed the Luxembourg competition authority that M. intended to acquire H. A meeting between the companies concerned and the authority took place on 10 January 2024.
From 17 January 2024 onwards, the authority received information about the transaction from third parties. On 25 January 2024, one of those third parties formally requested that the transaction be referred to the Commission under Article 22(1) of Regulation (EC) No 139/2004 and submitted supplementary information.
On 7 February 2024, the Luxembourg competition authority requested that the Commission review the concentration. By decision of 14 March 2024, the Commission accepted the referral request and informed Brasserie Nationale on the same day.
Requirements Under Article 22 of the EU Merger Regulation
Under Article 22(1), first subparagraph, of Regulation (EC) No 139/2004, one or more Member States may request the Commission to examine a concentration where:
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the concentration does not have an EU dimension within the meaning of Article 1 of the Regulation,
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it affects trade between Member States, and
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it threatens to significantly affect competition within the territory of the requesting Member State or Member States.
The request must be submitted no later than 15 working days after notification of the concentration. Where no notification is required, the time limit under Article 22(1), second subparagraph, begins when the concentration is made known to the Member State concerned.
The Luxembourg competition authority feared a significant adverse effect on competition in the beverage trade and restrictions on market access for foreign manufacturers. According to the Commission’s decision, the necessary information was available no earlier than 17 January 2024. The request received on 7 February 2024 had therefore been submitted within the applicable time limit.
Proceedings Before the Gericht der Europäischen Union
On 3 June 2024, B. and M. brought an action for annulment of the Commission’s decision before the Gericht der Europäischen Union (General Court of the European Union).
Following the hearing in early March 2025, the Gericht der Europäischen Union dismissed the action by judgment of 2 July 2025. The companies had raised eight pleas in law. The second plea concerned whether the 15-working-day time limit had been observed.
Requirements for a Communication
The Gericht der Europäischen Union interpreted the term “communication” by reference to the wording, context, purpose and legislative history of Article 22(1), second subparagraph. Due to differences between the various language versions, its meaning could not be determined solely from the wording.
According to the Gericht der Europäischen Union’s interpretation, a communication must, as a matter of form, consist of the active transmission of relevant information to the competent authority of the Member State concerned. In terms of substance, the information must be sufficient to enable the authority to carry out a preliminary assessment of whether the conditions for a referral request are met.
The source of the information is irrelevant. It may be actively provided by the companies concerned, by third parties or from another source. Mere information about the existence of the transaction, by contrast, is insufficient.
Effectiveness of the Referral Procedure
The Gericht der Europäischen Union emphasised that the national authority must assess within a particularly short period whether the conditions laid down in Article 22(1), first subparagraph, are met. If mere knowledge of a concentration were sufficient to trigger the time limit, the authority would have to obtain extensive information itself within 15 working days.
In the Gericht der Europäischen Union’s view, such an interpretation would create a considerable administrative burden and could deprive the referral mechanism of its practical effectiveness. Article 22 therefore does not require national competition authorities, upon becoming aware of a transaction, to actively investigate all information necessary for a possible referral.
At the same time, the Gericht der Europäischen Union found that this did not create a de facto notification requirement. A communication differs from a formal notification in terms of its form, content and purpose.
Legal Certainty Regarding the Start of the Time Limit
The Gericht der Europäischen Union also considered its interpretation compatible with the principle of legal certainty. The time limit begins upon the active transmission of sufficient information and therefore does not depend on unpredictable circumstances such as the availability of publicly accessible information.
The companies participating in a concentration may provide the authority with the information necessary for a preliminary assessment. Once the time limit thereby triggered has expired, no referral request may be submitted.
The Gericht der Europäischen Union found no evidence that a sufficient communication had been made before 17 January 2024. It therefore did not object to the Commission’s use of that date as the start of the time limit. The objections alleging an inadequate examination of the time limit and breaches of the principles of legitimate expectations and legal certainty were likewise unsuccessful.
Appeal Before the Europäischer Gerichtshof
On 29 August 2025, B. and M. appealed against the judgment of the Gericht der Europäischen Union. The appeal was based on a single ground of appeal divided into two parts.
The companies sought to have the judgment set aside insofar as the Gericht der Europäischen Union had misinterpreted the concept of communication and upheld the Commission’s calculation of the time limit. They also sought annulment of the Commission’s decision of 14 March 2024.
The ground of appeal concerned:
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in its first part, the interpretation of the communication to the Member State concerned,
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in its second part, the calculation of the 15-working-day time limit.
The Commission, the Luxembourg competition authority and A., which supported the Commission, sought dismissal of the appeal and an order requiring the appellants to pay the costs.
EuGH Upholds the Gericht der Europäischen Union’s Interpretation
The EuGH endorsed the interpretation adopted by the Gericht der Europäischen Union. A communication under Article 22(1), second subparagraph, must enable the competent authority to make a preliminary assessment of whether the proposed transaction affects trade between Member States and threatens to significantly affect competition within the territory of the requesting Member State.
No Mandatory Prerequisite for a Referral Request
The appellants argued that the Gericht der Europäischen Union had incorrectly treated the communication as a mandatory prerequisite for a referral request. The EuGH held that this argument was based on a misreading of the judgment at first instance.
The Gericht der Europäischen Union had merely determined the requirements that a communication must satisfy if it is to trigger the time limit. It had not ruled that such a communication was a necessary prerequisite for submitting a referral request.
Mere Knowledge Does Not Trigger the Time Limit
According to the judgment, Article 22(1), second subparagraph, must be read together with the first subparagraph. Since the national authority must assess the conditions set out there within 15 working days, it needs sufficiently complete information.
Mere knowledge of the existence of a concentration is insufficient for that purpose. Otherwise, the authority would have to deploy considerable resources within a very short period to obtain the facts needed for its assessment. This could impair the effectiveness of the referral mechanism.
The EuGH did not consider this to confer a right to remain inactive on national competition authorities. The interpretation merely rules out the possibility that knowledge of the existence of a concentration alone triggers the time limit.
Information Also Serves the Commission
The information transmitted is relevant not only to the national authority’s decision on whether to submit a referral request. It also enables the Commission to assess whether it wishes to examine the concentration.
Under Article 22(3) of Regulation (EC) No 139/2004, the Commission has ten working days for that purpose following expiry of the period within which other Member States may join the request. In the EuGH’s view, this short period also supports the conclusion that the communication must contain sufficient information for a preliminary assessment.
No Breach of the Principle of Legal Certainty
The EuGH further confirmed that this interpretation complies with the principle of legal certainty. The start of the time limit depends on a verifiable event: the active transmission of information sufficient for an initial assessment of the relevant conditions.
The contrary view would make the start of the time limit dependent on uncertain circumstances. In particular, it would be unclear when an authority first became aware of a transaction through publicly available or other information.
Objection Concerning the Distinction Between Notification and Communication
The appellants also complained that the Gericht der Europäischen Union had conflated the concepts of notification and communication. A communication, they argued, must be less formal than a notification.
The EuGH dismissed this complaint as inadmissible. The Gericht der Europäischen Union had explained why a communication differs from a mandatory notification in terms of its form, content and purpose. In the EuGH’s view, the appellants had failed to identify specifically the error of law allegedly affecting that part of the reasoning.
The first part of the sole ground of appeal was therefore dismissed as partly inadmissible and otherwise unfounded.
Calculation of the Time Limit Remains Unchanged
In the second part of their ground of appeal, B. and M. argued that the Luxembourg competition authority had received the required communication no later than 10 January 2024. The referral request had therefore been submitted after expiry of the time limit.
This objection depended directly on the interpretation of the concept of communication. Since the EuGH upheld the interpretation adopted by the Gericht der Europäischen Union, it also dismissed the second part of the ground of appeal as unfounded. The appeal was therefore unsuccessful in its entirety.
Costs and Further Development of the Transaction
In addition to bearing their own costs, B. and M. must pay the costs incurred by the European Commission, the Luxembourg competition authority and A.
Merger control clearance was granted in Phase I subject to the divestment of H.’s on-trade activities. The Commission approved Belgian beverage wholesaler Y. as the purchaser of the divestment business. The Commission had also identified a serious risk that the merged entity could foreclose competing water manufacturers in favour of the L. brand.
On 12 January 2026, M. announced that it had transferred H.’s supply activities for hotels, restaurants and cafés to the Belgian group Y. The latter continues those activities under the H. brand.
Significance for European Merger Control
The judgment clarifies when the 15-working-day time limit begins for concentrations that are not subject to mandatory notification. Mere knowledge of the proposed transaction is not decisive. Instead, there must be an active transmission of sufficient information enabling the national authority to make a preliminary assessment of the conditions laid down in Article 22(1), first subparagraph.
A referral to the Commission therefore remains possible even for transactions that neither meet the European turnover thresholds nor fall within a national merger control regime. For legal questions concerning the implications of this judgment and European competition law, MTR Legal offers competition law advice tailored to the circumstances of the individual case.
