![]() While the CJEU first refers to satisfying “the conditions laid down in Article 102 TFEU for establishing the existence of an abuse of a dominant position,” it adds that, “in particular, it is for the authority in question to verify that a purchaser who is in a dominant position on a given market and who has acquired control of another undertaking on that market has, by that conduct, substantially impeded competition on that market.” ![]() ![]() One of the key questions that arose in the Towercast case is what is the conduct that constitutes the abuse in such circumstances. By confirming that Article 102 TFEU can be flexed to tackle below threshold deals, the Towercast judgment arguably plugs yet another (perceived) enforcement gap, following the landmark Illumina/Grail decision last year confirming (for now) the legality of the Commission’s revised, expansive policy on Article 22 (see our previous blog here). The judgment confirms that the EU’s abuse of dominance rules can be used to challenge, post completion, acquisitions which fell below merger control review thresholds of the European Commission and EU national merger regimes. The European Court of Justice ( CJEU) handed down its judgment in Towercast on 16 March 2023, confirming Advocate General Juliane Kokott’s Opinion from October 2022 that the prohibition on abuse of dominance under Article 102 TFEU is applicable to certain non-reportable mergers by dominant firms (covered in our previous blog here).
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