Short answer
A transaction must be notified to the European Commission under Council Regulation (EC) No 139/2004 (the EU Merger Regulation, or EUMR) when two conditions coincide. First, it must be a “concentration”: a merger, acquisition of control or full-function joint venture producing a lasting change of control. Second, the undertakings concerned must satisfy either set of turnover thresholds in Article 1, after the allocation and calculation rules in Article 5 are applied. A qualifying concentration must normally be notified before closing and cannot be implemented until cleared.
Falling below the EUMR thresholds does not end the analysis. National laws may require filings or permit call-ins. A transaction reviewable in at least three Member States may be referred voluntarily to the Commission under Article 4(5). Article 22 can also support Commission review, but the referring state's position matters: Illumina/Grail excludes a state whose merger-control rules do not cover the deal, while a state with no national merger-control system may still use the mechanism. A dominant buyer may also face ex-post Article 102 TFEU scrutiny under Towercast. Designated digital gatekeepers have a separate duty to inform the Commission of certain acquisitions.
What makes a transaction a notifiable concentration?
Turnover is not the first question. Article 3 EUMR requires a lasting change of control through a merger or acquisition. “Control” means the possibility of decisive influence through shares, assets, contracts, veto rights or other legal and factual circumstances. A minority investment can therefore qualify without buying 100% of the target, but commercial importance alone is insufficient. A joint venture qualifies when it performs, on a lasting basis, all the functions of an autonomous economic entity.
The principal Article 1 threshold is expressed as follows:
“A concentration has a Community dimension where: (a) the combined aggregate worldwide turnover of all the undertakings concerned is more than EUR 5000 million; and (b) the aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than EUR 250 million, unless each of the undertakings concerned achieves more than two-thirds of its aggregate Community-wide turnover within one and the same Member State.”
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This is now called an EU dimension, although the Regulation says “Community dimension”. Article 1(3)’s alternative requires: EUR 2.5 billion combined worldwide; EUR 100 million combined in each of at least three Member States; EUR 25 million for each of at least two undertakings in those states; and EUR 100 million EU-wide for each of at least two. The two-thirds exception remains.
Article 5 governs the financial year, group attribution and special cases, including business parts, financial institutions and successive transactions. Misidentifying the “undertakings concerned” can change the result.
When must the Commission filing be made?
The trigger is pre-implementation notification, not a fixed number of days after signing:
“Concentrations with a Community dimension defined in this Regulation shall be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.”
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Earlier notification is possible on a demonstrated good-faith intention to conclude an agreement or announce a bid. Merger parties and joint acquirers notify jointly; a sole-control acquirer normally notifies.
Article 7 supplies the standstill rule: the concentration must not be implemented before notification or clearance. Signing is possible, but closing or transferring decisive influence generally is not. Conditional exceptions and Commission dispensations exist; premature implementation, or gun-jumping, remains a separate infringement risk.
Below the EU thresholds, national rules come first
The EUMR’s turnover tests allocate Commission jurisdiction; they are not a safe harbour from all merger review. Member States have their own rules, which may use lower turnover thresholds, transaction value, local activity, market share or statutory call-in powers. The assessment must therefore be country by country.
Where a concentration lacks an EU dimension but is reviewable in at least three Member States, Article 4(5) offers a voluntary one-stop-shop. Before national notification, the parties may request Commission examination. Any competent Member State may object within 15 working days. If none does, the transaction is deemed to have an EU dimension and is notified to the Commission instead.
What remains of Article 22 after Illumina/Grail?
Article 22 permits Member States to ask the Commission to examine a non-EU-dimension concentration affecting cross-border trade and threatening competition in the referring state. The request generally is due within 15 working days after notification or, if none is required, after the deal is made known to that state. In Brasserie Nationale and Munhowen v Commission, Case T-289/24, the General Court held that “made known” requires active transmission of enough information for the national authority to make a preliminary assessment; market publicity alone does not necessarily start the period.
For a period, the Commission treated Article 22 as permitting referrals even from Member States whose national merger rules did not give them jurisdiction over the transaction. The Court of Justice rejected that broad interpretation in its Grand Chamber judgment of 3 September 2024 in joined Cases C-611/22 P and C-625/22 P, Illumina v Commission:
“The Commission misinterpreted Regulation No 139/2004 by finding, in those decisions, that it could accept a request under Article 22 of that regulation in a situation where Member States making that request are not entitled, under their national merger control rules, to examine the concentration which is the subject of that request.”
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The limitation requires care. Illumina/Grail prevents a Member State that has national merger-control rules from referring a transaction that those rules do not entitle it to examine. But it did not abolish the original “Dutch clause” route for a Member State with no national merger-control system. In Brasserie Nationale, the General Court upheld a Luxembourg referral on that basis. A state may also refer where its applicable national rules, including a call-in power, give it jurisdiction. The Court of Justice further stressed that Member States may revise their own thresholds to capture innovative targets with little turnover.
Can a completed deal be challenged under Article 102 TFEU?
The Court of Justice recognised a separate, narrow ex-post route in Case C-449/21, Towercast. A national competition authority may apply Article 102 TFEU to an acquisition below both EU and national prior-control thresholds that was not referred under Article 22. But this is not ordinary merger review after the event.
“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. In that regard, the mere finding that an undertaking’s position has been strengthened is not sufficient for a finding of abuse.”
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The buyer must already be dominant and satisfy that abuse test. Towercast creates residual exposure, not a universal notification duty.
Digital gatekeepers have an additional information duty
Article 14 of Regulation (EU) 2022/1925, the Digital Markets Act (DMA), increases visibility of acquisitions by a designated gatekeeper:
“A gatekeeper shall inform the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004, where the merging entities or the target of concentration provide core platform services or any other services in the digital sector or enable the collection of data, irrespective of whether it is notifiable to the Commission under that Regulation or to a competent national competition authority under national merger rules.”
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This is information, not an EUMR clearance filing. The Commission shares it with national authorities, which may consider an Article 22 request. The DMA does not expand the referring authority available under Article 22 as interpreted in Illumina/Grail and Brasserie Nationale.
A transaction-screening checklist
Before deciding that no filing is required, establish:
- a lasting change of decisive influence or full-function joint venture;
- the undertakings and groups “concerned” for turnover;
- both Article 1 tests, two-thirds exception and Article 5 adjustments;
- each Member State’s filing and call-in routes;
- Article 4(5) eligibility;
- an eligible Article 22 referrer, the source of its authority and its deadline;
- purchaser dominance and Towercast risk;
- DMA gatekeeper status; and
- transaction conditions preserving Article 7 standstill.
Conclusion
Commission notification is mandatory when a lasting change of control is a concentration under Article 3 and satisfies either complete Article 1 turnover test. The parties must notify before implementation and respect the standstill obligation. Below those thresholds, the analysis shifts rather than ends: national filing and call-in rules, an Article 4(5) request, an Article 22 referral by an eligible state, narrow ex-post Article 102 scrutiny and the DMA gatekeeper information duty can all matter. The dependable answer comes from mapping control, turnover, local jurisdiction and timing together—not from checking the EU headline thresholds alone.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.