Luxembourg: no prior merger control but acquisitions leading to a hyper-dominance can be prohibited as an abuse of dominance within the meaning of Article 102 TFEU
Luxembourg is the only country in the European Union ("EU") that has no prior merger control system. In principle, acquisitions do not fall within the scope of antitrust rules (prohibition of anticompetitive agreement and abuse of dominance). For instance, acquisitions can certainly lead to a dominant position but the mere attainment of such position does not in itself constitute an abuse within the meaning of Article 102 of the Treaty on the Functioning of the European Union ("TFEU").
At several occasions, questions have been raised as to the applicability of the so-called Continental Can doctrine in absence of any prior merger control in Luxembourg. According to the ECJ judgment in Case 6/72 Europemballage and Continental Can v Commission ([1973] ECR 215, paras 26 and 27), acquisitions can amount to an abuse of dominant position if the acquisition is likely to strengthen the existing dominant position of an undertaking in such a way that the degree of dominance reached “substantially fetters competition”.
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