European Size of Transaction Tests within the EUMR's Case Referral System and the German-Austrian Guidance Paper

This unit was published in „International Cooperation of Competition Authorities in Europe: from Bilateral Agreements to Transgovernmental Networks” Błachucki, M., ed., (2020).

The acquistion of WhatsApp by Facebook in 2014 revealed that the internationally prevalent system of turnover-based merger control thresholds was struggling to cope with cases in the digital world in which merging parties, typically acquisition targets, do not generate sufficient turnover to fall under turnover thresholds of international merger control regimes. The German and Austrian legislators reacted by introducing new size of transaction tests in their merger control thresholds, with the German and Austrian competition authorities issuing respective guidelines in 2017/2018. In various jurisdictions and at the EU level, the question arose whether such thresholds should also be introduced, or whether it will suffice if Germany and Austria could control high value low turnover transactions and could refer them to the EU level under the existing EU Merger Regulation’s referral mechanism. This article sheds light on this debate. It explains the details of the German and Austrian size of transaction tests and the joint German-Austrian guidelines, and analyses how they, and the typical transaction value merger cases, fit into the referral mechanism of the EU Merger Regulation.