CJEU ruling on Article 22 EUMR referrals: mere courtesy call not enough to get referral clock ticking?

On 8 October 2026, the European Court of Justice (ECJ) issued its ruling in C-572/25 P – Brasserie Nationale, upholding the General Court’s (GC) earlier judgement (T-289/24) addressing the question when a concentration is “made known” under Article 22 of the EU Merger Regulation (EUMR). The moment of “making known” is crucial as it triggers the 15 working day deadline in which Member States can refer transactions for review by the European Commission under Article 22. 

The test is now confirmed: parties seeking to trigger the deadline must actively provide the authorities with information sufficient to carry out a preliminary assessment of whether the deal affects trade between Member States and threatens competition in the Member State concerned. Mere awareness that a deal exists is not enough, and authorities are under no duty to request or search for information.

The judgement puts the burden of starting the clock on the parties, who may in practice need to proactively “notify” deals even where no formal filing is required. This blogpost explores the practical implications of the ECJ’s ruling and includes key takeaways for businesses seeking legal certainty.

Background

In January 2024, Brasserie Nationale, Luxembourg's beer and mineral water producer, acquired sole control of Boissons Heintz, a local wholesale drinks distributor, through its subsidiary Munhowen. As Luxembourg has no merger control regime and the deal was below the EU thresholds, the only route to a merger control review of the transaction was a referral to the Commission under Article 22 EUMR, which must be made within 15 working days of the deal being “made known” to the Member State. 

Brasserie Nationale contacted the Luxembourg Competition Authority (ACL) in December 2023 and informed the authority about the transaction during a meeting on 10 January 2024. One week later, third parties contacted the ACL with more information about the deal, voicing their concerns. Brasserie Nationale completed the transaction on 31 January 2024. However, a week later, on 7 February, the ACL made an Article 22 referral request. This gave rise to a dispute: did the 15 working day deadline start when Brasserie Nationale disclosed the existence of the deal to ACL, meaning that the referral request was made beyond the deadline, or only when the ACL received detailed information from third parties? 

The Commission sided with the ACL, accepting the referral on 14 March 2024. Brasserie Nationale and Munhowen sought the annulment of the Commission’s referral decision by the GC and, when the GC sided with the Commission, appealed the GC’s judgment to the ECJ. The ECJ sided with the GC and the Commission, setting a high bar that must be met for a deal to be “made known” to competition authorities. 

“Making a transaction known” according to the ECJ and in practice

Under Article 22 EUMR, the 15 working day deadline for a referral to be made is triggered when the transaction is “made known” to regulators. This simple phrase hides two key ambiguities:

• Who is responsible for informing authorities: Does someone have to actively inform the authorities, or can the deadline be triggered by the authorities learning about the transaction from public sources?
• How much information is required: Is mere awareness of the transaction enough, or is more information needed to trigger the deadline?

According to the GC – and confirmed by the ECJ – “making known” requires:

• an active transmission of information by the merging parties, competitors, or any third parties, to the competent authority of the Member State concerned, and that
• information must be sufficient to enable the authority to carry out a preliminary assessment of the transaction.

While this test seems straightforward on paper, the “simple” test hardly brings legal certainty and increases the burden on businesses:

• Only actively transmitted information counts. Transaction parties can start the deadline only by actively relaying the necessary information to the authority, irrespective of whether the authority knows the markets well or can easily find the information itself.
• There is no clear guidance on how much information is required. The ECJ’s judgment does not provide any clear guidance on what information needs to be transmitted to the authority. The GC’s judgment notes that the information ”may, for example, consist of a simple note and merely state briefly the information enabling the conditions laid down in the first subparagraph of Article 22(1) of Regulation No 139/2004 to be assessed, such as the concentration concerned, the parties to that concentration, the markets affected, the impact on trade between Member States and the impact of the concentration on competition in the territory of the Member State concerned”. In practice, a note covering all this information will seldom be simple and for complicated transactions may amount to a full-blown briefing paper.

Practical takeaways

When a transaction falls below the EU and national merger control thresholds but may be subject to a call-in at Member State level, the following key takeaways should be considered in relation to the “made known” standard under Article 22 EUMR:

• Consider sending a briefing paper to all Member States that could make a referral. No form is required, but the briefing paper should allow a preliminary assessment of the referral conditions. That means the paper should cover the transaction, the parties, the affected markets, the effect on trade between Member States and the likely impact on local competition.
• Put it in writing. A meeting with the relevant authority is not enough unless it meets the criteria set by the GC and ECJ. In the case of Brasserie Nationale, the minutes of a meeting with the ACL on 10 January were used to show that no sufficient information had been given.
• Do not rely on what the authority already knows. Press coverage, earlier sector inquiries and the apparent simplicity of a deal do not impact the amount of information parties have to provide.
• Keep records. Parties may need to prove what was sent and when, first to the Commission and then before the EU Courts. 
• Do not read silence as approval. The authority has no duty to ask for more information. Its silence does not mean the referral window has lapsed.
• Engage with the authorities. While authorities may be unlikely to concede they have enough information to start the 15-day deadline, parties should proactively engage with the authority and provide more information if the authorities seem to have doubts. In the present case, the ACL expressly confirmed it did not have enough information to assess the deal.
• Expect third parties to act. Competitors can also send information and start the clock. Parties who wait lose control of the timing.

Despite the ECJ’s assertion that the moment of “making known” is now “clearly defined” and can be triggered by a “simple note” shared with the authority, transaction parties should not underestimate the information that needs to be made available to the authority to ensure the 15 working day deadline for an Article 22 referral starts.

Beyond this case: Luxembourg and Member States with call-in powers 

According to the GC’s judgement upheld by the ECJ, the ruling’s scope remains limited to Luxembourg, the only Member State without a merger control regime where “making a transaction known” is the only way to start the clock. If this were true, the impact of the Brasserie Nationale judgment would be short-lived, as Luxembourg is moving to adopt a merger control regime of its own. 

In reality, the GC’s judgement may be much more impactful and raises the stakes in the pending appeal against the Commission’s decision in Nvidia/Run:ai, which concerns Italy’s Article 22 referral of a transaction on the basis of call-in powers. Should the EU Courts rule that transactions falling below national notification thresholds can be referred under Article 22 as long as they can be called-in at the national level, the concept of “making a transaction known” to authorities would become relevant for a larger number of cross-border transactions falling below traditional notification thresholds for which there is a real risk of call-in.

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