Judgment of the Court (Second Chamber) of 16 March 2023 (request for a preliminary ruling from the cour d’appel de Paris – France) – Towercast v Autorité de la concurrence, Ministre chargé de l’économie

(Case C-449/21, ¹ Towercast)

(Reference for a preliminary ruling – Competition – Control of concentrations between undertakings – Regulation (EC) No 139/2004 – Article 21(1) – Exclusive application of that regulation to operations covered by the concept of ‘concentration’ – Scope – Concentration operation which has no Community dimension, is below the thresholds for mandatory ex ante control laid down in the law of a Member State and has not been referred to the European Commission – Control of such an operation by the competition authorities of that Member State in the light of Article 102 TFEU – Whether permissible)

Language of the case: French

Referring court

Cour d’appel de Paris

Parties to the main proceedings

Applicant: Towercast SASU

Defendants: Autorité de la concurrence, Ministre chargé de l’économie

Other parties: Tivana Topco SA, Tivana Midco SARL, TDF Infrastructure Holding SAS, TDF Infrastructure SAS, Tivana France Holdings SAS

Operative part of the judgment

Article 21(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings

must be interpreted as not precluding the competition authority of a Member State from regarding a concentration of undertakings which has no Community dimension within the meaning of Article 1 thereof, is below the thresholds for mandatory ex ante control laid down in national law, and has not been referred to the European Commission under Article 22 of that regulation, as constituting an abuse of a dominant position prohibited under Article 102 TFEU, in the light of the structure of competition on a market which is national in scope.

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¹ OJ C 452, 8.11.2021.