Ex-Post Merger Control in Germany: New Risks and Implications after Towercast

In recent years, the M&A landscape in Germany and the EU has seen growing attention from competition authorities. Traditionally, the focus was on mandatory pre-merger notifications and approvals to ensure that a transaction complies with antitrust law before completion. However, the recent Towercast ruling by the European Court of Justice has highlighted that there can still be regulatory risks even after a deal has closed if it significantly restricts competition.

At its core, the Towercast decision confirms that national competition authorities have the power to review mergers and acquisitions ex post, even if they were not subject to mandatory prior notification under the EU Merger Regulation or national merger control laws. The legal basis for this is the prohibition of abuse of a dominant position under Article 102 TFEU. This ruling effectively extends the scope of scrutiny beyond traditional turnover thresholds.

In practice, this means that companies should not rely solely on meeting notification thresholds when assessing deal risks. Instead, they need to analyse whether a transaction might create or strengthen a dominant market position that could distort competition. Even deals that have been fully implemented may be challenged later and may be unwound or modified, leading to significant legal and financial uncertainty.

As a result, it is highly advisable to identify potential competition concerns early in the transaction planning process to avoid costly regulatory interventions down the line. Transaction documents should include appropriate clauses to allocate risks and address possible post-closing measures by authorities. The Towercast ruling clearly demonstrates that merger control in Germany and the EU is becoming more dynamic, and careful antitrust planning is now essential to protect investments and business operations in a sustainable way.