Hard Brexit date is cut-off for merger threshold calculations, EU Commission says

Merging companies seeking to determine whether they need to file their deal for EU review after a no-deal Brexit should include their UK revenues under the EU umbrella if their tieup was announced before exit day, the European Commission said today.

"The relevant date for establishing EU jurisdiction over a concentration … is the date of the conclusion of the binding legal agreement, the announcement of a public bid or the acquisition of a controlling interest or the date of the first merger notification, whichever date is earlier," it said.

The commission today published a notice giving "guidance only on the main implications that can be foreseen of a no-deal scenario for the application of EU competition law."

The commission notes that after a no-deal Brexit it will no longer be able to assess the competition effects of a merger in the UK. But "new tariffs and non-tariff barriers ... may have a bearing on the commission's competitive assessment."

The notice also discusses situations where companies are requesting that a merger that does not meet the EU thresholds should nonetheless be referred to the commission.

Such referrals can occur where the merger is reviewable in at least three EU countries and if no national authority objects within 15 working days of the request being made.

Such requests, where the UK is one of the jurisdictions, will remain valid so long as the 15 days have expired by the day the UK leaves the EU, the notice says.