(Re-)reviewing mergers under Article 102 TFEU? An overview of ex post merger policy in the EU

The Court affirmed the continued applicability of Article 102 TFEU to mergers in Towercast. This paper explores the relationship between the Merger Regulation and Article 102 TFEU from a historical and hierarchy of norms perspectives. It evaluates the implications of Towercast for the role of Article 102 TFEU within the EU merger control framework. From a hierarchical norms perspective, the continued applicability of Article 102 TFEU to non-notifiable mergers is a logical outcome. This perspective supports the possibility of re-reviewing cleared mergers under Article 102 TFEU. Re-reviews are likely a rare occurrence, with most ex post interventions targeting non-notifiable mergers. Ex post merger policy may serve as a valuable corrective mechanism to the Merger Regulation, allowing the correction of missteps in clearance decisions and ensuring that mergers that initially escaped scrutiny are addressed. The effectiveness of the system is constrained by procedural limitations due to the exclusion of Regulation 1/2003.