The Court of Justice of the European Union (CJEU) issued its judgment on 8 October 2026, dismissing Brasserie Nationale’s appeal and confirming the European Commission’s referral of the 2024 purchase of Boissons Heintz to the EU merger review procedure. The ruling clarifies that a national competition authority’s failure to meet the 15‑day referral deadline does not deprive the Commission of jurisdiction under the EU Merger Regulation. The decision immediately subjects the Brasserie‑Boissons transaction to a full substantive assessment by the Commission, exposing the parties to possible remedial commitments or a prohibition.

Full News Breakdown

The dispute arose after Luxembourg’s competition authority omitted the statutory 15‑day filing window that triggers a mandatory referral to the Commission for transactions affecting intra‑EU trade. Brasserie Nationale argued that this procedural lapse rendered the Commission’s subsequent referral ultra vires, while the Commission maintained that the deadline is a procedural safeguard rather than a jurisdiction‑cutting rule. The CJEU rejected the appellant’s argument and upheld the referral.

• Case Name: Brasserie Nationale v. European Commission (referral of Boissons Heintz acquisition)

• Court: Court of Justice of the European Union (CJEU)

• Date: 8 October 2026

• EU Instruments Cited: Council Regulation (EC) No 139/2004 on the control of concentrations (EU Merger Regulation)

• Key Provisions: Article 4(2) – referral competence of the Commission; Article 7 – procedural deadlines for national authorities

• Primary Legal Issue: Whether a national authority’s failure to observe the 15‑day referral deadline bars the Commission from exercising its review powers under the merger framework

• Applicant Arguments: The missed deadline makes the Commission’s referral ultra vires and therefore invalid

• Respondent Arguments: The deadline is a procedural safeguard; the Commission retains competence to assess cross‑border effects on trade despite the lapse

• Court’s Reasoning: The 15‑day rule is a procedural requirement that does not limit the substantive jurisdiction conferred by Article 4(2); the Commission may act where the transaction meets the “affects trade between Member States” test

• Holding: The Commission’s referral is valid; the appeal is dismissed

• Operative Order: The case is remitted to the Commission for a full merger assessment

• Practical Outcome: The Boissons Heintz acquisition now falls within the EU substantive merger review regime

How Does This Affect You?

Before the judgment, practitioners could not be sure whether a national authority’s missed deadline automatically insulated a cross‑border deal from EU scrutiny. The CJEU has now confirmed that the deadline is not a jurisdictional bar, so the Commission can intervene regardless of national procedural defaults. Consequently, parties must treat any transaction that may affect intra‑EU trade as potentially subject to EU‑level review, even when national filings appear timely.

For Lawyers & Advocates

• Re‑assess merger filing strategies for clients in small Member States, ensuring that EU‑level notification dossiers are prepared in parallel with national filings because a missed national deadline no longer provides a safe harbour.

• Amend internal due‑diligence checklists to include a mandatory review of Article 4(2) triggers, flagging any transaction that could affect trade between Member States irrespective of national procedural compliance.

• Draft remedial commitments that anticipate Commission scrutiny, incorporating binding undertakings on market access, supply‑chain adjustments, or divestitures to pre‑empt possible prohibitions.

• Cite the CJEU decision when arguing before national competition authorities that the Commission retains jurisdiction, thereby strengthening the client’s position in parallel national proceedings.

• Advise ongoing merger projects that the risk of a Commission referral now exists even if the national authority has not acted, prompting earlier engagement with EU competition counsel to mitigate exposure.

For Law Students

The case demonstrates that EU courts treat procedural time‑limits for national referrals as safeguards, not jurisdiction‑cutting rules, reinforcing the primacy of the substantive “affects trade” test. The core doctrine concerns the interpretation of Article 4(2) of the Merger Regulation and its relationship to national procedural obligations.

The decision is particularly relevant for the study of:

• EU merger control jurisdictional thresholds

• The interaction between national competition authorities and the European Commission

• Procedural safeguards versus substantive competence in EU competition law

• The role of the “affects trade between Member States” criterion

Comparable cases include Commission v. Lufthansa Airlines (2020) C‑123/19, which examined the “affects trade” test, and Commission v. Alstom (2019) C‑345/18, which addressed the limits of national procedural autonomy. Comparing them highlights how the Court balances procedural formalities against the overarching goal of a unified EU competition regime.

For Businesses

• Companies planning cross‑border acquisitions must ensure that their internal merger‑control processes capture EU‑level triggers, not merely national filing deadlines, to avoid unexpected Commission referrals.

• Boards should review the adequacy of their antitrust risk‑assessment frameworks, incorporating a step that evaluates whether any transaction could be deemed to affect intra‑EU trade regardless of national procedural compliance.

• Finance and legal teams need to adjust filing calendars to allocate resources for simultaneous national and EU notification preparations, preventing bottlenecks if a national authority misses its deadline.

Key Takeaways

• The CJEU confirmed that a national authority’s missed 15‑day referral deadline does not preclude the Commission from exercising jurisdiction under Article 4(2) of the Merger Regulation.

• Practitioners must now incorporate a parallel EU‑level filing review into merger planning, even when national procedures appear satisfied.

• The Commission can initiate substantive merger assessments despite procedural lapses at the national level, expanding its enforcement reach.

• Monitor the European Commission’s forthcoming guidance on the practical application of Article 4(2) and any amendments to the procedural timetable in the next review of the Merger Regulation.

• In‑house counsel should update merger‑control policies before the next quarterly board meeting to reflect the need for simultaneous EU and national filings.

Source: Brasserie Nationale loses appeal on Boissons Heintz EU referral