Control of the acquisition of emerging technology companies: a major challenge, a regulatory framework in need of redefinition[Le contrôle de l’acquisition des entreprises technologiques naissantes : un enjeu majeur, un cadre réglementaire à redéfinir]

The acquisition of young technology start-ups by dominant companies calls for a change in the rules applicable to the control of company mergers and acquisitions in force in the European Union. The thresholds triggering the competence of the authorities, expressed in terms of the turnover of the Parties to the operation, are inoperative when the target is a technology company valued before it has any customers. The European Commission, aware of the risk of unchecked capture of associated technological innovations, had believed it could exercise its jurisdiction on the basis of a questionable interpretation of existing provisions. In a ruling of September 3, 2024, the Court of Justice of the European Union (CJEU) put an end to this practice. It ruled that only transactions crossing the national threshold can be examined by the Commission, upon referral from the State concerned. In doing so, the CJEU did not resolve the underlying issue: emerging technology companies could be acquired by powerful companies eager to strengthen their dominance, without any control. Analyzing the precise meaning of the CJEU ruling, the avenues it opens up and the initiatives already taken by certain States, the article recommends the adoption of criteria adapted to the context of acquisitions of technology companies, with a focus on intervention at the European level rather than at the level of the Member States.