Think you are below the radar? EU competition authorities expand scrutiny of below-threshold M&A deals

In a merger control environment that has been steadily evolving over the past several years, M&A parties can less and less rely solely on traditional notification thresholds to assess filing obligations and antitrust risk. While the Illumina/Grail judgment limited the European Commission's ability to review below-threshold deals, the European Commission has made clear — most recently through statements by the new Competition Commissioner Teresa Ribera — that such transactions remain very much within its focus. The European Commission has reaffirmed its commitment to scrutinising non-reportable transactions, and is actively encouraging national competition authorities to adopt or expand call-in powers. At least 15 Member States are expected to introduce or enhance such powers in 2025, reflecting a broader EU-wide shift. Coupled with continued reliance on Article 22 EUMR and a wider interpretation of Articles 101 and 102 TFEU to challenge completed transactions, this landscape creates heightened legal uncertainty for M&A transactions that would previously have escaped review. This alert unpacks the current state of play and provides an outlook as to how the regulatory landscape for non-reportable transactions may evolve.

Key takeaways:

• Dealmakers beware! Managing the risk of scrutiny for below-threshold transactions remains crucial for dealmakers and it is thus. increasingly important to address this risk in transaction documents where appropriate.
• Scrutiny at the EU level. Despite the Illumina/Grail judgment which challenged the EC's approach, the European Commission (EC) can still review deals that do not meet EU merger control thresholds through the backdoor of the Article 22 EUMR referral mechanism, provided that the referring Member State has jurisdiction, including via national call-in powers. This interpretation is currently being challenged before the EU courts.
• Further expansion of call-in powers across the EU. An increasing number of EU Member States have adopted, or are in the process of adopting, call-in powers that allow them to review transactions that fall below national filing thresholds. This trend is expected to continue across the EU and the EC is encouraging Member States to introduce call in powers and also coordinate with Member States in asking questions on specific transactions. According to EC officials, it is expected that up to 15 Member States will have call in powers until the end of the year.
• Jurisdictional reach without local turnover or presence. Some national competition authorities take the position that they can exercise call-in powers and assert jurisdiction without the need to demonstrate any turnover or presence of the target business in their local jurisdiction on the basis that a potential transaction has some impact on competition in their jurisdiction.
• No sector is "immune". While sectors such as technology, life sciences, and pharmaceuticals may present higher risk, competition authorities are actively monitoring below-threshold transactions across a broad range of industries.
• Non-reportable deals can also be caught by behavioural antirust rules. National competition authorities are increasingly exploring the use of Articles 101 and 102 TFEU to challenge completed non-reportable transactions ex-post, particularly where such deals are perceived to harm competition.

Catching below-threshold transactions under Article 22 EUMR post-Illumina/Grail

In September 2024, the EU's Court of Justice overturned the General Court's judgment in Illumina/Grail, effectively curbing the EC's revised policy approach to Article 22 EUMR regarding below-threshold transactions. Under the EC's contested policy, it could encourage a Member State to refer transactions for the EC's review, even if those transactions did not meet national or EU notification thresholds. The court rejected this interpretation, holding that a Member State may only refer a transaction under Article 22 EUMR if it has jurisdiction to review the deal under its own national laws. Furthermore, the court emphasised that the EUMR aims not only to safeguard competition but also to ensure an "effective and predictable control system." It found that the EC's broad interpretation of Article 22 risked disrupting the balance of the EUMR's objectives and undermining the legal certainty and predictability that businesses require when notifying transactions. The ruling led to the withdrawal of a series of EC's decisions in Illumina/Grail and withdrawal of referral requests made by Member States to the EC with respect to the Microsoft-Inflection partnership.

The EC's current interpretation of the judgment is that national competition authorities may refer non-reportable transactions to the EC under Article 22 EUMR, provided the transaction (i) meets national notification thresholds or (ii) can be reviewed under their discretionary call-in powers. However, the second limb (ii) of this interpretation has yet to be confirmed by the courts. In a notable post-Illumina/Grail development, the Italian Competition Authority became the first national competition authority that used its call-in powers to seize jurisdiction and referred the transaction to the EC. In October 2024, the EC accepted the Article 22 referral of NVIDIA's proposed acquisition of AI software developer Run:ai. Although the EC ultimately cleared the deal unconditionally in December 2024, NVIDIA subsequently challenged the legality of the referral itself. NVIDIA contends that the EC unlawfully accepted the referral, relying on the Italian authority's "loosely defined, ex post, discretionary call-in powers." It argues that this approach contravenes fundamental EU law principles, including institutional balance, legal certainty, proportionality, and equal treatment and thus is against the Illumina / Grail judgement.

Another case currently pending before the General Court concerns the acquisition of drinks distributor Boissons Heintz by Luxembourg's largest brewer, Brasserie Nationale, a deal that has since been abandoned. The referral to the EC was made by the Luxembourg Competition Authority on the basis of Luxembourg not having its own merger control regime. The EC accepted the referral in March 2024. The parties subsequently notified the transaction to the EC but withdrew the notification in November 2024. In June 2024, Brasserie National challenged the legality of the EC's acceptance of the referral before the General Court. The parties argued that the Luxembourg Competition Authority missed the procedural deadline of 15 working days from the transaction formally notified or being "made known" to Luxembourg to make the referral to the EC. They further contend that the EC lacked sufficient grounds to accept the referral, arguing that there was no credible analysis demonstrating an effect on trade between Member States or a significant threat to competition within Luxembourg. For context, under Article 22 EUMR, a Member State may request the EC to examine a concentration that does not have an EU dimension, provided the transaction affects trade between Member States and threatens to significantly affect competition within the territory of the referring Member State or States.

Catching non-reportable deals pursuant to call-in powers of European national competition authorities

While the EC's powers appear to have been somewhat curtailed following the Illumina/Grail judgment, national competition authorities across the EU are actively strengthening their enforcement toolkits by introducing or expanding call-in powers within their national merger control regimes. Some jurisdictions, such as Lithuania and Sweden, have had long-standing call-in powers (available for over two decades), while others, including Ireland, Denmark, and Italy, have only recently introduced similar mechanisms. Over the past four years, nearly half of the EU's national competition authorities have implemented a call-in power, and the number is expected to grow. Following the Illumina/Grail decision, senior officials at the EC publicly stated that the EC had been encouraging Member States to incorporate call-in powers into their national legal frameworks. Authorities in Finland, Belgium, Greece, France, and the Netherlands have already voiced support for such powers. As of early 2025, both France and the Netherlands launched public consultations and are actively developing legislative proposals to introduce call-in powers. Contrary to initial expectations that these powers would be reserved for "innovation-intensive" sectors, transactions subject to call-in reviews have spanned a broad range of industries. These include life sciences, technology, wood processing, maritime freight transport, construction, classified advertising platforms, and telecommunications infrastructure.

The appetite to use call-in powers varies among jurisdictions:

• One of the most active competition authorities that is ready to deploy its call-in powers is the Italian Competition Authority. Since their introduction in mid-2022, the Italian Competition Authority has already exercised this power in nine transactions.¹ It made the first referral to the EC of a non-notifiable deal after the Illumina/Grail judgment in NVIDIA/Run:ai.
• The Swedish Competition Authority has only called-in deals on average less than once every three years despite the call-in powers having been in place for more than 20 years.²
• In Ireland and Denmark, where the powers were recently introduced, the competition authorities have not yet exercised their call-in options. However, the Irish Competition Authority has already sent requests for information to parties to assess whether it would call in below the threshold transactions.

A national competition authority can call in a transaction based on the following:

• National competition authority's wide discretion. Authorities mainly need to have some indication that the transaction may impede competition in their jurisdictions. This is the case for example in Cyprus and Ireland. In Luxembourg, such powers are at a proposal stage.
• Call-in revenue thresholds. These are different from the general thresholds. Such powers exist in Denmark, Italy, Iceland, Hungary and Sweden. In the Czech Republic relevant laws are at a draft proposal stage.
• Specific requirements: Jurisdictions that require detailed prerequisites for call-in if the general thresholds are not met. Such powers exist in the EU, Germany, Latvia, or Lithuania.

Catching non-reportable transactions pursuant to antitrust rules under Articles 101 and 102 TFEU

In 2023, the EU Court of Justice, in the Towercast judgment, confirmed that national competition authorities may apply the abuse of dominance rules under Article 102 TFEU to mergers that do not meet EU or national merger control thresholds and have not been referred to the EC under Article 22 EUMR. However, it remains to be seen how national authorities and courts will interpret and apply the test established in the ruling as no national competition authority has yet completed a substantive antitrust review of such non-reportable transactions.

Not even a week later after the Towercast ruling, the Belgian Competition Authority (BCA) picked for its review Proximus's completed acquisition of edpnet assets under the abuse of dominance rules. The BCA dropped the probe after Proximus agreed to divest edpnet to Citymesh. In 2024, the French Competition Authority (FCA) stretched the application of Towercast in that it assessed a non-reportable merger in the meat-cutting industry under Article 101 TFEU. The FCA concluded that it is entitled to do so because, as with Article 102 TFEU, Article 101 TFEU is also a "provision [of primary law] having direct effect" and its applicability cannot be ruled out by a piece of secondary legislation. Although the FCA dismissed the case due to the lack of evidence, this is the first time that an authority analysed a non-reportable transaction under Article 101 TFEU, following a broad interpretation of the Towercast precedent.

The most recent application of the Towercast judgment by an EU competition authority is the Netherlands Competition Authority's (ACM) decision to launch an investigation in March 2025 into the completed acquisition of cash-in-transit company Ziemann by its competitor Brink. The parties argued that the transaction did not require notification to the ACM, as the relevant merger control thresholds were not met. However, the ACM announced it would investigate whether the transaction violates competition rules, including the prohibition on abuse of dominance. Notably, Article 27 of the Dutch Competition Act states that the implementation of a concentration shall not, in itself, be regarded as an abuse of a dominant position.

The risk of antitrust investigations of non-reportable deals are more likely to be ex-post but as evidenced by the BCA's most recent investigation, it can be also ex-ante. At the beginning of 2025, the BCA launched an investigation concerning a possible infringement of Article 101 TFEU into Dossche Mills' proposed acquisition of certain commercial activities of Ceres shortly after the deal was announced. Like the FCA in case of the investigation of the non-reportable merger in the meat-cutting industry, the BCA cited the Towercast judgment to justify the investigation pursuant to Article 101 TFEU. At the end of March 2025, the BCA reported that the parties abandoned the deal. Interestingly, Dossche already attempted to acquire Ceres in 2019 but ultimately abandoned the deal after the BCA raised serious competition concerns. It was also reported that in 2013, the BCA found an infringement of Articles 101 TFEU in the form of anti-competitive horizontal agreements and exchanges of sensitive commercial information between Dossche Mills, Ceres and other players in the Belgian flour sector. Some of these players have in the meantime been acquired by Dossche Mills. It is therefore possible that the BCA decided to call the deal for its review ex-ante (rather than ex-post which would usually be the case) due to the unique set of circumstances of this case.

Outlook

The regulatory landscape for non-reportable transactions in the EU continues to evolve rapidly, leaving dealmakers with a heightened level of uncertainty and risk. Despite the Illumina/Grail judgment reaffirming the importance of legal certainty and predictability, the EC and national competition authorities are actively pursuing new avenues to review deals that fall below traditional thresholds.

Key trends and developments to watch include:

• Further clarification of Article 22 EUMR. The upcoming General Court rulings in NVIDIA/Run:ai and Brasserie Nationale/Boissons Heintz are expected to provide critical guidance on the limits of the EC's ability to review below-threshold transactions based on national call-in powers, and the procedural safeguards required.
• Potential reform of the EUMR. Depending on the outcome of ongoing court challenges, the EC may seek to revise the EUMR, possibly by lowering jurisdictional thresholds, adopting value-based tests, or amending Article 22 to clearly accommodate referrals of below-threshold transactions.
• Increased national enforcement. National competition authorities across Europe are expanding and actively testing their call-in powers, with some already demonstrating a willingness to intervene in a broad range of sectors. This trend is expected to continue and intensify and the EC is actively encouraging Member States to introduce such call-in powers. Relying on the Member States' calling powers to have a deal referred is easier than revising the EUMR and thus the EC may actively encourage Member States to ask questions on transactions.
• Ongoing legal uncertainty: There are no uniform criteria for identifying transactions that may be subject to call-in by competition authorities. However, certain types of deals are more likely to attract scrutiny. These include: (i) acquisitions involving low-revenue but strategically important, innovative, or high-potential targets; (ii) serial or "roll-up" acquisitions that, over time, may lead to the creation or strengthening of a dominant market position; and (iii) so-called "killer" or "reverse killer" acquisitions, where the acquirer may have an incentive to discontinue or deprioritise overlapping or competing products to reduce future competition.

Dealmakers must adapt to this shifting enforcement landscape by incorporating regulatory risk assessments early in the deal process and, where appropriate, reflecting these risks in transaction documentation and timelines.

_{1 Five of which were cleared in the first phase. Two others were approved in the second phase subject to remedies and another operation was abandoned. The ninth is Nvidia/Run:Ai.
2 The Swedish Competition Authority has used its call-in powers only in only seven transactions since they were introduced in 2004.}

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