Across Europe, the tectonic plates of merger control are shifting. The familiar comfort of turnover thresholds, the traditional barometer for measuring and screening transactions, no longer guarantees safe passage. A new era of scrutiny has begun, marked by the expanding reach of EU Merger Regulation (EUMR) Article 22 referrals, the rise of discretionary "call-in" powers, and a jurisprudence that appears ever more willing to stretch jurisdictional limits. Deals once thought too small, too local, or too marginal are now being caught in the net of competition law. The consequences extend well beyond the headline-grabbing worlds of Big Tech and pharmaceuticals; even modest cross-border acquisitions risk finding themselves under the European Commission's gaze.By discretionary "call-in", we mean the authority's power to require notification of a transaction that (i) falls below the ordinary thresholds, or (ii) meets an alternative statutory threshold that, while not itself giving rise to a filing obligation, empowers the authority to compel the parties to notify the transaction for review.
What follows are 10 currents in this evolving landscape, trends that any company, financier, or investor must navigate when structuring and executing transactions in today's European marketplace.
1. Call-In Powers and the Article 22 Gambit
A growing number of member states, including Denmark, Hungary, Ireland, Italy, Latvia, Lithuania, Slovenia, and Sweden, now deploy discretionary powers to summon transactions into review, regardless of turnover. Even when revenues are negligible, a local nexus can prove sufficient. Meanwhile, under Article 22 of the EUMR, national authorities may request the European Commission's intervention in cases lacking an "EU dimension" if competition or trade across borders is affected. Though the European Court of Justice (ECJ) has placed limits on such referrals, insisting they must originate from jurisdictions with merger control, the continued availability of call-in powers ensures Article 22 remains alive and unpredictable.
2. Beyond Turnover: A New Arsenal of Tools
National competition authorities are moving beyond the simplicity of revenue and market share thresholds. New mechanisms, such as deal value thresholds and the Digital Markets Act's vigilant oversight of "killer acquisitions," point to a regulatory philosophy no longer content with narrow metrics. The emphasis is shifting decisively towards capturing economic reality, however elusive or novel its form.
3. Expanding Legislative Frontiers
Reform is in motion. France and the Netherlands are crafting their own call-in regimes, while Luxembourg, Finland, and the Czech Republic weigh similar changes. Each reform adds another layer of complexity and, therefore, exposure for cross-border deals, widening the frontier of risk.
4. Timing and the Perils of Referrals
In February 2024, Luxembourg's referral of Brasserie Nationale's acquisition of Boissons Heintz underscored the treacherous role of timing. The General Court upheld the European Commission's acceptance of the referral, despite Luxembourg lacking merger control rules of its own, clarifying that the 15–working day clock begins only when the authority receives sufficient information to make a preliminary assessment. Mere awareness is not enough. The ruling has been appealed to the ECJ, but the message is already clear: Deadlines, like jurisdictions, are more malleable than once believed.
5. Post-Closing Scrutiny and Market Dominance
Authorities are no longer shy about reopening closed chapters. The Danish Competition and Consumer Authority has already deployed its call-in powers post-closing, citing dominance concerns in transactions such as the Uber and Dantaxi merger. Belgium, lacking call-in powers, has turned instead to the treaty provisions of articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) to police below-threshold deals, as seen in its scrutiny of the Dossche Mills/ Ceres merger. In its Towercast v. Autorité de la concurrence and Ministère de l'Économie judgment, the ECJ made plain that even modest, unreportable deals can be scrutinised under Article 102 TFEU. Finality, once assumed, can no longer be relied upon.
6. The Rise of Roll-Up Strategies Under the Microscope
Serial acquisitions, which are small in isolation but transformative in aggregate, are coming into sharper focus. In reviewing Foresco's proposed purchases of competitors, the Dutch authority took the unprecedented step of assessing the company's broader roll-up strategy, noting that a mosaic of minor acquisitions can have the same effect as a single blockbuster merger.
7. The High Bar of Legal Challenges
Litigation, whether in the NVIDIA/Run:ai or Brasserie Nationale case, faces formidable odds. The EU courts continue to afford the European Commission wide discretion, and challenges are costly, uncertain, and slow. Few merging companies can afford to rely on legal recourse as a shield.
8. Damages for Flawed Article 22 and Prohibition Decisions: A Difficult Road
Though possible, damages claims, whether filed against the European Commission in Luxembourg or member states in national courts, demand proof of manifest error, clear causality, and quantifiable loss. Precedent offers scant encouragement: Schneider/Legrand remains an outlier amid a field of failed claims such as MyTravel (formerly Airtours) and UPS/TNT. Preventive diligence is worth far more than retrospective litigation.
9. A Glimpse of the Future: The Innovation Shield
Looking ahead, the European Commission intends to publish new merger guidelines in 2026. Among its novelties is the so-called "innovation shield," criteria under which acquisitions of small, dynamic firms are unlikely to raise concern. This effort, coupled with the notion of an "innovation defence," signals recognition that Europe's startup ecosystem must not be smothered by overreach. Yet for larger merging firms, the shield will offer little sanctuary.
10. Navigating the New Terrain
The European merger landscape now resembles less a charted map than a shifting archipelago. To cross it safely, firms must embrace early competition assessments, even for small deals, build contingencies into deal structures, structure financing that is resilient to delays, and maintain vigilant monitoring of reforms and enforcement trends across member states.
Conclusion
The old world of thresholds and certainties is dissolving, replaced by a fluid, discretionary regime in which vigilance, flexibility, and foresight are indispensable. Authorities now move with discretion, sometimes quietly, sometimes decisively, reshaping what was once routine into a matter of careful calculation. For companies and investors, the lessons are clear: anticipate scrutiny at every stage, build flexibility into deal structures, and recognise that certainty comes only through preparation. In this evolving terrain, involving Goodwin's Antitrust and Competition team early can make the difference between smoothly navigating the thicket of regulation and being caught unprepared.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
