A new era of below-threshold merger enforcement in the EU

NCAs’ use of Article 101 and 102 TFEU to assess below-threshold mergers

In March 2023, the European Court of Justice (ECJ) confirmed in its Towercast ruling that NCAs can review under abuse of dominance rules transactions that have not been subject to merger control scrutiny, including after they close. Only a few months later, the BCA led the way in applying the Towercast case law by imposing interim measures on Proximus’ acquisition of EDPnet, which it then investigated as a possible abuse of a dominant position under Article 102 TFEU (see our previous article on the Proximus case for a detailed analysis). The proceedings were closed in November 2023, after Proximus agreed to divest EDPnet.

In a new attempt to apply Towercast to an M&A deal, on 22 January 2025, the BCA opened an investigation under Article 101 TFEU (and its national equivalent) into the possible anti-competitive effects of Dossche Mills’ proposed acquisition of the artisan bakery segment of its domestic competitor Ceres. In 2019, Dossche Mills had already tried to acquire all of Ceres, but that acquisition was unsuccessful and ultimately abandoned due to concerns raised by the BCA about the deal’s potential impact on competition in the affected markets. While that earlier deal was notified to the BCA, the more limited scope of the current transaction kept it below the Belgian merger notification thresholds. In the absence of call-in powers and leveraging the Towercast case law, the BCA opened ex-officio proceedings under Article 101 TFEU, only a few days after Dossche Mills’ announcement of the proposed transaction. The BCA’s press release suggests that the BCA’s decision was influenced by the fact that in 2013, the then Competition Council had already found an infringement of Article 101 TFEU in the form of anti-competitive horizontal agreements and exchanges of commercially sensitive information between Dossche Mills, Ceres and other players in the Belgian flour sector (some of whom have since been acquired by Dossche Mills, making Ceres and Dossche Mills the two largest producers and suppliers of flour to artisan bakers in Belgium).

The BCA is, however, not the first NCA to apply Article 101 TFEU to a merger below the national notification thresholds. In May 2024, the French Competition Authority (FCA) examined, under Article 101 TFEU (and its national equivalent), a series of non-reportable transactions involving three French meat-cutting companies, Akiolis, Saria and Verdannet. The case stemmed from several asset-swap transactions, which gave rise to concerns regarding potential market allocation. While the case was ultimately dismissed by the FCA, it demonstrates, together with the BCA’s interventions, the NCAs’ growing willingness to use antitrust law provisions to make up for the limitations of the EU and national merger control regimes.

NCAs’ call-in powers to refer deals to the EC

While the Illumina-Grail judgment restricted the EC’s ability to review below-threshold transactions, in a statement following the judgment, the EC alluded to an alternative route to review such transactions through referrals based on NCAs’ call-in powers. 

It did not take long for a Member State to make use of this mechanism. In October 2024, the Commission announced that the Italian Competition Authority (ICA) had referred Nvidia’s proposed acquisition of Run:ai to the EC pursuant to Article 22 EUMR. The acquisition did not trigger the EUMR notification thresholds and was notified in Italy upon request of the ICA, using its call-in powers. The EC accepted the referral stating it is ‘best placed to examine the acquisition given its knowledge and case experience in related markets’ with concerns that the merger could significantly affect competition within the EEA. Although the EC unconditionally cleared the deal on  20 December 2024, Nvidia challenged the Commission’s acceptance of the referral before the General Court. 

Currently, eight Member States have call-in powers to review transactions that are below their national turnover thresholds (Denmark, Hungary, Ireland, Italy, Latvia, Lithuania, Slovenia and Sweden), with others expected to follow suit. Notably, the Belgian, Dutch, Finnish, Czech and Greek NCAs have already expressed their support for the introduction of call-in powers in their countries. Meanwhile, the FCA launched a public consultation in January 2025 to gather views on whether such powers should be introduced in France. Other jurisdictions, such as Austria and Germany, which already have alternative tests (based on deal value) specifically designed to catch high-value/low-turnover transactions, might instead be looking to enhance their existing transaction value-based thresholds (see here Andreas Mundt’ recent interview) to widen the scope of their intervention further.

Key takeaways

The ECJ has emphasized the significance of legal certainty in Illumina-Grail; however, companies are still facing uncertainty for their M&A deals that do not trigger the traditional merger control thresholds. To address the gap left by the Illumina-Grail judgment, Member States with call-in powers may increasingly exercise these powers to refer cases to the EC under Article 22 EUMR. Italy has already set a precedent by utilizing this mechanism in the Nvidia/Run:ai merger, and this practice can be expected to continue. At the same time, the ECJ’s assertions regarding the importance of predictability and legal certainty raise questions about whether referrals made under call-in powers align with the effectiveness objective pursued by the EUMR. NVIDIA’s appeal to the General Court is expected to provide further insights into the validity of such referrals. 

Furthermore, companies must also consider the risk of antitrust investigations under Article 101 and 102 TFEU, which are more likely to be ex-post, but can also be ex-ante, as evidenced by the BCA's intervention in the Dossche Mills case shortly after its announcement. In contrast to the call-in process, investigations under Articles 101 and 102 TFEU are generally more protracted and unpredictable due to the complexities involved in proving the existence of an anti-competitive agreement or an abuse of a dominant position. As such, the application of antitrust provisions to merger cases is likely to remain a measure of last resort. Nevertheless, with the number of such cases increasing since the Towercast ruling, one might question whether this is merely coincidental or indicative of a broader trend. Only time will tell.

In the meantime, businesses must continue to navigate the increased uncertainty surrounding the review of their M&A transactions and the potential risk of an antitrust investigation, even if they manage to escape scrutiny under traditional merger control.

The authors wish to thank Aliriza Ozturk, International Trainee, Norton Rose Fulbright LLP Brussels, for his contribution.