EU merger control and Article 22: The saga continues

The European Commission’s ability to review “below threshold” mergers under Article 22 of the EU Merger Regulation (EUMR) remains a hot topic. Matej Ovecka and Richard Whish KC discuss Nvidia’s appeal challenging the Commission’s jurisdiction to review its acquisition of Run:ai following an Article 22 referral by the Italian Competition Authority (ICA), including Nvidia’s grounds of appeal and the potential implications. This transaction did not meet the normal turnover thresholds for an Italian review, but the ICA used call-in powers to assert jurisdiction and then referred the transaction to the Commission.

Under Article 22, transactions that do not meet the EUMR turnover thresholds can be referred to the Commission to review if the transaction affects trade between Member States and threatens to significantly affect competition within the Member States making the request. However, in September 2024, in Illumina/GRAIL, the Court of Justice of the European Union ruled that national authorities cannot refer transactions unless the authority itself has jurisdiction under its national regime. A number of Member States, including Italy, have amended their national regimes to be able to call-in transactions for review even if the country’s normal jurisdictional thresholds are not met. Nvidia’s appeal will test whether such call-in powers can be used for an Article 22 referral.