Antitrust

In our previous post, we examined how the EU was reshaping its approach to below-threshold mergers following the Illumina/Grail judgment and the Nvidia/Run:ai referral. Since then, the landscape has continued to shift, with national competition authorities (“NCAs”) gaining an ever-expanding toolkit to review deals that might otherwise slip under the radar and the risks of referrals to the European Commission (“EC”) under Article 22 remaining in the spotlight. In this post we provide an update on developments over the past 12 months – and what it means for dealmaking in Europe.

Article 22 referral risks remain post-closing

In the most recent development, the EC last week rejected an Article 22 referral request from the Portuguese NCA concerning Vanderlande’s EUR 300 million completed acquisition of Siemens Logistics.

The deal, which was announced in October 2024, has faced a protracted regulatory process, having initially been notified in Germany (it did not meet EU notification thresholds) in late 2024. Following objections from the German NCA, the parties restructured the transaction to exclude a German filing obligation and then closed the ex-US parts of the deal in May 2025 (the US part of the deal closed in February 2026).

However, the deal was subsequently notified to the Portuguese and Spanish authorities post-closing, in March 2026. Notably, both Portugal and Spain have market share-based notification thresholds, which leave greater room for interpretation over whether a deal is notifiable (i.e. depending on how the relevant market is defined) and require careful attention where a deal involves horizontal overlaps in the relevant jurisdiction. It is understood that this is the basis on which the deal was notified in those jurisdictions.

The Portuguese NCA submitted its Article 22 referral request in April, which was later joined by the Spanish and Italian NCAs. These developments followed intensive lobbying by Beumer, a rival German airport baggage handling company, which is understood to have been in informal contact with the EC since June 2025 and had been pushing for an Article 22 referral.

Ultimately, the EC decided not to accept the Portuguese referral request on the basis that the transaction had already been implemented for more than a year. Notably, this reasoning corresponds with the EC’s earlier Article 22 guidance (which was withdrawn following the Illumina/Grail judgment) in which it stated that closing is no bar to acceptance of a referral request but also that the amount of time elapsed since closing may impact the likelihood of acceptance. Specifically, the EC indicated that it would generally not consider a referral to be appropriate more than six months post-closing (provided the closing was made public), except in exceptional situations. The EC’s decision provides important confirmation of this approach in practice.

Nevertheless, the case demonstrates that Article 22 referral risks can still arise post-closing, especially if third-party complainants remain active. Moreover, while the parties may have avoided a referral to the EC, they continue to face the risks of the Spanish and Portuguese NCAs’ ongoing reviews of the transaction.

The Nvidia/Run:ai litigation: judgment pending

The Article 22 referral mechanism has also been under scrutiny as a result of Nvidia’s appeal against the EC’s decision to review its acquisition of Run:ai, following a referral from the Italian competition authority under Article 22 of the EU Merger Regulation. The deal, which met neither the EU nor the Italian mandatory notification thresholds, was ‘called in’ and referred to the EC by the Italian authority in September 2024, using its powers to review below-threshold deals.

Nvidia’s appeal was heard by the EU General Court over two days in March 2026, with the outcome expected to shape the future boundaries of Article 22 referrals. Unsurprisingly, since the Nvidia/Run:ai referral 18 months ago, the EC has not accepted any further below-threshold Article 22 referrals based on the use of national call-in powers. The General Court’s judgment, expected in the coming months, will therefore be closely watched (the EC cleared Nvidia/Run:ai unconditionally at Phase I, so the appeal has no bearing on that specific transaction).

The General Court’s ruling in Brasserie Nationale case

Separate from Nvidia/Run:ai, the General Court delivered a notable Article 22 judgment in July 2025. In Brasserie Nationale and Munhowen, the Court rejected the applicants’ arguments as to the appropriateness of the referral and confirmed that, consistent with Illumina/Grail, the EC can accept Article 22 referrals from Member States which do not have national merger control rules – with Luxembourg the only remaining such example.

While the parties have appealed to the ECJ, this in principle provides yet another route for the EC to review below-threshold deals – the Luxembourg NCA can refer any non-notifiable transaction that threatens to significantly affect competition within Luxembourg. This would arguably be the case for deals relating to EU-wide markets, including digital and healthcare/pharma markets, where concerns around ‘killer acquisitions’ have been raised.

However, to date, the Luxembourg NCA has not indicated a willingness to make referrals for deals without a clear local nexus. Moreover, Luxembourg is pushing ahead with plans to introduce a national merger control regime (including a call-in power), which would close this particular route for Article 22 referrals.

NCAs take centre stage

With the Nvidia/Run:ai judgment pending, the past 12 months have seen several NCAs become increasingly active in reviewing deals that fall below the relevant thresholds. This includes both using national call-in powers and conducting ex-post reviews of deals under antitrust rules on anticompetitive agreements and abuse of dominance.

More NCAs using call-in powers

Currently, NCAs in nine EU Member States (Cyprus, Denmark, Hungary, Ireland, Italy, Latvia, Lithuania, Slovenia, Sweden) and two EEA Member States (Iceland and Norway) have discretionary call-in powers. The past year has seen two of those NCAs use their powers for the first time:

• In August 2025, the Danish NCA called in Uber’s already completed acquisition of Greenfleet, the parent company of Dantaxi, and the very next day required OneMed A/S to notify its proposed acquisition of medical equipment competitor Kirstine Hardam A/S. Both deals remain under review, with a Phase II inquiry into Uber/Dantaxi underway since mid-February.

• In March 2026, the Irish NCA called in Uniphar’s proposed acquisition of software management company TouchStore. A few days later, the Irish Government launched a public consultation on proposals to significantly increase the Irish merger notification thresholds – indicating that the Irish NCA’s call-in power is only likely to grow in importance in future.

In addition, in November 2025, the German NCA issued its first ever order requiring a company (Remondis) to notify all future mergers in a specific economic sector (waste management), regardless of whether the German thresholds are met.

Concurrently, several other Member States are looking to introduce or broaden call-in powers, with legislative proposals currently under consideration in France, Luxembourg (alongside, as noted, a broader proposal to introduce a national merger control regime), Slovakia, Sweden and the Netherlands. NCAs in Belgium, the Czech Republic, Finland and Greece have also been actively lobbying for such powers.

The Towercast doctrine: a growing force

Increasingly, NCAs without call-in powers (or market share-based thresholds) are seeking to review below-threshold deals on the basis of standard antitrust rules, pursuant to the ‘Towercast’ doctrine – named after the 2023 judgment in which the European Court of Justice recognised the possibility for NCAs (and, logically, the EC) to review completed mergers under abuse of dominance rules. Recent developments include:

• In November 2025, the French NCA imposed the first ever fine for an abuse of dominance relating to a non-notified merger, in the Doctolib/Mon Docteur case. The fine of EUR 50,000 was largely symbolic, reflecting the legal uncertainty prior to the Towercast judgment (the acquisition took place five years earlier, in 2018), although Doctolib also faces a EUR 4.6 million fine for separate exclusivity and tying practices.

• In the Netherlands, national legislation was amended (effective 1 September 2025) to remove a rule that had previously barred the Dutch NCA from applying abuse of dominance rules to mergers. Potentially in anticipation of this change, the Dutch NCA had already launched an investigation into a below-threshold deal (Brink’s/Ziemann) in March 2025 on suspicion of an abuse of dominance.

• While the Towercast judgment only explicitly endorsed the use of rules on abuse of dominance to challenge completed mergers, in January 2025 the Belgian NCA applied the same principles to use antitrust rules on anticompetitive agreements to challenge a proposed acquisition in the flour sector ex ante. The parties subsequently abandoned the transaction.

• In November 2025, the Swedish NCA closed its first Towercast-style investigation – concerning a merger in the media monitoring sector – without intervention. This was the first such investigation by an NCA with call-in powers (the deal fell below the SEK 1 billion threshold required for the Swedish call-in power to apply).

At the EU level, the EC has also demonstrated a willingness to review completed mergers under abuse of dominance rules. In 2024, it opened an investigation into an acquisition by Zoetis, a US animal health company, of a competing late-stage pipeline product of its newly acquired subsidiary, Nexvet. Although the acquisition was not reportable under national or EU merger control rules, the EC stated in a press release that it believed Zoetis may have acquired the product and terminated its development to prevent its launch as an exclusionary strategy to avoid direct competition with a medicine developed by Zoetis itself. However, over two years later, no further announcement has been made.

Practical takeaways

The patchwork of national tools to capture transactions falling below EU and national thresholds – and their deployment in practice – continues to expand and evolve. NCAs have demonstrated a willingness to take the initiative, using either Article 22 referrals, call-in powers or the Towercast doctrine. Companies considering potentially affected M&A should therefore map their NCA exposure early and, where relevant, account for call-in risks in transaction documents. With non-notified deals increasingly subject to ex-post scrutiny under antitrust rules on anticompetitive agreements and abuse of dominance, acquirers equally need to factor this risk into deal-related internal documents. They should also assess the likelihood of potential third-party complaints, given the risk that these may contribute to deals being scrutinised. The message for parties to non-reportable transactions is clear: closing a deal provides no guarantee of immunity from investigation where a deal raises substantive competition concerns.