The Illumina/Grail Judgment set the stage
On 3 September 2024, the CJEU annulled the General Court’s judgement and the Commission's decisions to accept the request by various national competition authorities (NCAs) to examine the proposed acquisition of GRAIL by Illumina. The CJEU found that the Commission cannot accept NCA requests to investigate mergers below both EU and national thresholds. See also our earlier Illumina/Grail blog.
The Court heeded the opinion of Advocate General Emiliou that "the importance of predictability and legal certainty, in particular for merging parties, cannot be overemphasised" and chose not to endorse a policy that would compromise these guarantees.
The judgement puts an end to the Commission's recent policy extending its jurisdiction to review below-threshold mergers under Article 22 of the EU merger Regulation, known as the Dutch Clause. The Court of Justice of the European Union (CJEU) rightfully emphasised that it is solely up to the EU legislature to review and determine the mechanism by which the Commission can scrutinise mergers.
In other words, Article 22 referrals are only possible where national turnover thresholds are met or where a Member State lacks a merger control regime. For the latter not much is to be expected. Currently Luxembourg is the only EU Member State without such a regime, allowing its NCA to continue referring mergers. The Luxembourg NCA increasingly utilises this option, leading to the pending case before the General Court concerning the concentration of Brasserie Nationale and Munhowen. The effectiveness of this referral practice, whether locally, nationally, or across Europe, will be put to the test.
The Illumina/Grail judgment, subsequently, intensifies authorities’ 'quest' to find ways of reviewing potential killer acquisitions that currently fall outside merger control thresholds. Following the judgment, the Commission and various NCAs swiftly confirmed their commitment to tackling potentially harmful concentrations that escape an ex ante merger control review.
This refers the responsibility for reviewing below-threshold concentrations back to the Member States, at least until the EUMR is amended. In fact, following the Illumina/Grail judgment, the Commission withdrew its Guidelines on Article 22 EUMR for certain cases in November 2024. Member States now face a potential enforcement gap: Acquisitions and roll-ups that often do not meet national merger control thresholds yet may still affect trade and competition within their territories.
Member States handle enforcement gaps differently
Italy’s competition authority, AGCM, for example, has a call-in power. This means that if three cumulative criteria are met, the AGCM can request notification of a concentration even if national thresholds are not met. Denmark, Hungary, Ireland, Latvia, Lithuania, Slovenia, and Sweden all have similar call-in powers.
The AGCM used its call-in power on 31 October 2024 to assess the acquisition of Run:ai by NVIDIA and refer it to the Commission, in line with Illumina/Grail and Article 22 EUMR. The Commission accepted the referral, eventually approving the acquisition. Despite the approval, NVIDIA has appealed to the General Court, contesting the jurisdiction. This referral demonstrates NCA’s readiness and the Commission’s willingness to accept such referrals. Margrethe Vestager illustrated this willingness at that time of the Illumina/Grail Judgment: "Going forward, in compliance with today's judgment, the Commission will continue to accept referrals made under Article 22 of the Merger Regulation by Member States that have jurisdiction over a concentration under their national rules where the applicable legal requirements are met. In the last few years, several Member States have introduced provisions allowing them to request the notification of concentrations that do not meet national thresholds, in situations where they might have a significant competitive impact. The possibilities for referrals to the Commission under Article 22, in compliance with today's judgment, are thus already more extensive than they were at the time of the Illumina/GRAIL referral."
NCAs seeking call-In powers
Other NCAs are seeking call-in powers, the Netherlands is as well. Martijn Snoep, chairman of the Dutch Authority for Consumers and markets (ACM), expressed interest in this power in 2023. The Minister of Economic Affairs confirmed exploring options for the ACM to tackle killer acquisitions, including asymmetric turnover thresholds and a call-in power. In his letter, the Minister stretches the importance of proportionality and predictability of potential measures, so any new powers are expected to have clear criteria. Also pending is the removing of art. 24, paragraph 2 of the Dutch Competition Act (DCA), to apply the Towercast judgment for assessing mergers under Article 102 TFEU. Belgium (under both 101 and 102 TFEU) and Luxembourg (under 102 TFEU) already utilise this approach.
Stricter merger control and new EC inspections
Member States exhibit a general eagerness to analyse concentrations that, though falling outside the scope of national merger control regimes, affect trade and competition within their territories.
In 2024, the Benelux NCAs reflected on past years and made future plans. Stricter merger control was evident across the Benelux, including Luxembourg with several referrals and the application of the Towercast judgement.
Classic cartel and abuse of dominance cases have declined nationally, possibly in line with the available resources at the authorities due to stricter merger control.
However, at EU level the Commission remains active in addressing abuse and cartels. On 10 March 2025, the European Commission announced several TFEU 101 and 102 inspections in the non-alcoholic sector.
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The Netherlands: a call for new enforcement powers
For the Netherlands, 2024 included a vigorous debate between various stakeholders regarding the enforcement options available to the ACM. Martijn Snoep is convinced that the ACM should revamp its merger control regime and should acquire a new tool, the New Competition Tool (NCT). This tool is already in use in countries such as the United Kingdom and would provide the ACM with statutory power to impose measures on businesses operating in markets where competition is inadequate, resulting in harm to buyers or suppliers due to higher prices, reduced quality, or diminished innovation. The ACM believes that this will benefit consumers through fiercer competition among businesses and potentially enhance innovation.
The NCT would operate as an investigative mechanism for a specific market, potentially leading to remedies in cases of nonfunctioning markets. The ACM has investigated the Dutch savings market and assessed the effectiveness of competition within it and is currently concluding an investigation into passenger car sales in the Netherlands, originally expected to be completed by the end of 2024. In this regard, the ACM relies heavily on the recommendations of Mario Draghi in his report titled The future of European competitiveness – A competitiveness strategy for Europe (the “Draghi Report”), where he pleads for an NCT at the European level. Legislative proposals in the Netherlands are expected in the first quarter of 2025 but are not likely to formally enter into force before 2026.
On the merger control side, the ACM has taken a head start into what a call-in would look like by calling in the takeover of Ziemann, a German money transporter also active in the Netherlands, by Brink’s. The ACM considers there might be a significant impediment to competition with the takeover and will investigate whether the transaction leads to an infringement of competition law, especially abuse of a dominant position.
Enforcement in 2024 was quiet, with few Dutch-led dawn raids. Besides a pending case against Apple’s abuse of a dominance, there was little news on that front. With the revamp of Dutch Competition law, however, more public enforcement is anticipated.
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Belgium: starting 2025 on a high
The Belgian Competition Authority (the BCA) has shown a similar pattern towards stricter merger control, differing from the ACM in classic competition law enforcement. In 2024, the BCA issued several serious decisions on restrictive behaviour. In early 2025, it announced investigations into a concentration in the artisanal flour business under the Towercast doctrine and Article 101 TFEU. In addition, it has started an investigation into AB Inbev’s supply chain for a potential violation of the cartel prohibition and abuse of a dominant position. Belgian competition law enforcement is starting strong in 2025. Legislative updates, , however, are unlikely before the new federal government is settled in.
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Luxembourg: prioritising digital markets and the pharmaceutical sector
In 2025, the Luxembourg NCA prioritises new competences under the Digital Markets Act (DMA) and Digital Services Act (DSA). It followed its 2022 pharmaceutical sectoral enquiry with a major dawn raid in summer 2024, which is still under active investigation.
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Digital markets
Both the Commission and the NCAs, digital markets are becoming an increasing priority. With the enactment of the DMA and the DSA, both entities have more tools to investigate, enforce, and address anti-competitive behaviour in the digital domain, and are immediately using them. Please also refer to our earlier DMA blog for more information.
After opening its first compliance investigations in 2024, the Commission has organised several compliance workshops with gatekeepers and sought out input from interested parties regarding DMA enforcement. By March 2025 the Commission is expected to provide preliminary results, as it will need to finalise its infringement investigations related to Meta, Apple and Alphabet. The implications may be substantial, and rumour has it that new investigations are underway. In other words, the Commission is not sitting idle.
While the Commission leads the enforcement of the DMA, NCAs are also keeping close eyes on compliance. The ACM is pro-actively asking the public to report any potential non-compliance. Enforcement of the DSA, on the other hand, is primarily the responsibility of the NCAs or other relevant authorities. Recently, both the ACM and the BMA have conducted webinars, issued guidance, and sought feedback from stakeholders. We expect the first national (DSA) investigations to take of soon.
Questions?
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