EU Commission And ECN Adopt Joint Statement On Key Principles For Merger Call-in Mechanisms

On 23 June 2026 the EU Commission and the network of EU competition authorities (ECN) published a Joint Statement on the implementation of merger call-in mechanisms. 

The number of Member States that have adopted call-in mechanisms under which they can take jurisdiction over certain transactions that do not meet their jurisdictional merger thresholds has steadily increased over the last years. They are supported by the Commission and the national competition authorities as they enable interventions in potentially harmful concentrations that would otherwise not be scrutinised. However, these mechanisms also remove the bright-line tests for jurisdiction, making it more difficult for businesses to identify in advance where merger clearance will be required for their proposed transactions and to evaluate related risks and timing implications for closing. 

In the interest of predictability and legal certainty the Joint Statement now sets out the key principles for the application and interpretation of merger call-in powers. It recognises that these should strike a proportionate balance between effective merger control enforcement and legal certainty, provide predictability and reduce the administrative burden for businesses and competition authorities. To this effect the Joint Statement suggests that the call-in regimes of the Members States should comply with the following principles:

• The exercise of the call-in mechanism should be limited to concentrations below the thresholds that could, prima facie, lead to material anticompetitive effects in the relevant territory (“Material Scope”). In the interest of legal certainty, national legislators may introduce additional criteria such as local nexus or additional thresholds based on turnover, transaction value or market share.
• The possibility to exercise a call-in mechanism should in principle be limited to a predefined period (“Temporal Scope”).
• Legal certainty and predictability will be further improved with the introduction of soft law instruments such as informal guidance, voluntary notification and the possibility to engage in consultations, to enable undertakings to better anticipate potentially problematic transactions and self-assess the likelihood of the transaction becoming subject to merger control review.
• Adequate internal procedural rules could be implemented or adapted to minimise unnecessary administrative burdens both for businesses and for the competition authorities.

The adoption of the Joint Statement is a first step towards greater harmonisation between the current patchwork of call-in regimes that exist at Member State level, but more may be required to ensure that businesses have the necessary predictability and clarity to be in a position to assess with confidence, easily and quickly what are the relevant regulators for their transactions.

Impact of the CJEU’s ruling in Illumina Grail

To some extent the increase in the number of Member States that have adopted call-in powers is as a result of the ruling by the Court of Justice of the EU (CJEU) in Illumina Grail (see our blogpost here), which was seen as creating a gap for scrutiny of certain potentially harmful transactions under Article 22 of the EU Merger Regulation (EUMR) that do not meet mandatory thresholds in the relevant Member State(s).

In March 2022 the Commission had published revised guidance on the referral mechanism set out in Article 22 of the EUMR, under which the Commission made it clear that it would accept referrals from Member States for deals that fall below the domestic jurisdictional thresholds of the referring country, in order to capture more transactions involving nascent competitors and innovative companies. Illumina’s acquisition of Grail was the first transaction scrutinised by the Commission on the basis of this revised approach and Illumina successfully challenged the Commission’s decision to accept a referral request to review and subsequently prohibit the transaction.

The importance of predictability and legal certainty for the parties to a concentration

The CJEU held that the Commission's interpretation of the Article 22 referral regime under its revised approach was wrong. In reaching its conclusion the CJEU focused on the importance of predictability and legal certainty for the parties to a concentration, describing clear thresholds for determining whether or not a transaction must be notified "of cardinal importance".

The increase in the number of jurisdictions with call-in power was seen by the Commission as a partial solution to fill the gap on the basis that it would increase the scope for Article 22 referrals. At this stage however it is not clear whether a referral based on national call-in powers of the Member States would comply with the CJEU’s principles set out in the Illumina Grail case. 

An appeal is currently pending before the General Court by Nvidia which is challenging the Commission’s acceptance of Italy’s Article 22 referral in its acquisition of Run:ai, based on the Italian competition authority’s call-in powers. Nvidia argues that the Commission’s approach of accepting referrals based on an NCA’s call-in powers is an unlawful interpretation of Article 22 and is in breach of the CJEU’s ruling in Illumina Grail where the Court highlights the importance of “the effectiveness, predictability and legal certainty that must be guaranteed to the parties to a concentration”, and the need for “an effective and predictable system of prior control for the undertakings concerned”.

If the Commission loses this case it may need to turn to other solutions to close the gap for reviewing cases where a deal would have an impact in Europe but does not otherwise meet the EU notification thresholds, including potentially amending the thresholds in the EUMR itself.