Antitrust Law and Merger Control08.05.2026 Newsletter

Focus on Antitrust Law – 1st Quarter 2026

We provide an overview of current developments in antitrust law that are of particular significance for business practice. Among other things, we focus on the draft of the new EU Merger Guidelines and the European Commission’s revised Technology Transfer Block Exemption Regulation, which will set future standards for merger control and technology transfer. We also examine the decision by the German Federal Cartel Office regarding Amazon’s price control mechanisms on online marketplaces, as well as the ruling by the Federal Court of Justice on the transaction value threshold in the Meta/Kustomer case. Finally, we discuss the growing relevance of ‘killer acquisitions’ and ‘acqui-hire’ transactions under competition law, and highlight the developments that companies should keep an eye on in this regard.

Developments in antitrust law

1. Merger control in transition: EU Commission publishes draft of new merger control guidelines

On 30 April 2026, the European Commission published a draft of its fundamental revision of the merger control guidelines and submitted it for public consultation. The previous horizontal and non-horizontal merger control guidelines from 2004 and 2008 are being consolidated into a single framework. According to Commission President von der Leyen, the aim is to better support companies in their growth, scaling and innovation within the highly competitive global economy.

Below, we outline the key planned changes and explain what implications they could have for companies involved in mergers.

1.1. Structure of the changes and key areas

The draft is divided into three main parts:

the competitive assessment, consisting of an analysis of market power and anti-competitive effects,
the benefits of mergers (efficiency gains), and
measures to protect legitimate interests other than competition within the meaning of Article 21 European Union Merger Regulation (EUMR).

Overarching guiding principles form the methodological foundation and permeate all three parts. Key areas of the draft include, in particular, economies of scale, the expansion of the relevant competition parameters, new standards of proof, an extension of the provisions on efficiency gains, and more detailed, forward-looking requirements for counterfactual analysis.

1.2. New guiding principles in merger control

The SIEC (Significant Impediment to Effective Competition) test remains the benchmark for merger control. The Commission bears the burden of proof regarding the existence of anti-competitive effects within a prospective theory of harm. By contrast, it is incumbent on the merging parties to set out and demonstrate potential efficiency gains. To this end, the Commission introduces the concept of a ‘theory of benefit’. This encompasses the advantages arising from the effects of a merger. The undertakings must identify these advantages at an early stage and provide concrete justification as to how efficiencies will arise and how effective competition will be maintained or strengthened for the benefit of consumers.

Price is no longer the only relevant competition parameter. The draft makes it clear that non-price-related parameters such as performance and quality can be included in the assessment in various respects – for example, choice, capacity, investment, innovation, data protection, sustainability and resilience. The Commission has discretion in weighting these parameters. The expanded competition parameters not only affect the harm theories used to assess competitive effects but are also relevant in the context of the efficiency assessment.

Scale-enhancing mergers are also explicitly recognised as promoting competition, provided they are compatible with the maintenance of effective competition within the internal market. According to the draft, scale-enhancing mergers can, in particular, contribute to innovation and technological progress, market integration and market expansion, as well as to achieving the scale necessary to compete globally and to ensure security and resilience.

The draft also sets out in more detail the Commission’s options for assessing mergers. The Commission generally assesses mergers by comparing the market situation with and without the effects of the proposed transaction (“counterfactual”). It may now also take into account future market developments not triggered by the merger, provided these can be predicted with sufficient certainty. Furthermore, the Commission may base its assessment of market conditions on an adjusted reference value in the event of temporary distortions or shocks – such as those resulting from crises, conflicts or economic cycles.

The Commission, however, continues to impose strict requirements on the “failing firm defence”. For financially independent subsidiaries (‘failing division’), it sets out additional assessment criteria in the draft.

1.3. Expansion of options for assessing market power

The draft harmonises the classification of market shares and the associated likelihood of market power. The Commission classifies these as “low” (< 10%), “moderate” (10% – just under 25%), “significant” (25% – just under 40%), “high” (40% – just under 50%) and “very high” (> 50%). At the same time, it does not stop at a schematic analysis: the draft refines the Commission’s tools for analysing different types of merger effects.

According to the draft, market shares do not reliably reflect market power if they do not adequately capture certain factors. This may be the case, for example, where there is intense competition in the overall market, where a company has strong dynamic capabilities, or in highly dynamic or volatile markets, or markets with few, infrequent and high-volume transactions. The Commission can take such circumstances into account through specific requirements and supplementary analyses.

The draft identifies high and persistent barriers to market entry – such as high switching costs, strong customer loyalty, multi-sourcing structures, vulnerable supply chains, highly complex products and regulatory barriers – as factors that are particularly likely to indicate the existence of stable market power. Market power is to be assessed on a holistic basis.

The Commission’s assessment options are not only being expanded but also made more flexible. If a static analysis is unsuitable, market power can be assessed on the basis of the dynamic competitive potential of the undertakings. The Commission is to adapt the indicators of market power to take account of changes in the competitive environment where these are foreseeable with sufficient certainty. These include, in particular, innovation- and investment-related factors, as well as barriers to market entry or expansion. A firm may thus possess significant dynamic competitive potential and, consequently, significant market power despite having a small market share. However, the dynamic approach can also – as a counterbalance – have a limiting effect, for example in relation to market entry or expansion plans of global companies. Such developments must be cumulatively sufficiently probable, imminent (generally within two years) and sufficiently substantiated in terms of their scope.

1.4. New aspects in the assessment of anti-competitive effects

The draft significantly expands the scope for assessing mergers between direct competitors and includes new sections on tender markets, capacity constraints and network effects. With regard to the anti-competitive effects of mergers, the draft systematises eight harm theories in particular, such as the loss of direct competition, investment, innovation and potential competition, as well as market consolidation, market foreclosure and coordination. These theories may cumulatively or alternatively support a SIEC finding and reinforce one another. In its theories of harm, the Commission places particular emphasis on the protection of innovation. It thus introduces an ‘innovation shield’ for small innovators or projects in the field of research, development and innovation which, based on certain criteria, are unlikely to constitute a significant obstacle to effective competition. It should also be noted that, under the draft, the harm theory relating to buyer power may, under certain circumstances, also apply to labour markets.

As with the assessment of market power, the draft also takes dynamic aspects into account in the harm theories. Dynamic foreclosure incentives – for example, to achieve critical economies of scale or to deter future competition – are treated as separate categories of harm.

1.5. Benefits of mergers (efficiency gains): a new legal practice

The draft also provides a comprehensive description of how efficiencies are to be taken into account in merger control decisions. Mergers are compatible with the internal market if proven efficiency gains offset the competitive harm in the long term. The burden of proof lies with the undertakings, which must demonstrate their efficiencies under the ‘theory of benefit’.

The Commission distinguishes between direct and dynamic efficiencies. Direct efficiencies result directly from integration, for example through cost savings, quality improvements, economies of scale, price incentives or the combination of complementary products. Dynamic efficiencies, by contrast, enhance the merging parties’ ability or incentive to invest in new or improved products and processes – for example, through the necessary allocation of resources to R&D processes, the elimination of hold-up effects, or the unlocking of new financing for financially constrained firms.

Both efficiency gains are only eligible for recognition if they are demonstrable on a cumulative basis, specific to the merger, and benefit the consumers concerned. It is worth noting that, under the draft, economies of scale, resilience and sustainability may also be recognised as efficiency gains in certain circumstances. Mergers aimed at strengthening resilience may, in particular, include measures to promote security of supply, supply chains and new products in the face of external disruptions.

Proven efficiency gains must ultimately be weighed against the competitive harm. This balancing also covers asymmetric scenarios, such as differing competitive parameters, time periods or consumer groups. It should be noted that as the merging undertaking’s market power increases, the likelihood that efficiency gains can offset the harm to competition decreases. In monopolistic situations, offsetting through efficiency gains is practically ruled out.

1.6. Measures to protect legitimate non-competitive interests: Practical guidance on the One-Stop-Shop

Finally, the draft contains provisions on Member State measures to protect legitimate interests. In principle, under Article 21 of the Merger Regulation, the Commission has exclusive competence to examine mergers of EU-wide significance in accordance with the one-stop-shop principle. The Commission thus remains the ‘sole point of contact’. However, Member States may take measures to protect legitimate interests that go beyond those taken into account in the Merger Regulation. According to the draft, such interests relate in particular to the safeguarding of public security, media pluralism and regulatory requirements. Member States may also invoke other public interests, such as the protection of critical infrastructure, which must be examined by the Commission. The measures must be in line with the general principles of EU law, in particular they must be proportionate and non-discriminatory. The procedural framework for addressing such interests is also set out in detail in the draft.

1.7. Takeaway

The Commission’s draft addresses current economic and competitive developments and adapts European merger control law accordingly. It builds on existing competition assessment practice, but in some respects extends it and, in particular, develops it in a dynamic manner. Particular highlights include the explicit consideration of economies of scale, a broad and dynamic concept of market power, uniform and, in some cases, expanded theories of harm, the systematic incorporation of efficiencies through the ‘theory of benefit’, and clearer rules on the burden of proof.

For companies, the draft’s provisions – particularly with regard to the ‘theory of benefit’ – are likely to necessitate the early preparation of economically sound analyses of the benefits of a merger and their robust

The Commission has launched a public consultation on the draft, which will run until the end of June 2026. The process of revising the guidelines is scheduled to be completed in the fourth quarter of 2026. It remains to be seen what changes will result by then.

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2. The new Technology Transfer BER

Following several years of revision, the new Regulation on the application of Article 101(3) TFEU to categories of technology transfer agreements (Regulation (EU) 2026/877, the ‘TT-BER’) entered into force on 1 May 2026. Together with the Commission’s new guidelines (‘TT-Guidelines’), it replaces the Regulation in force since 2014, which expired on 30 April 2026. With the new Regulation, the Commission aims to adapt the existing regulatory framework to new market and legal developments and to create greater legal clarity. The focus is on the strategic importance of data and the increased use of standard-essential technologies to enable interoperability between products.

We provide information on the most important changes and practical implications below.

2.1. Background and regulatory objective

The Technology Transfer Block Exemption Regulation (TT-BER) exempts technology transfer agreements containing anti-competitive clauses from the prohibition on cartels laid down in Article 101(1) of the Treaty on the Functioning of the European Union (TFEU), subject to certain conditions. Technology transfer agreements are agreements whereby a holder of technology rights – such as patents, design rights or software copyright – permits another undertaking, usually by granting a licence, to use those rights for the production of goods or the provision of services. Such agreements facilitate the dissemination of technology and create incentives for research and development; they therefore often promote innovation and competition.

The changes introduced by the new TT-BER mainly concern:

licensing negotiation groups (LNGs) and technology pools,
Data licensing,
market share calculation for technology markets,
definitions of potential competitors and active or passive sales, and
the withdrawal of the legal benefit of the exemption.

However, the changes are being made not only in the Regulation but also, for the most part, in the TT Guidelines.

2.2. Interpretative guidance for licence negotiating groups and soft-harbour conditions for technology pools

The review process focused in particular on the treatment of licence negotiation groups. By this, the Commission means agreements between technology users in which they agree to negotiate jointly the terms of the technology licences they wish to obtain from technology holders. Licence negotiating groups are excluded from the scope of the new TT-BER in its recitals and are dealt with exclusively in the TT Guidelines. The Commission expressly decided against a ‘safe harbour’ for licence negotiating groups. This is justified by the risk of under-regulation, coupled with the threat that overly strict conditions might deter licence negotiating groups that promote competition. Therefore, a case-by-case assessment under Article 101 TFEU remains in place, guided by the detailed interpretative rules and guidance set out in the new TT Guidelines. These include, in particular, transparency requirements that undertakings should comply with in such agreements.

The new TT-BER also contains no explicit provisions on technology pools. The Commission defines technology pools as agreements in which several parties assemble a package of technology rights in order to licence them to the participants in the pool and/or to third parties. Under the previous Regulation, it was unclear whether only competition-neutral pools were to benefit from a ‘soft safe harbour’. The recitals of the new TT-BER now clarify that such pools are not covered by the scope of the Regulation. The revised TT Guidelines, on the other hand, specify the conditions for the ‘soft safe harbour’. These include, in particular, the disclosure of the materiality of the technology rights pooled within the pool, as well as certain licensing conditions, such as the avoidance of ‘double dipping’ (multiple licence fees for the same technology rights) or compliance with FRAND conditions for licences granted by the pool itself.

2.3. New guidance on data licensing

The Regulation itself has not been extended to cover new intellectual property rights. In particular, data licence agreements do not generally constitute technology transfer agreements under the TT-BER. However, according to the TT Guidelines, the TT- BER also applies to data licences if the licensed data is to be classified as know-how or as a technology right, or if the data licensing is embedded as a provision within a technology transfer agreement. For databases protected by copyright or subject to sui generis protection, the Commission also applies the principles of the TT-BER and the TT Guidelines, provided that these databases are particularly comparable to the technology rights covered by the TT-BER. For other data (raw data, unprotected data sets), a case-by-case assessment is carried out. Furthermore, the TT Guidelines explain that the exchange of information in database licensing does not usually restrict competition. However, if an exchange of information is not objectively necessary and proportionate for the data licensing agreement, it must be assessed in accordance with the principles on the exchange of information set out in the Horizontal Guidelines. It is also clarified that agreements on data exchange are compatible with Article 101 TFEU, provided that they do not serve to disguise restrictions on competition.

2.4. New definitions

The new TT-BER contains a revised definition of ‘potential competitors’. This now explicitly links to the existence of competitive pressure and thus aligns with established case law on the definition of potential competitors. The TT Guidelines have been amended accordingly. What is required is a real and concrete possibility of market entry based on a series of consistent factual circumstances; a hypothetical possibility or mere intention is not sufficient. As a rule, a period of three years (or longer in pharmaceutical markets, where applicable) is taken as the basis for this.

Furthermore, the TT-BER now contains definitions for ‘active’ and ‘passive sales’. This brings the regulatory content into line with the Vertical Block Exemption Regulation.

2.5. Clarification of market share calculation for technology markets

2.5.1 Market share threshold

The application of the TT-BER generally requires that the parties to the technology transfer agreement comply with certain market share thresholds. It distinguishes between agreements between competitors, on the one hand, and agreements between non-competitors, on the other. An evaluation of the previous rules revealed that, in practice, there were considerable difficulties in applying the market share threshold to the relevant technology and product markets. For this reason, the methodology for calculating market share has been clarified in the new TT-BER, although the wording of the Regulation itself has only been amended in specific areas. Under the new TT Guidelines, a joint market share threshold of 20% applies to agreements between actual or potential competitors in the product market and between actual competitors in the technology market; potential competition in the technology market is expressly disregarded for the purposes of applying the TT-BER. Under the new TT-BER, undertakings that do not generate any turnover from contract products have a market share of zero and therefore fall below the threshold. For non-competitors, an individual market share threshold of 30% applies to each party on the relevant technology and product markets.

2.5.2. Market share calculation

Under the new TT-BER, market share is calculated as the ratio of the total turnover generated by the party’s products and those of its licensees to the total turnover of all products competing in the relevant market – regardless of whether these were manufactured using a licensed technology. This ‘footprint’ approach at product level is intended to address practical difficulties in calculating market share based on licence revenues (for example, in cases of cross-licensing or bundled products) and takes account of the particular significance of the ‘product footprint’ for market position.

Under the new TT-BER, revenue figures are explicitly given priority over sales volumes, as revenue usually provides a more accurate picture of technology’s market strength. Furthermore, the new TT-BER contains a subsidiarity rule in response to identified difficulties in applying the market share calculation. The Commission also illustrates the calculation with examples in the TT Guidelines.

Finally, the transitional period (the so-called ‘sunset clause’) is extended from two to three years in the event that the parties’ market shares exceed the relevant thresholds during the term of the agreement. This is intended to act as a ‘safe harbour’ to enhance legal certainty in situations where market shares fluctuate due to the introduction of new technologies.

2.6. New examples of withdrawal of the benefit of the exemption

The TT Guidelines introduce new examples of scenarios in which a withdrawal of the benefit of the exemption under the TT-BER may be justified. In addition to the cases already mentioned in the Regulation, the following scenarios are highlighted in particular: Restrictions on competition arising from most-favoured-nation clauses between competing licensors, unreasonable restrictions on passive sales into exclusive territories or to exclusive customer groups, and excessive licence fees in a technology market resulting from the cumulative effect of similar cross-licensing agreements. In doing so, the Commission is giving concrete form to its expanded interpretative practice.

2.7. Practical outlook

Overall, the new TT-BER introduces only minor changes compared to the previous version, but focuses on areas where the evaluation has highlighted a need for additional clarification and legal certainty. The new TT-BER provides for a one-year transition period for technology transfer agreements that were still exempt under the old TT-BER and were already in force before 30 April 2026. Companies should carefully consider the new provisions of the TT-BER, as well as the detailed guidance in the TT Guidelines, particularly with regard to technology pools and licence negotiation groups, and review existing and planned projects accordingly. This also applies to data licensing and the application of market share thresholds, as the Commission has specifically tightened up these areas to facilitate the application of Article 101 TFEU and increase legal certainty for companies.

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3. Price Control Mechanisms: Federal Cartel Office Sets Strict Limits for Amazon and Strengthens Price Autonomy for Marketplace Sellers

For many merchants, the Amazon Marketplace is the primary gateway to online customers. More than 60% of German online merchandise sales are processed through amazon.de. Against this backdrop, in a decision dated February 5, 2026, the FCO prohibited Amazon from applying certain price control mechanisms through which Amazon penalizes its sellers for prices it considers too high, thereby effectively enforcing price caps (press release February 5, 2026).

The competition authorities view this as an abuse of platform power under Section 19a (2) GWB as well as a violation of Section 19 GWB and Article 102 TFEU. In addition, the Federal Cartel Office is, for the first time, imposing a fine of EUR 59 Mio based on the economic advantage under the reform of Section 34 of the GWB.

Amazon has filed an appeal against the FCO´s decision. For merchants, this raises the question of who will ultimately determine prices on the Amazon Marketplace—including through algorithms—in the future: the merchant or Amazon?

3.1. Amazon’s Market Power as the Provider of the Amazon Marketplace

The “Amazon Marketplace” is an indispensable sales platform for many merchants. A defining feature of the platform is Amazon’s dual role: On the one hand, Amazon sells goods directly to end customers through “Amazon Retail”; on the other hand, it operates the online marketplace where over 200,000 merchants offer their products and together account for approximately 60% of the trading volume on amazon.de (so-called hybrid platform).

Amazon’s market power as a platform provider has been a concern for the Federal Cartel Office (FCO) for years. As early as 2013, it prompted the abandonment of so-called price parity, which prohibited merchants from offering products at lower prices on other online channels (FCO, B6-46/12) and, in 2019, secured changes to the terms and conditions in favor of retailers, including the restriction of Amazon’s liability disclaimer and the right to object to refund decisions regarding returns (press release July 17, 2019).

3.2. Federal Cartel Office Prohibits Influence on Merchant Prices Through Price Control Mechanisms

Now, the FCO has prohibited Amazon from using its price control mechanisms on the Marketplace. Simply put, these mechanisms compare seller prices to specific reference values. If Amazon considers a price to be too high — sometimes even if the seller’s price exceeds the lowest external competitor’s price — the offer no longer appears in the “Buy Box,” the platform’s central shopping field. This loss of visibility regularly leads to significant revenue losses for sellers.

The lack of transparency in the control mechanisms is also criticized: sellers cannot determine the criteria Amazon uses to set its price limits or the specific thresholds involved.

The FCO considers these interventions to be an abuse under Section 19a(2) of the German Competition Act (GWB) as well as a violation of Section 19 of the GWB and Article 102 of the Treaty on the Functioning of the European Union (TFEU). In the future, Amazon may only use such instruments in strictly limited exceptional cases — particularly in cases of price gouging — which are subject to high legal hurdles.

Another notable aspect is that the FCO is applying, for the first time, the provision on the recovery of economic benefits (section 34 of the GWB), which was amended in 2023. The benefit is estimated at EUR 59 Mio — currently only a partial amount, as the violation is still ongoing.

3.3. What does the decision mean for marketplace merchants?

The Federal Cartel Office is sending a clear signal: Merchants’ freedom to set prices is a central pillar of effective competition on online marketplaces. Merchants should, in principle, determine their own prices — without Amazon’s opaque, algorithm-based interventions, which effectively establish price caps.

The decision sends a signal beyond Amazon: A central principle of distribution antitrust law is being applied to the relationship between platform operators and merchants. According to the FCO, influencing merchants’ pricing — including through price caps — is permissible only in exceptional cases. Furthermore, the visibility of retailers on market platforms must not be restricted or eliminated simply because their prices do not align with the platform operator’s expectations. For platforms with significant market power in particular, this means that price caps and algorithmic price-inflation can quickly be classified as abusive.

Amazon has announced that it will challenge the decision in court and intends to continue using the price control mechanisms unchanged for the time being.

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4. Greater Legal Certainty Regarding the Transaction Value Threshold? Federal Court of Justice Upholds Federal Cartel Office’s Interpretation

As early as 2017, the legislature introduced a new notification threshold for German merger control in the form of the transaction value.

After the FCO and the Higher Regional Court of Düsseldorf initially disputed the interpretation, the BGH has now provided greater clarity – though not complete legal certainty: In its decision of June 17, 2025, in the Meta/Kustomer case, the BGH confirms the FCO’s broad interpretation. “Significant domestic activity” may already exist if there is technical access to data of domestic end customers – even without significant domestic revenue or a physical presence.

Below, we provide an overview of the current legal situation, the decision of the Federal Court of Justice, and the practical implications for businesses.

4.1. Background and Previous Application of the Transaction Value Threshold

With the transaction value threshold introduced in 2017, the legislature created a tool designed specifically to capture acquisitions of young, innovative companies with high economic value. These companies often generate little or no revenue, but can be strategically significant for large, established market players and help them expand their market dominance.

According to Section 35(1a) of the German Competition Act (GWB), a merger is therefore subject to notification even if the target company generates only low revenues in Germany (< EUR 17.5 Mio.) but operates to a significant extent within Germany and the total transaction value exceeds EUR 400 Mio.

In practice, the criterion of “significant domestic activity” poses particular difficulties.

In its Meta/Kustomer decision, the Federal Cartel Office (FCO) adopted a broad interpretation from the outset, focusing on competitive potential. It affirmed that Kustomer engaged in domestic activity simply because Kustomer accessed data records of German end customers, even though there was no contractual relationship with them and the data processing did not take place in Germany.
The Higher Regional Court of Düsseldorf, however, set narrow limits: In its Meta/Kustomer decision, the court focused primarily on the local attribution of the activity itself. In the court’s view, the mere processing of German end-customer data was not sufficient to establish domestic activity.

In two further cases (Adobe/Magento and Adobe/Marketo) involving “mature markets” where the software had already been sold for about ten years, the court focused primarily on the revenue generated. If the revenue thresholds were not met, a “special degree” of domestic activity was required. Growth potential derived from the purchase price was not sufficient for this purpose, even if a German corporate presence existed. The Higher Regional Court thus made it clear that the transaction value threshold in established markets should not serve as a “circumvention” of the revenue thresholds.

4.2. BGH in the Meta/Kustomer Case – Setting the Course for a Broad Domestic Connection

With its decision in Meta/Kustomer, the Federal Court of Justice (BGH) has, for the first time, fundamentally addressed the applicability of the transaction value threshold and essentially confirmed the position of the Federal Cartel Office.

Key statements by the BGH:

Broad interpretation of domestic activity: Merely having technical access to data of domestic end customers can constitute “significant domestic activity” within the meaning of Section 35(1a) GWB. Neither significant domestic turnover nor a local presence in Germany is required.
Perceptibility threshold, but low requirements: The potential influence on markets resulting from domestic activity must reach a certain minimum intensity in the sense of being perceptible. However, the requirements for this perceptibility are not high for the notification obligation.

At the same time, a key question remains open: The BGH does not specify exactly when an activity — particularly one without a physical presence — crosses the threshold of “significance.” While this provides companies with guidance on the general direction of interpretation, they must continue to contend with considerable discretion in assessment and the associated legal uncertainty.

4.3. Implications for Practice

The Federal Court of Justice’s decision shows that parties to a merger must, when assessing whether a notification is required under the German law also take into account indirect customer relationships as well as indirect effects on the German market. The broad scope of application of Section 35(1a) GWB leads to greater legal uncertainty for affected companies.

Assessing the obligation to file a notification under the German transaction threshold rule thus requires a comprehensive evaluation of all factors relevant to competition.

It is to be hoped that case law will further clarify the contours of the transaction value threshold under Section 35(1a) GWB. The BGH will soon have the opportunity to do so in the Adobe/Magento and Adobe/Marketo cases, as the FCO has filed appeals against both decisions of the Higher Regional Court (OLG) Senate.

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5. “Killer Acquisitions” Increasingly in the Crosshairs of EU Antitrust Authorities: What Companies Need to Know Now

Killer acquisitions, which were long considered “blind spots” in merger control because they did not meet the revenue thresholds, are increasingly coming under the scrutiny of EU antitrust authorities. Since the ECJ’s ruling in the Towercast case (ECJ, C-449/21), such transactions can now be reviewed and prohibited under the rules governing abuse control. EU competition authorities are taking advantage of this new avenue and demonstrating considerable creativity in doing so, as evidenced by the French competition authority’s recent fine against Doctolib (Adlc, Decision of Nov. 6, 2025). Pandora’s box has thus been opened.

In this article, we provide an overview of the new practice of EU competition authorities and derive practical recommendations for corporate transaction practices from it.

5.1. What it’s all about

So-called “killer acquisitions” refer to takeovers in which companies acquire current or potential competitors to eliminate (potential) competition and consolidate their own market position.

Often affected are innovative, smaller startups that generate little or no revenue and thus do not exceed the revenue thresholds for merger control. This type of transaction was therefore long exempt from merger control.

5.2. Tools of antitrust authorities and decision-making practice

Since then, antitrust authorities, courts, and legislators have developed various means to address killer acquisitions, whether through abuse control, a call-in right, or a transaction threshold.

5.2.1. Art. 102 TFEU – Abuse of a dominant market position

In the Towercast judgment(C-449/21) of March 16, 2023, the CJEU opened the possibility of subsequently prohibiting mergers that, although not subject to merger control due to not exceeding the turnover thresholds, nevertheless have a negative impact on competition, as an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU).

In November 2025, the French Competition Authority (Autorité de la concurrence) made use of this option for the first time and imposed a fine — which, given the new legal situation, was (as yet) largely symbolic — on Doctolib for its acquisition of competitor MonDocteur.

The Dutch (ACM, press release of March 7, 2025) and Belgian (ABC, press release of November 12, 2025) competition authorities also show an affinity for this tool. In Belgium, companies have already abandoned planned acquisitions due to corresponding investigative proceedings (e.g., ABC, press release of July 29, 2025).

5.2.2. Call-in option

With a call-in right, a competition authority can require the notification of mergers even if they do not exceed the revenue thresholds. Often, additional criteria must be met, such as a threat to competition in the domestic market. The United Kingdom was the first European country to grant its competition authority, the CMA, a call-in right. Numerous EU member states have followed suit, including Bulgaria, Cyprus, Denmark, Ireland, Italy, Sweden, Lithuania, and Latvia. Other competition authorities, such as France’s Autorité de la concurrence, are also seeking to introduce such a call-in right, while Germany and Austria currently still rely on transaction thresholds.

The structure of call-in rights varies across jurisdictions. The common denominator is that the merger is likely to significantly impede effective competition, and the competition authority must conduct the review within a certain period after the transaction’s completion (e.g., 6 months in Italy, 4 months in the UK, 12 months in Lithuania). In Italy, certain revenue-based thresholds must also be exceeded. In the UK, while notification is voluntary, the CMA may review a transaction if revenue- or market-share-based thresholds are exceeded. In Lithuania, however, the call-in right is not tied to such thresholds.

The European Commission does not currently have a corresponding right of referral. Consequently, it initially attempted a “workaround” in the past: national competition authorities were expected to refer mergers to the Commission under Article 22 of the Merger Regulation, even if they formally had no jurisdiction to review the case (due to the national thresholds not being exceeded). Following the clear rejection of this attempted “high-wire act” by the Commission in the European Court of Justices’s (ECJ) Illumina/Grail ruling (ECJ strengthens legal certainty in EU merger control: Judgment in Illumina/Grail), the Commission has shifted to encouraging Member States to introduce call-in rights in order to establish the national jurisdiction necessary for a referral under Article 22 of the Merger Regulation. Italy has made use of this instrument, initially taking over the acquisition of the startup Run AI by NVIDIA via a call-in option and subsequently referring the case to the Commission. Although the Commission approved the merger, NVIDIA has nevertheless taken legal action against the referral request. The case is currently pending before the General Court.

The Commission does plan to amend the Merger Guidelines (Merger Control in Transition: What Lies Ahead at the EU and National Levels). However, the issue of a call-in right at the EU level is not mentioned in this context. Introducing such a power for the Commission would require an amendment to the EU Merger Regulation, which appears difficult given the unanimity requirement in the Council.

5.3. Transaction threshold

By introducing the transaction threshold provision in Section 35(1a) of the German Competition Act (GWB), the Federal Cartel Office (FCO) sought to significantly expand its ability to review killer acquisitions. However, in addition to reaching the transaction threshold of EUR 400 million, the target company must also demonstrate “significant” domestic activity, which can be difficult to prove in practice. The Federal Court of Justice has since clarified in the Meta/Kustomer case that domestic revenue is not strictly required to establish “significant” domestic activity. Other competition-relevant activities on the German market are sufficient—in the Meta/Kustomer case, the processing of German customer data was sufficient to establish “significant” domestic activity (Greater Legal Certainty Regarding the Transaction Value Threshold? Federal Court of Justice Upholds Federal Cartel Office’s Interpretation).

Meanwhile, however, the President of the FCO, Andreas Mundt, has also shown openness to the introduction of a call-in right, combined with volume-based thresholds. It remains to be seen whether such a change will already take effect with the 12th Amendment to the GWB.

5.4. Recommendations for Companies

Keep an eye on call-in risks: Particular caution is warranted when transactions below the thresholds in countries with call-in rights involve (even minimal) domestic activity. In such cases, the antitrust authorities may still subject these transactions to review under certain circumstances. Therefore, in these cases, the review must not be omitted.
Review transaction thresholds: For transactions exceeding the German (EUR 400 Mio) and/or Austrian transaction threshold (EUR 200 Mio), any relevant domestic activity must be carefully examined.
Assess risks of abuse: Companies with significant market power should examine whether a planned acquisition could subsequently be deemed an abuse of their dominant market position in order to avoid fines and ex-post divestitures.

Given the increasing complexity of the legal landscape, companies would be well advised to seek legal counsel at an early stage.

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6. Acqui-Hire: U.S. Criticism of Billion-Dollar Deals Without Merger Control Review

Acqui-hires (i.e., the poaching of key personnel and holders of know-how) are not a new phenomenon. For years, lawmakers and competition regulators have been concerned about the lack of antitrust review of this particular type of transaction.The focus here is less on the substantive competitive effects and more on the antitrust authorities’ lack of formal oversight authority, as “acqui-hires” generally do not meet the required thresholds for review. While billion-dollar deals in the tech industry continue unchecked, U.S. senators have recently called for tougher action by competition authorities.

6.1 New concern from the U.S.: Acqui-hires as “red flags” for innovation competition

In the U.S., the debate over acqui-hires picked up significant momentum again at the beginning of the year.

The head of the DOJ’s Antitrust Division described acqui-hires as “red flags” while U.S. senators even called on the Federal Trade Commission (FTC) to prohibit or reverse recent acqui-hire deals. The FTC announced that it would analyze the structure of such transactions more closely to identify criteria under which acqui-hires might still fall under merger control law.

The concern is further consolidation of the tech markets and the creeping elimination of innovation competition when promising talent and startups are “scooped up” by Big Tech at an early stage.

6.2. Acqui-Hire: A Familiar Problem and What Lies Behind It

6.2.1. What are acqui-hires?

At the heart of an “acqui-hire” (a portmanteau of “acquiring” and “hiring”) is the coordinated transfer or poaching of key personnel and key holders of expertise, typically accompanied by extensive licensing agreements — often worth billions.

This scenario frequently occurs with big-tech companies such as Microsoft or Google, which license a startup’s innovative technology (often in the AI sector) while simultaneously taking on key personnel to integrate the technology into their existing ecosystems without acquiring the company itself in the form of equity or “hard” assets (so-called AI partnerships).

6.2.2. Why are acqui-hires such a problem for competition regulators?

While opinions on the substantive competitive effects of acqui-hires diverge between critics and proponents, there is agreement on one point: acqui-hires are generally not subject to merger control.

Admittedly, there is likely now consensus that the poaching of highly qualified employees with specialized know-how regularly constitutes a merger within the meaning of the acquisition of assets or control, because the know-how holders to be acquired represent the competitive potential of another company (see, in the Microsoft/Inflection case, the press release from the German Federal Cartel Office (FCO) and the European Commission, as well as the CMA’s decision). However, the revenue-based transaction thresholds are generally not exceeded due to the insufficient revenue of innovative startups, even though acquirers regularly pay billions for these partnerships.

In the highly publicized Microsoft/Inflection case, the FCO was one of the first competition authorities worldwide to scrutinize an “acqui-hire” arrangement under merger control law in 2024 (FCO: Acquisition of Employees May Be Subject to Merger Control).

Although the agreement constituted a merger that also exceeded the new transaction threshold of EUR 400 Mio., the authority was nevertheless unable to review the merger due to Inflection’s lack of significant domestic operations in Germany.

6.3. Transaction Threshold as a Solution? Or New Legal Uncertainty?

While acqui-hires continue to increase in the tech industry (2025: Google/Windsurf, Meta/Scale AI, or most recently NVIDIA/Grog Cloud, valued at around USD 20 Bn.), authorities worldwide are seeking ways to capture these transactions under merger control law.

The FCO has so far viewed the transaction threshold as a suitable instrument for capturing acqui-hires. However, the President of the FCO, Andreas Mundt, is increasingly pointing out its weaknesses. He advocates for a reform of the “significant domestic activity” requirement. In the future, potential or future activities in Germany should also be taken into account. Furthermore, he is now open to the introduction of a so-called “call-in right” (“Killer Acquisitions” increasingly in the crosshairs of EU and German antitrust authorities).

This would significantly expand the authority’s scope of action — particularly with regard to acqui-hires—but at the same time increase legal uncertainty for companies and investors: The question of whether a deal is subject to notification would then be even harder to answer based solely on clear thresholds.

There is no definitive solution yet. What is clear, however, is that acqui-hires will remain a “hot topic” under antitrust law, particularly in the tech and AI sectors. It remains to be seen whether the 12th Amendment to the German Competition Act (GWB) will adjust the transaction thresholds in Germany accordingly.

Companies and investors should therefore always conduct an antitrust review of acqui-hire structures at an early stage, even if traditional revenue thresholds do not appear to be met at first glance.

We will keep you informed of further developments.

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