GERMANY Trends and Developments Contributed by: Andreas Rosenfeld and Sebastian Steinbarth, Redeker Sellner Dahs
FCO’s view thereby contrasts with the opinions of other national competition authorities in the EEA as well as the European Commission’s. Call-in powers came into focus in September 2024 with the European Court of Justice’s (ECJ) ruling in the Illumina/Grail case. Three years ear - lier, in 2021, the European Commission issued new guidelines on Article 22 of Regulation (EC) No 139/2004, also called the EU Merger Regu - lation (EUMR). Pursuant to Article 22 EUMR, national antitrust authorities can forward trans - actions to the European Commission for review. In its new guidelines, the Commission had newly expressed the view that national antitrust authorities can forward transactions to the Euro - pean Commission for review under Article 22 EUMR even if they do not fall under the national thresholds for merger control. With this, the European Commission had effectively tried to turn the referral mechanism into a catch-all tool to control “killer acquisitions”. In Illumina/Grail , the ECJ rejected the Euro - pean Commission’s interpretation and decided that Article 22 EUMR does not apply to trans - actions that are not covered by either EU or national merger rules. It further emphasised that the referral mechanism was not meant to be a catch-all corrective, but rather a supplement to the existing turnover-based system. The ruling has triggered discussions in many member states as to how to fill the perceived gap in the EU and national merger control regime, with call-in powers taking centre stage. While countries such as Italy, Hungary, Ireland, Lat - via, Norway, Slovenia and Sweden had already introduced call-in powers for their own national competition authorities, competition authorities in France, the Netherlands and Finland are heav - ily lobbying for their introduction. In Germany, on
the other hand, neither the FCO nor the Federal Ministry for Economic Affairs and Energy see any reason to introduce such call-in powers. FCO President Andreas Mundt recently explained this stance with the need to maintain predictability and legal security in formal merger control. And despite all concerns regarding “killer acquisi - tions”, it does indeed seem prudent not to for - get the bureaucratical obstacles and uncertainty unlimited call-in powers create for companies interested in merging, especially at a time when calls for cutting red tape are getting louder and louder. Even though the European Commission has withdrawn its 2021 guidelines on Article 22 EUMR following the ECJ judgment in Illumina/ Grail , there is no peace and quiet at EU level either. Following a lawsuit filed by Nvidia against the European Commission in January 2025, the European courts must now decide whether transactions may be referred to the European Commission under Article 22 EUMR in cases where national jurisdiction for merger control exists but relies solely on discretionary call-in powers. Nvidia argues that the acceptance of such a referral violates the history, system and purpose of Article 22 EUMR. Hence, the dispute over call-in powers and Article 22 EUMR is far from settled. Merger Review by German Courts In a decision of 16 January 2024, the German Federal Court of Justice expressed clear doubts about the competence of the FCO to review the compliance of companies with their commit - ments made to the Commission during merger control proceedings. Following a commitment decision by the Euro - pean Commission regarding the merger of Tel - efónica Deutschland with E-Plus, the FCO had
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