INTRODUCTION Contributed by: Jean-François Bellis and Porter Elliott, Van Bael & Bellis
pete more effectively on the global stage with rivals from the United States, China and else - where. Commissioner Ribera and her staff at the Direc - torate-General for Competition are currently reviewing both the Commission’s horizontal and non-horizontal merger guidelines. What the new guidelines will look like when they eventu - ally come out and what practical effect they will have, if any, on the Commission’s assessment of mergers, especially those between European companies, remain to be seen. Meanwhile, the issue of whether and where in the EU a merger may need to be filed has become increasingly complex. As has been the case since the first EU Merger Regulation (EUMR) in 1989, transactions that do not meet the thresholds of the EUMR may be subject to review by the competition authorities of EU member states whose national filing thresholds are met. However, an increasing number of EU member states are now adopting “call-in” pow - ers that allow their competition authorities to take jurisdiction over transactions that fall below their filing thresholds and would otherwise not require merger control review. As a result, it is no longer possible to rule out the review of below- threshold mergers in these member states. There is also the possibility that mergers that are “called in” by a member state could sub - sequently be referred to the Commission for review, possibly even after closing has taken place, significantly lessening the legal certainty once enjoyed by merging parties. United States The election of President Donald Trump to a second, non-consecutive term has led to con - siderable upheaval at the two federal agencies
responsible for US merger control enforcement. Former Chair of the Federal Trade Commission (FTC) Lina Khan, whose envelope-pushing inter - ventionism made her a polarising figure on both sides of the aisle, has been replaced by Andrew Ferguson, who was promoted from FTC com - missioner to Chair. Trump also dismissed Khan’s fellow Democratic commissioners, leaving only Republicans as FTC commissioners. Meanwhile, Gail Slater replaced Jonathan Kanter as head of the Antitrust Division of the Department of Justice. Despite some clamouring to scrap the 2023 Merger Guidelines issued under the Biden administration and revert to the previous guide - lines, both the FTC and Department of Justice have now indicated that this will not happen. Nevertheless, there will no doubt be changes in how mergers are reviewed in the US. Under Ferguson and Slater, the US agencies are widely expected to take a more open view than their predecessors to remedies as a means of solving competition concerns. This willingness to find a way to clear problematic deals may encourage more such details to be filed. This is not to suggest that US merger control enforce - ment will not continue to be rigorous, especially in certain sectors such as Big Tech. The adminis - tration was not known to be soft on merger con - trol during Trump’s first term. Rather, compared to the Biden administration, US merger control enforcement in the current term is more likely to be “old school” than “new wave”. One new development that merging parties should be aware of is that the US has recently taken a page (or rather many pages) from the EU, introducing a much more detailed Hart-Scott- Rodino (HSR) merger filing form. This new form
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