European Commission Asserts Merger Control Jurisdiction Over Non-Reportable Deals for First Time After Illumina/Grail

On August 17, 2023, the European Commission decided to review Qualcomm’s acquisition of the Israeli-based semiconductor company Autotalks, even though the deal was not reportable at EU or Member State level.

Just one day later, on August 18, 2023, the EC also accepted jurisdiction over another non-reportable deal - European Energy Exchange’s acquisition of Nasdaq’s European power trading and clearing business. 

Background

The EC’s back-to-back decisions mark only the second and third concrete applications of its policy reversal, announced in March 2021, to encourage national competition authorities (NCAs) of EU Member States to refer to the EC potentially problematic transactions that do not meet EU or national merger control thresholds.  The EC’s new policy allows an NCA to refer a transaction to the EC under Article 22 of the EU Merger Regulation at any time, including after closing.

Since the reversal of the EC’s interpretation of Article 22 and the referral of Illumina’s $8 billion acquisition of Grail in spring 2021 (which was subsequently prohibited), the EC is reported to have seriously considered several dozens of deals that did not meet EU or national merger control thresholds for review under Article 22 referral but no referrals had been made for more than two years. Qualcomm/Autotalks was thus only the second time the EC asserts jurisdiction for a transaction that did not meet any thresholds under its new policy.  EEX/Nasdaq Power quickly joined the list as the third.  The decisions come while a challenge to the EC’s jurisdiction under Article 22 EUMR by Illumina and Grail remains pending before the European Court of Justice (C-611/22 P).

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