Recent developments have made navigating multinational antitrust merger reviews even more complex and replete with traps for the unwary. We discuss below recent developments in several jurisdictions (emphasizing the United States, the European Union (EU), the United Kingdom (UK), and China) and antitrust considerations that merging parties should evaluate carefully before entering into transactions—especially potentially controversial ones—that will be reviewed in multiple jurisdictions. An effective strategy requires that parties account for each reviewing (or potentially reviewing) jurisdiction’s idiosyncratic procedural and substantive merger review process and the interplay among them. Thoughtful attention to these considerations can increase the odds of getting deals through and save many months of review and enormous costs and burdens.
Key Points
- In the United States, the early indications are that aggressive merger enforcement will continue under the Trump Administration. The Department of Justice (DOJ) and Federal Trade Commission (FTC) have both made clear, however, that, unlike DOJ in the Biden Administration, they are open to resolving antitrust concerns through settlements that resolve perceived threats to competition. They have both also emphasized that they will depart from what they claim were Biden-era practices that unduly chilled deal activity or placed unnecessary burdens on merging parties.
- The European Commission (EC) and EU Member States are seeking to strengthen their power to review non-notifiable transactions. They are exploiting new or strengthened call-in powers in certain EU Member States, allowing for more national reviews and for more case referrals to the EC of potentially controversial transactions.
- The UK Competition and Markets Authority (CMA) has recently announced changes designed to make its processes more business-friendly and avoid extended reviews of transactions that have relatively low salience for UK markets or will be thoroughly reviewed and, if necessary, remedied in other jurisdictions.
- China recently doubled its notification thresholds for notifiable transactions. But, likely relatedly, China’s State Administration for Market Regulation (SAMR) has for the first time started requesting “voluntary” notifications of non-reportable foreign-to-foreign transactions. That has introduced an element of unpredictability and can lead to unanticipated delays in closing timelines.
- Given these and developments in other jurisdictions, early and careful consideration of timing expectations, antitrust risk-shifting provisions, and merger clearance strategy is an even more essential component of successful dealmaking.
United States
Early indications are clear: in the second Trump Administration, DOJ and the FTC will closely scrutinize and take aggressive enforcement action against mergers that they determine threaten competitive harm. We will not be returning to anything that could be described as the laissez-faire enforcement that arguably characterized some earlier Republican-led antitrust regimes. Indeed, in recent speeches, leaders of both agencies have placed more emphasis on criticizing the anti-interventionist views of some members of the MAGA coalition than on criticizing Biden-era antitrust enforcement (see our prior alert here). Consistent with these remarks, FTC and DOJ leadership have issued memoranda to staff instructing them to continue to apply the 2023 Merger Guidelines, which adopted a more interventionist approach to merger enforcement than previous guidelines did, and there has been no movement toward repealing or modifying the new Hart-Scott-Rodino Act (HSR) pre-merger notification form that requires substantially more information from notifying parties (see our prior alert here). Moreover, both agencies have continued cases that were initiated or pursued during the Biden era.1
Nonetheless, there will be changes from the Biden era at both agencies that can have important practical implications for merging parties. First, DOJ has already demonstrated that it is changing the Biden Administration’s near-uniform policy of refusing to resolve merger investigations through settlement. In the Biden Administration, DOJ agreed to resolve only one merger investigation through a consent decree, and that happened during litigation.2 DOJ’s stance sometimes resulted in parties offering a “fix it first” remedy, without a consent decree process, and challenging the agency to either close its investigation based on that remedy or litigate over the remedy’s adequacy.
Current DOJ (and FTC) leadership, however, have made plain, through statements and actions, that they are open to resolving merger investigations through negotiated consent decrees that they believe will clearly resolve antitrust concerns.3 The FTC announced its first merger consent decree of the second Trump Administration in late May, requiring merging parties Synopsys, Inc., and Ansys, Inc., to divest certain businesses.4 The following week, DOJ announced its own first consent decree of the new administration, requiring parties Keysight Technologies, Inc., and Spirent Communications PLC to divest businesses.5 (WilmerHale represents the divestiture buyer in the Synopsys-Ansys transaction and the acquirer in the Keysight-Spirent transaction.) Subsequent settlement announcements from both agencies followed.6
Current DOJ leadership has also criticized fix-it-first remedies that are effectuated after merging parties submit HSR notifications. In a recent speech, DOJ Deputy Assistant Attorney General (AAG) Bill Rinner expressed concerns that such transactions improperly sidestep the public process that the Tunney Act requires.7
Parties contemplating mergers that are likely to require a remedy are well advised to carefully consider their options given the agencies’ views on remedies. In some circumstances, it may be feasible to save many months of closing delay by carving out from the transaction before making HSR notifications assets that can be anticipated to become the subject of agency opposition, potentially through the target retaining those assets or a third-party buyer. This approach, of course, can involve difficult business considerations, particularly if the carve-out impedes the acquirer’s deal objectives. The agencies, moreover, may assess whether the carve-out method could harm competition—e.g., because assets are sold to a market competitor or a firm that is incapable of competing effectively with them.
Given the new agency leadership’s openness to settlements, merging parties may find it more advantageous to avail themselves of the remedy process to address antitrust concerns that cannot be resolved. Settlement processes will typically provide much greater outcome predictability than a fix-it-first process that may well leave parties uncertain until the final stages about whether they will be litigating with the agency.
In all cases, it is imperative that parties contemplating a potentially controversial transaction carefully consider their strategy for addressing potential remedies early in the deal planning process. Doing so can be critical to avoiding unnecessary delays, impairment of deal objectives, and value loss.
Finally, although businesses must expect aggressive federal antitrust enforcement against mergers that an agency concludes will lessen competition, they may benefit from a more business-friendly procedural environment at both agencies. This could result in speedier and less burdensome antitrust reviews for some transactions. For example, the agencies have restarted the practice of granting early termination of the HSR waiting period for transactions that clearly do not raise antitrust concerns, consistent with prior announcements.8 The early termination program had been abandoned in the Biden era.
Insofar as the current antitrust agency leadership has criticized their immediate predecessors, they have mostly done so regarding procedures that they argue were unnecessarily unfriendly to business and dealmaking. FTC Chair Ferguson has said that his agency is willing to provide merging parties with greater insight into the merger review process while avoiding undue procedural delay that he claims unduly chilled deal activity, stating, “The FTC is not going to try to use sort of sub-regulatory means to hold up mergers without actually taking people to court . . . . That’s over.”9 In a recent speech, DOJ Deputy AAG Bill Rinner described several policy changes DOJ has implemented to address procedural problems he identified in merger enforcement during the Biden Administration. These include decisions not to (1) send “close at your own peril” letters for transactions the agency decides not to challenge, as was frequent under the Biden Administration; (2) leverage the threat of “enforcement to accomplish policy objectives that are clearly beyond the law”; and (3) issue second requests in furtherance of a civil or criminal conduct investigation.10
European Union and Its Member States
Until recently, the overwhelmingly turnover threshold-based merger control systems in the EU and its Member States generally gave merging parties a high degree of certainty about whether the EC or national competition authorities would review their deal. In the past few years, however, efforts by the EC and EU Member States to review transactions that were not notifiable have dented this certainty. Merging parties are facing new risks that non-reportable transactions may encounter extended investigations at the EU or Member State level. While this risk does not affect every deal, parties contemplating a transaction that could prove controversial from an antitrust perspective should plan ahead for the possibility that their deal could be investigated or even blocked in jurisdictions where it is not reportable. If their deal concerns European markets with strategic importance (e.g., semiconductors, biotechnology, platform economies), the parties should be especially cognizant of this risk.
First, importantly, the EU’s Court of Justice judgment in Illumina/GRAIL, which found that the EC lacked jurisdiction to review that deal, did not eliminate the EC’s ability to seek to review so-called “killer acquisitions” that do not meet the thresholds for an EU notification under the EU Merger Regulation (EUMR). Under Article 22 EUMR, Member States always have had and still have the right to request EC review of transactions that are not reportable to the EC but that they believe are likely to impede competition. While it has long been generally accepted that EU Member States can request referral of a transaction to the EC if they have jurisdiction to review the case under their own national competition laws, the EC’s guidance published in 2021 broadened the scope of potential referrals. The guidance also allowed for referral requests from Member States that lacked jurisdiction to review the deal (e.g., because the target company’s sales in the relevant country were below a defined turnover threshold).
Shortly thereafter, competition authorities from several EU countries requested that the EC review Illumina’s acquisition of GRAIL. Even though the deal did not meet the EU’s merger control thresholds and was also not notifiable in the EU Member States that requested the referral, the EC agreed to review the transaction and ultimately prohibited it. In September 2024, however, the Court of Justice annulled the EC’s decision accepting the referral of the transaction. The judgment rejected the notion that the EC could review mergers below the EU’s jurisdictional thresholds through referrals from national authorities that are not authorized to review such mergers under their national competition laws. The judgment underlined the importance of predictable rules that define the EC’s competence to review mergers and the merging parties’ need for legal certainty (see here).
Despite this judicial setback, the EC continues to seek ways to review non-notifiable acquisitions under Executive Vice President Teresa Ribera Rodriguez’s leadership.11 While the Illumina/GRAIL judgment bars the EC from accepting referral requests from Member States that lack jurisdiction to review the deal themselves, it can still accept referral requests from Member States that have national jurisdiction. Expanding the scope of national review regimes therefore also broadens the scope of potential EC referrals. The EC is now encouraging EU Member States to introduce or strengthen “call-in powers” that enable their national competition authorities to request notification of below-threshold deals, which would then provide a mechanism for the national authority to refer the deal to the EC.12
Many EU countries already have given call-in powers to their competition authorities or are creating or strengthening them.13 These call-in powers can create substantial uncertainty, even if they are not used to refer mergers to the EC but rather are used as a basis for reviews by national competition authorities.
The EC’s ability to review transactions referred by a national authority that called in a below-threshold transaction will be tested in an appeal pending before the EU’s first instance court.
Second, Germany and Austria introduced transaction value thresholds to expand the scope of their national merger control regimes in 2017. Both countries’ authorities have adopted broad interpretations of the legislative standards and have used the new thresholds to review transactions in online, pharma, and technology markets. But recent court decisions in both countries call the future breadth of this strategy into question.14
Third, national competition authorities have recently launched a series of general competition law investigations into acquisitions that do not meet national merger control notification thresholds. These follow from the Court of Justice’s 2023 ruling in Towercast (see here), which allows national competition authorities to investigate transactions under Articles 101 and 102 of the Treaty of Functioning of the European Union (TFEU), which prohibit anticompetitive agreements and abuse of dominance, respectively. For example, Belgium began investigating smaller deals in the flour and telecommunications markets, France in the meat-cutting sector, and the Netherlands in the cash transport industry. While these investigations have so far focused on national markets, they could also extend to non-reportable deals that may affect competition in broader markets. This is most likely to happen where a Member State has a particular interest in a deal, e.g., because the seller has substantial assets in the Member State’s territory.
United Kingdom
The UK Labour government has stated it will prioritize the need for economic growth, and it has called on all regulators, including the UK CMA, to contribute to this agenda.15 In January 2025, the UK government replaced Markus Bokkerink as chair of the CMA. The interim chair, Doug Gurr, has stated that he wants to create “a regulatory environment that encourages the greatest possible level of business investment.”16
To promote this pro-business agenda, the CMA has committed to implementing four key principles—or the “4Ps”: pace, predictability, proportionality, and process—in all aspects of its work. In merger investigations, the CMA adopted a goal to minimize the burden on businesses and attract foreign investment into the United Kingdom while allocating its resources predominantly to transactions with a distinct and direct UK impact, rather than those where the UK has less interest and another authority will review the transaction and potentially impose remedies that would resolve UK concerns.17
The CMA’s Mergers Charter, published on March 12, 2025, explains both how the CMA will operate to ensure the 4Ps during merger reviews and what the CMA expects from businesses.18 The emphasis on the 4Ps, including proportionality, may result in the CMA declining to investigate certain transactions if other authorities will investigate them and impose remedies that would address any issues that may arise in the United Kingdom. It may also lead to greater use of CMA discretionary powers such as its ability not to refer a transaction for a Phase II investigation even where it has identified concerns at the end of Phase I. This “de minimis exception” has been applied three times in the last eight months, most recently in the CMA’s review of the Keysight-Spirent deal. (WilmerHale represented Keysight in that CMA review.)
Revised UK jurisdictional thresholds became applicable in January 2025 under the Digital Markets, Competition and Consumers (DMCC) Act, 2024. Notably, these allow the CMA to review transactions that do not give rise to any horizontal overlap, so long as the target has a UK nexus. Similar to the obligations on gatekeepers under the EU’s DMA,19 the DMCC obliges companies designated as having strategic market status (SMS) to report certain transactions to the CMA and requires that these transactions not be closed before expiry of a five-working-day period.20 This reporting obligation is not, however, an obligation to make a full merger notification to the CMA. The DMCC’s jurisdictional rules do not change the voluntary nature of UK filings and leave it up to parties to decide whether to approach the CMA.
Notwithstanding recent changes of emphasis, we would expect the CMA to continue to closely review deals that it views as potentially problematic and, on occasion, reach decisions that differ from those of other authorities. The best post-Brexit example of this outcome is Microsoft/Activision, where, unlike the EC, the CMA blocked the transaction, and then only approved a revised version of the transaction subject to additional commitments. There are also other, more recent examples of the CMA requiring extensive remedies.
These developments demonstrate that the CMA has become one of the four leading regulators in merger reviews quickly after Brexit and can be a major source of regulatory risk. The new jurisdictional thresholds will capture some transactions that would otherwise not have been caught. Parties accordingly need to consider carefully whether to bring deals to the CMA’s attention voluntarily and benefit from the opportunity to frame issues at the outset and, therefore, potentially avoid delays from an investigation that comes long after deal signing.
China
In January 2024, China amended its thresholds for reportable transactions, raising both the combined worldwide and China-wide turnover thresholds. The amendment marks the first time that China revised its turnover thresholds since 2008, and while external factors may be at play, early reporting suggests the increased thresholds may have allowed SAMR to focus its merger review: the number of merger cases SAMR concluded went from 797 in 2023 to 643 in 2024.21 Given this, parties to transactions that are notifiable under the increased thresholds may see more significant engagement from SAMR, including potentially a broader set of requests for information on market data and information related to various aspects of the proposed transaction.22
Importantly, SAMR has shifted from its long-standing practice of not calling in non-reportable foreign-to-foreign transactions. Non-reportable deals are particularly likely to be reviewed if the transaction implicates sectors deemed of interest to China’s industrial or national security policy (e.g., technology, telecommunications, or semiconductors) or either party has a large presence in, or sells significant volumes into, China. SAMR may scrutinize deals involving a US acquirer of a non-US company if it believes that the transaction could affect the security of supply of products or services to Chinese customers, even if the transaction does not raise traditional antitrust concerns in a relevant market. More generally, US-based companies should anticipate the possibility of focused antitrust scrutiny from SAMR, given current economic trade tensions.
Against this backdrop, parties to a proposed transaction that is not reportable but may prove controversial in China should consider carefully whether to proactively engage with SAMR where there is a risk that SAMR may open an investigation and eventually call in the transaction. That risk may be particularly significant where a transaction implicates a high-tech or other industry where China may have a particular interest or where there may be a complaint about the transaction—e.g., from a domestic Chinese industry participant (such as a competitor, customer, or industry association) or a disappointed bidder for the target. It is important to recognize that a SAMR request, especially if it comes many months after a deal is announced, can substantially delay deal closing.
There are potential benefits to proactively engaging with SAMR. First, it offers the potential for a faster time to clearance, compared to a scenario where SAMR collects market feedback, builds a case, and potentially calls in the transaction late in the pre-closing period. A proactive approach may also allow parties to better align review timelines across jurisdictions by influencing SAMR’s timing.
Second, the parties may better position themselves to frame the issues and counter complaints from third parties by voluntarily engaging with SAMR up front and potentially making a voluntary filing. To call in a transaction, SAMR must determine that “there is evidence that the concentration has or is likely to have the effect of eliminating or restricting competition,”23 and early engagement may reduce the odds that SAMR will make that determination.
That said, there are substantial possible downsides to voluntarily engaging with SAMR regarding a non-reportable transaction. Foremost among these is the possibility of encouraging SAMR to initiate an intensive investigation of a deal that otherwise might have gone unnoticed or not have resulted in a substantial investigation. Parties will need to weigh these considerations in the fact-specific context of their transactions.
Other Jurisdictions
Below, we highlight some developments in other jurisdictions that will have important implications for some transactions:
- Australia recently passed a law introducing a mandatory and suspensory merger control system that will take effect on January 1, 2026, with the option for businesses to choose to notify under the new regime beginning on July 1, 2025.24 All transactions that meet the notification thresholds, which will be established later in a legislative instrument, will be required to be notified to the Australian Competition and Consumer Commission, which will have to complete its Phase I reviews within 30 business days. This mandatory system will replace the current voluntary system in Australia and is consistent with a worldwide trend of jurisdictions intensifying their merger control efforts.
- In 2022, the Turkish competition authority introduced specific thresholds for acquisitions targeting “technology undertakings” that are active, engaged in R&D, or serving users in Turkey. This has the potential to significantly increase the number of notifiable transactions in Turkey. Technology undertakings are broadly defined to include companies active in or assets related to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals, and health technologies. The Turkish authority’s only gun-jumping fine under the new rules appears to be the one imposed on Elon Musk in his acquisition of Twitter/X.25
- In April 2025, Washington became the first US state to enact the Uniform Antitrust Premerger Notification Act, which requires parties to certain notifiable transactions under the HSR Act to simultaneously submit their HSR filings to the Washington State Office of the Attorney General. This marks the first time any US state has imposed a premerger notification requirement that applies to transactions in all industries (see here). In June 2025, Colorado became the second US state to enact the Uniform Antitrust Premerger Notification Act.
Practical Considerations
Given the nuanced differences among merger control regimes around the globe, parties will need to think critically about the implications of multinational transactions early in the deal planning process. Antitrust evaluations and planning for multinational transactions should account for the following dynamics:
- Notification thresholds/non-reportable transactions. As discussed above, competition authorities, including in China, the EU, and many of its Member States, have taken a more aggressive approach to reviewing transactions where mandatory notification is not required. In practice, this means merging parties will need to evaluate any antitrust risks for non-reportable transactions in these jurisdictions if there are substantial horizontal, vertical, or other, non-horizontal relationships between the merging parties.
- Cooperation among authorities. Companies should develop consistent and well-informed advocacy across jurisdictions, recognizing that officials in one jurisdiction may consider information provided to, and consult with, authorities in another jurisdiction.
- Geopolitical turmoil. Companies will also need to closely evaluate deal risk that may be affected by geopolitical tensions. For some deals, those tensions could create or intensify risks of prohibitions or demands for remedies or delayed closing timelines. This is particularly true for deals involving US companies that will or may be reviewed in China, given the current trade tensions between the countries.
Conclusion
Given recent developments, it has become even more imperative that parties to transactions that may face antitrust reviews in multiple jurisdictions work closely with antitrust counsel to develop a proactive plan to minimize substantive and timing risks.
Footnotes
