Key Facts
United States
- 2024 ended with 17 concluded significant merger investigations, the second-lowest total in DAMITT’s 14-year history, behind only the record-low 12 concluded in 2023 also under the Biden administration.
- Only three significant investigations concluded with a settlement in 2024, remaining near DAMITT’s record low of only one in 2023 as the agencies continued to disfavor consent orders.
- Despite the low total number of significant investigations, abandonments remained high, setting a new DAMITT record with a total of nine in 2024.
- For HSR-reportable transactions litigated to a decision on the merits in federal court, the Biden administration finished with a lower victory rate than both the Obama (62 percent) and Trump (56 percent) administrations.
- Significant investigations in 2024 lasted an average of 11.3 months – slightly longer than last year’s average of 10.6 months, but nearly the same as the overall average of 11.2 months since 2017.
- The new HSR Rules currently set to take effect on February 10, 2025 could extend the duration of merger reviews, but implementation of the new rules could be delayed or canceled by the new administration.
European Union
- With only 10 significant merger investigations concluded in 2024, the EU Commission set a new record low; the EU intervention rate also dropped to an all-time low at two percent, but the percentage of significant investigations resulting in a blocked or abandoned transaction rose to 20 percent.
- The average duration of Phase II investigations skyrocketed to more than 22 months in 2024, while the average duration of Phase I remedy cases settled at 11.2 months, still 20 percent above the 2019-2023 average.
- The EU Commission increasingly requires parties to suspend closing until a remedy purchaser is approved, both in Phase I and Phase II cases, adding further delays to the deal timetable.
- With new EU Commission leadership focused on EU resilience, and a revamped approach to potential killer acquisitions relying on Member States call-in powers, 2025 is a year to watch for merger control.
U.S. Significant Merger Investigations Under Biden Finished Well Behind the Prior Trump and Obama Administrations
The Number of Significant Merger Investigations in 2024 Surpasses 2023, but Remains Near DAMITT Record Lows
A total of 17 U.S. significant merger investigations concluded in 2024, representing the second-lowest total in DAMITT history, behind only the Biden administration’s total of 12 in 2023. By comparison, DAMITT’s 14-year average is 26 significant investigations per year. All three of the Biden Administration’s final full years fell well below this average at 20, 12, and 17 months, respectively.
Traditionally, Q4 has tended to be a busy period for significant investigations to conclude as companies often seek to wrap up reviews by year end. But in 2024, only one significant merger investigation concluded, with the proposed UnitedHealth/Amedisys merger heading to litigation. The U.S. agencies instead appear to have focused resources on completing ongoing litigations and filing new antitrust conduct-related lawsuits.
The average length of significant investigations grew over last year, increasing to 11.3 months in 2024 compared to 10.6 months in 2023. This 2024 average finished close to the 11.2-month average since 2017. But it is still far above the 8.1-month average observed between 2011 and 2016.
Out of 17 total concluded significant investigations, seven took 10 months or less, with over half of those seven concluding with an abandonment. On the other hand, two of the top three longest significant investigations this year resulted in abandonments, so no clear relationship exists between the length of time and the ultimate outcome of significant investigations.
If the new HSR rules are implemented on the current effective date of February 10, 2025, they would likely increase the average duration of significant investigations due to the longer time needed to prepare filings. But implementation is not a done deal. The new rules are being challenged in federal court and may be enjoined either temporarily or permanently. In addition, President Trump issued an executive order instructing administrative agencies to reconsider any new rules passed under the Biden Administration that have not yet gone into effect. By February 10, 2025, these open issues are likely to be at least partially answered.
FTC vs. DOJ Comparison Highlights Potential Differences Between the Agencies
The U.S. system of two antitrust agencies reviewing mergers has been a source of debate for antitrust lawyers and consternation for merging companies for quite some time. Legislative bills to consolidate federal antitrust enforcement, including merger review within DOJ’s Antitrust Division, have been introduced in several recent sessions of Congress.
While it is difficult to handicap the odds of this legislation becoming law, DAMITT has reviewed the number and duration of significant merger investigations at the FTC and DOJ to assess existing differences and similarities between the agencies in recent years.
In seven of the past eight years, the FTC has completed more significant investigations than DOJ, with 2021 being the only exception where DOJ completed more than the FTC. Between 2017 and 2024, the FTC completed an average of 14.3 significant investigations per year, compared to 8.9 per year for DOJ. This disparity in the number of investigations completed by the FTC and DOJ does not necessarily reflect a difference in the aggressiveness of the agencies in investigating or challenging mergers. Rather, the difference may be the result of variations in the number of HSR filings reviewed by each agency, which is largely driven by the industries typically handled by each of the FTC and DOJ.
Between 2017 and 2024, the average annual duration of FTC significant merger investigations was 11.5 months, compared to 10.9 months for DOJ. The FTC took longer on average than DOJ in five of the past eight years.
When we last evaluated this metric in our DAMITT 2020 Annual Report, we observed that 2020 marked a return to the historical norm of this gap in average durations between the two agencies consistently being less than one month. Taking into account the last four years, that gap in average durations historically has been less than a month and a half.
These results provide fodder for each of the FTC and DOJ. On the one hand, the FTC conducts a higher number of significant investigations per year on average than DOJ, allowing it to claim more experience. On the other hand, DOJ takes less time on average than the FTC to complete its significant investigations, allowing it to claim greater efficiency. Together, a single agency ideally would be both more efficient and more experienced while providing greater uniformity in process and outcomes for merging companies.
Average U.S. Merger Litigation Duration Falls in 2024
The FTC led all three decided merger litigations filed in 2024 and ultimately prevailed in each of those matters. The FTC obtained preliminary injunctions blocking Kroger/Albertsons and Tapestry/Capri. Although the FTC was denied a preliminary injunction by the district court in Novant Health/Community Health Systems, the hospitals decided to abandon the transaction after an appellate court granted an injunction preventing closing during the appeal.
Merger litigations filed in 2024 lasted on average 203 days (6.8 months), dropping by over a month from the 2023 average of 241 days (8.0 months). The 2024 average litigation duration of 203 days is just under the 10-year average of 216 days. The lengthiest merger litigation in 2024 was Kroger/Albertsons, which lasted 289 days from complaint to decision (Dechert co-represented Albertsons in that litigation). In contrast, the shortest merger litigation in 2024, Novant Health/Community Health Systems, lasted only 133 days.
Comparing U.S. Merger Enforcement Across the Obama, Trump, and Biden Administrations
Despite the Hype of the Biden Administration’s Aggressive Merger Enforcement Approach, the Obama and Trump Administrations Were More Active
The Biden administration aimed to be aggressive on mergers, but DAMITT data show the rhetoric may not have been supported by action. Under Biden, the antitrust agencies concluded fewer significant merger investigations and had a lower intervention rate compared to both Trump and Obama. However, the Biden administration took more of an all-or-nothing approach by frequently either clearing deals unconditionally or seeking to block them outright. This approach resulted in few merger settlements under Biden but a record-high percentage of significant merger investigations ending with complaints or abandoned transactions.
Under Biden, the two U.S. agencies concluded 77 significant merger investigations (including AmexGBT/CWT in January 2025 ending in a complaint prior to Trump’s inauguration), a 29 percent decrease from Trump’s 109 significant investigations and a 36 percent decrease from Obama’s 120 significant investigations over his final four years in office. The available data shows 0.6 percent of transactions notified during the Biden administration resulted in a significant investigation, compared to 1.4 percent under Trump.
The intervention rate is the number of significant merger investigations for all transactions notified to the agencies during a Presidential administration divided by the total number of HSR transactions notified during the same administration. For consistency across years, because investigations under the HSR Act are non-public, DAMITT focuses on significant investigations which reflect publicly available agency actions.
As noted in the DAMITT 2023 Annual Report, comparing our data with the agencies’ HSR report reveals that the decline in the percentage of transactions resulting in significant merger investigations often parallels the trend in the number of transactions receiving Second Requests. According to the agencies’ HSR Report, the Biden administration was a low-water mark for merger enforcement when comparing the percentage of reported transactions leading to Second Requests and significant merger investigations, as compared to Trump’s first term and Obama’s last four years in office.
Despite the decline in significant merger investigations and intervention rates, a higher percentage of these investigations led to a complaint or abandonment under Biden compared to Trump and Obama. Under Biden, 62 percent of significant investigations resulted in either a complaint or abandonment compared to 25 percent under Trump and 23 percent during Obama’s last four years. Of the HSR-reportable transactions that were litigated to a full trial on the merits or a preliminary injunction hearing in federal court, Biden’s agencies had a lower win rate than the Trump and Obama administrations. Under Biden, the agencies won 50 percent of the time, compared to 56 percent for Trump and 62 percent during Obama’s last four years. Notably, the Biden antitrust enforcers expressed concern about the cost of underenforcement and therefore signaled their intention to seek to block more deals even at the expense of their win rate. Under Biden, the FTC and DOJ also issued the 2023 Merger Guidelines with significant changes from the 2010 Horizontal Merger Guidelines intended to increase enforcement.
As previously reported, the Biden administration was significantly less likely to resolve significant merger investigations with settlements. DAMITT data shows that only 38 percent of significant merger investigations concluded with a consent decree, compared to 70 percent under Trump and 71 percent during Obama’s last four years. Notably, since Jonathan Kanter became the Assistant Attorney General for Antitrust in November 2021, Biden’s DOJ did not enter into any public pre-complaint settlements. Conversely, the FTC resolved 16 significant merger investigations with settlements after Lina Khan became Chair, including 12 consent decrees requiring divestitures. The remaining four consent decrees addressed concerns about interlocking directorates under Section 8 of the Clayton Act, but they did not involve allegations that the merger itself was anticompetitive under Section 7 of the Clayton Act. Interlocking directorate consent decrees typically require certain board members to resign to eliminate the interlock, but they do not require divestitures or other structural relief as is typical for mergers alleged to be anticompetitive by the agencies.
The Biden administration sought to revise long-standing HSR notification requirements, which are expected to increase preparation time and costs. But implementation of these rules is in jeopardy prior to the currently scheduled effective date of February 10, 2025. A private plaintiff filed a lawsuit in federal court seeking to enjoin implementation. In addition, President Trump recently issued an executive order instructing administrative agencies to reconsider all new rules passed under the Biden administration that had not yet gone into effect. The FTC is currently considering what action to take in light of President Trump’s directive.
Looking Ahead to the Return of Trump
Although a change in the presidency creates uncertainty, the past is often prologue and provides insight into how the second Trump administration may approach antitrust merger reviews.
Increased Significant Merger Investigation Activity: We anticipate significant merger investigations may return to levels similar to Trump’s first term.
Prior to the Biden administration, the data show relative stability in the volume of significant merger investigations across both Republican and Democratic administrations. Overall, the Trump administration averaged 27 significant merger investigations per year compared to just 19 per year under Biden and 30 per year during the final four years of the Obama administration. If interest rates continue to decline, more merger activity is also expected.
A Return of Pre-Complaint Settlements: There is reason to be hopeful on the merger settlement front. We expect the incoming Trump enforcers to be more receptive to settlements involving divestitures or behavioral remedies, similar to Trump’s first term and Obama’s final four years in office. This would mark a positive change for merging companies compared to the Biden enforcers’ skepticism toward settlements, likely resulting in fewer complaints and abandonments but more consent decrees. The incoming Trump administration may be less likely to pursue the atypical remedies accepted under Biden that do not address Section 7 concerns involving the competitive effects of mergers. In fact, Commissioners Ferguson and Holyoak strongly dissented from the only two such atypical settlements approved since taking office, warning in a joint statement: “The Commission should not leverage its merger enforcement authority – or any authority – the way it does today.”
Tackling the Length of Merger Investigations: The Trump administration may look for ways to streamline significant merger investigations, but it may be difficult for the agencies to substantially reduce the duration. During Trump’s first term, DOJ Assistant Attorney General for Antitrust, Makan Delrahim, acknowledged that the increasing duration of merger reviews was as a “problem” and “committed to accelerating the pace of merger review.” Ultimately, however, the agencies during Trump’s first term were not successful in reversing the trend toward longer reviews. DAMITT data show there was no significant difference in the duration of significant investigations between Trump’s first term and the Biden administration, with averages of 11.2 and 11.3 months, respectively.
The change in administrations right before new HSR filing requirements are implemented has created uncertainty as to when, if, and if so, in what form, these new rules may go into effect. The new HSR rules, which would become effective February 10 barring agency action or court intervention, are expected to increase the burden on filing parties. This increased burden likely would lead to longer merger reviews overall. The FTC’s two Republican Commissioners voted to approve the new rules after securing certain concessions from the Democrat Commissioners, but, at the same time, Commissioner Ferguson made clear the new HSR rules did not reflect the “rule [he] would have written if the decision were [his] alone.”
Although the Republican-led FTC may not fully withdraw the new rules, it might consider modifications to reduce the burden on filing parties if that burden proves to be substantial. Commissioner Holyoak stated that the FTC “should carefully scrutinize the effect of the Final Rule on our enforcement efforts and on the burden it imposes upon filing parties and the agencies’ staff…” and “modify the Final Rule, if necessary, in a principled and evidence-based fashion.” On the first day of his second term, President Trump instructed all executive departments and agencies to “consider postponing for 60 days… the effective date for any rules that have been published in the Federal Register, or any rules that have been issued in any manner but have not taken effect, for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.” Upon further consideration, the agencies may very well revisit efforts to speed up and reduce the burdens of merger reviews as desired in the first Trump administration.
Continued Scrutiny of Vertical Transactions: Scrutiny of vertical transactions is likely to continue under the Trump administration. The Trump DOJ’s challenge to the AT&T/Time Warner transaction in 2017 helped reinvigorate merger challenges focused on vertical merger theories of harm. DAMITT shows the antitrust agencies concluded 12 significant merger investigations involving a vertical aspect during Trump’s first term (11 percent of the total), compared to 13 significant investigations (17 percent of the total) under Biden. Notably, both Republican Commissioners, Andrew Ferguson (Trump’s newly designated FTC Chair) and Melissa Holyoak, voted to block Tempur Sealy’s acquisition of Mattress Firm under purely vertical theories of harm. Commissioner Holyoak acknowledged in a concurring statement that vertical mergers often benefit consumers through increased efficiencies that may lessen the risk of competitive harms. But she observed substantial evidence in the companies’ ordinary course documents that in her view suggested the effect of the merger may be substantially to lessen competition. Aside from continued scrutiny of vertical, the Trump administration is likely to return to more well-accepted theories of harm rather than pursuing novel theories.
Uncertain Times for EU Merger Enforcement: Record-Low Number of Significant Investigations, Lengthier Reviews and Looming Risk of Deals Being Called-in
Number of Significant EU Merger Investigations Plumets, Together With Intervention Rate
The EU Commission ended 2024 having concluded only 10 significant EU merger investigations, a new record-low since DAMITT started tracking the data in 2011. This small number of significant investigations confirms the downward trend observed over the past few years. Over the last five years, the EU Commission concluded on average 15 significant investigations, nearly 40 percent less than during the previous five-year period.
As explained in our DAMITT Q3 2024 Report, while this decrease may be partially attributed to the lower number of filings observed in 2023, this cannot be the only explanation. Even less so since the number of filings has picked up in 2024 to reach 401, the third-highest figure since 2011. The number of significant EU merger investigations concluded each quarter shows, however, that enforcement did not pick up.
The ten significant investigations concluded in 2024 bring the EU Commission’s intervention rate to an all-time low of two percent, far below the nearly six percent average observed since 2011. This may hint at alternative ways to “fix” possible competition concerns without formal commitments. Dechert is aware of multiple cases that have achieved unconditional clearances, but with separate bilateral agreements with complainants or third parties that may have helped assuage the EU Commission’s concerns even though the agreements were not formally part of the EU process.
EU Merger Control Still Bites in Terms of the Proportion of Blocked or Abandoned Transactions
Despite the record-low number of significant investigations and intervention rate, the proportion of significant investigations resulting in a blocked or abandoned transaction trended upward to reach 20 percent.
This would increase to 27 percent if one were to count EEX/Nasdaq Power as a significant investigation. As noted in the DAMITT Q3 2024 Report, this case was unusual. While it does not meet the definition of significant investigation because it was not cleared in Phase I with remedies and did not get to Phase II, the deal was abandoned on the day a Phase II would have been officially opened, making it akin to a Phase II withdrawal.
Looking more closely at the 2024 Phase II cases, the EU Commission did not conclude any Phase II investigations in Q4, marking the second quarter in 2024 without any Phase II decisions. This is the first time since DAMITT started tracking that two quarters with no Phase II investigation were recorded in the same year. Overall, the EU Commission only concluded five Phase II investigations in 2024 – three conditional clearances and two withdrawals – tying the record-low of 2017.
Turning to Phase I cases with remedies, the EU Commission concluded two Phase I remedy cases in Q4 2024. While this is above the quarterly average observed over the past two years, it is still significantly below the levels observed previously. In 2024, cases concluded in Phase I with remedies accounted for only 1.3 percent of all cases concluded in Phase I. By comparison, Phase I remedy cases represented 2.5 percent of all Phase I cases over the 2019-2023 period, and 4.6 percent over the 2014-2018 period.
Article 22 – The Answer to Everything?
Since the EU Commission published its new guidance on the application of Article 22 of the EU Merger Regulation in March 2021, DAMITT has been watching – and waiting for – any impact on the number of significant EU merger investigations. Three years later, only three cases have been reviewed on this basis, leading to one prohibition (which was eventually overturned) and two abandonments in Phase I. The new approach to Article 22 of the EU Merger Regulation therefore resulted in only one additional significant investigation. Not much, although not completely insignificant among the ever-thinning total number of EU significant investigations.
The European Court of Justice (ECJ) definitively closed this chapter in Illumina v. Commission at the end of Q3 2024, when it ruled against the possibility for the EU Commission to use Article 22 of the EU Merger Regulation to review deals not meeting jurisdictional thresholds in any Member State. In the aftermath of the ruling, the EU Commission heralded a new solution: using Article 22 of the EU Merger Regulation in combination with the possibility enjoyed by certain Member States to call-in deals not meeting their (turnover or market share) thresholds for review. for more information, see Dechert’s OnPoint).
It did not take long for one Member State to heed the call of the EU Commission: following the Illumina v. Commission ruling, Italy almost immediately used its call-in power to refer Nvidia’s proposed acquisition of Run:ai to the EU Commission. The EU Commission accepted the referral in October 2024, setting its ground in bold letters in the accompanying press release: “the Commission considers that the transaction meets the criteria for referral under Article 22 of the EUMR.”
While the deal was ultimately approved unconditionally by the EU Commission in December 2024 after a simple Phase I review, Nvidia has filed an appeal against the decision, challenging the EU Commission’s initial move to accept the referral from Italy. Time will tell whether the EU Commission has finally found a way to use Article 22 of the EU Merger Regulation with the blessing of the EU Courts, or whether it will need to go back to the drawing board once again.
In the meantime, Member States are not waiting, and many are gearing up to ensure they can review deals not meeting their national thresholds. At the time of this report, 10 Member States provide for some kind of call-in power: either unlimited, as long as there is a reasonable suspicion of effect on competition, or limited, requiring at least one party to meet certain turnover or market share thresholds. Six others are considering following suit. For this report, we view a Member State as considering a possible call-in power when either (i) a consultation on the topic was launched or (ii) the chair or a senior official of an authority has publicly expressed support for seeking such power.
The magnitude of any impact this development could have on the number of significant EU merger investigations is difficult to estimate, but one thing is sure: this change will add uncertainty to deal prepping and timetables.
In addition, we note that competition authorities have other tools at their disposal to look into below-threshold mergers: in Towercast, the ECJ affirmed that national competition authorities can also address mergers under Article 102 TFEU (abuses of dominance), to make sure potentially problematic deals are reviewed irrespective of the parties’ turnover. Belgium has been the first national competition authority to do so, followed by France. The Belgium and French competition authorities also recently opened proceedings into proposed acquisitions under Article 101 TFEU (prohibition of anticompetitive agreements).
Average Duration of Phase II Investigations Skyrockets, While Duration of Phase I Remedy Cases Remains Lengthy
With no Phase II investigation concluded in Q4, the average duration of Phase II investigations remained at 22.5 months for 2024, the highest annual average ever recorded by DAMITT. As noted in previous DAMITT reports, this average warrants caution as it is driven up by the Korean Air/Asiana Airlines investigation concluded in Q1 2024, which lasted an unprecedented 39.5 months. Even leaving this deal aside, though, the duration of Phase II investigations concluded in 2024 averaged 18.2 months, still on the high end.
Breaking this duration down between pre-filing discussions and formal review, pre-filing periods averaged a record high of 12.7 months. Excluding Korean Air/Asiana Airlines, the average duration of pre-notification decreases to 9.4 months, in line with 2023, with formal review accounting for just shy of half of the total investigation period.
The EU Commission used its statutory powers extensively to extend the review period in 2024. On the one hand by stopping the clock in 80 percent of the cases – adding an average of 65 working days to the investigation. On the other by agreeing to “voluntary” extensions with the merging parties in all cases.
Looking at duration spread, all Phase II cases concluded in 2024 lasted more than a year from announcement to decision, with half of the investigations taking more than 18 months. As noted in the DAMITT 2023 Annual Report, the existence of relatively shorter Phase II investigations (i.e., less than 14 months) may be explained by the shift away from agreeing to remedies in Phase I in favor of Phase II investigations.
The duration of Phase I remedy investigations averaged 11.2 months in 2024. While this is a significant decrease compared to the record-high average duration recorded in 2023 of 13.1 months, it is still 20 percent longer than the 2019-2024 average duration.
The duration spread for Phase I remedy cases does little to assuage concerns: all but one case lasted more than eight months from announcement to clearance.
These lengthy Phase I reviews are also driven by the length of pre-filing discussions, since the formal review period is set by the EU Merger Regulation at a maximum of 35 working days in Phase I. In 2024, pre-filing discussions lasted on average 9.5 months, slightly longer than for Phase II investigations (if excluding the Korean Air/Asiana Airlines investigation).
Of note, only one Phase I remedy case was pulled-and-refiled in 2024, raising the question of whether the high proportion of pull-and-refiles observed in 2023 was the start of a new trend, or just a temporary oddity.
While these durations may look frightening, merging parties should keep in mind that only a minority of cases are subject to significant merger investigations. Indeed, nearly 90 percent of cases concluded in 2024 were handled under the simplified or super simplified procedure. The simplified procedure has been a constant feature of EU merger control since 2013, and a very successful one. Cases reviewed under the simplified procedure in 2024 lasted 16.8 working days on average from notification to decision.
The EU Commission partially revised the merger review process in 2023 to better focus its resources on cases raising concerns and reduce the administrative burden of reviewing the ones that do not. To this end, it adopted the Merger Simplification Package in April 2023, allowing for more deals to be reviewed under the simplified procedure and introducing a new “super simplified” procedure. Under the super simplified procedure, parties can submit a filing without pre-notification talks using an updated ‘tick the box’ form which streamlines questions relating to the substantive assessment of the merger. This trend sharply contrasts with the United States, where notifications for all filers may become far more complex over the next year.
In total, 100 cases were notified in 2024 under the new super simplified procedure. While the average duration of the formal review of these deals is broadly on par with deals notified under the simplified procedure, albeit slightly longer, i.e., 17.2 working days, the absence of pre-filing discussion allows for a significantly faster process overall.
Stricter Divestment Conditions may Further Delay Closing
Obtaining clearance is not always the end of the story – nor the end of the requirement to suspend closing. In “standard” cases with structural remedies, merging parties can close their transaction and then have a specified period (typically around six months) – known as the “first divestiture period” – in which to complete the divestiture to an approved buyer. However, the EU Commission may decide to require a pre-approved divestiture buyer. Such scenario in the EU can either be a “fix-it-first” remedy, which is the equivalent of the “upfront buyer” remedy in the U.S, i.e., requiring the merging companies to obtain approval for a divestiture buyer within the timetable for review of the original notification before the EU Commission will clear the merger. Or it can be an “upfront buyer” EU remedy, according to which the EU Commission will grant conditional clearance at the end of the investigation for a merger without identifying a divestiture buyer – but the companies cannot close the deal until a buyer has been presented to the Commission and approved.
The EU Commission is increasingly requiring such conditions. Based on publicly available information (published decisions or press releases including this information), in 2024, 59 percent of cases with structural remedies included either a fix-it first or upfront buyer requirement.
Looking only at Phase II cases, the proportion of structural remedies including such conditions rose from 58 percent over the 2011-2018 period to 80 percent over the 2019-2024 – a 22-percentage point increase.
While the increase for Phase I remedy cases is less significant, the proportion of conditional structural remedies still increased from 29 percent over the 2011-2018 period to 47 percent in 2019-2024.
Beyond adding a level of complexity for the merging parties, these requirements also further delay closing. Looking at Phase I cases that included an upfront buyer requirement over the 2019-2024 period, the purchaser was approved on average 5.6 months after clearance. In Phase II cases, the purchaser was approved on average eight months after clearance.
2025 – A New (Rib)Era
The trends highlighted above are likely to continue in 2025, but key changes in the EU landscape could make 2025 a year to watch for merger enforcement.
The new EU Commission took office in December 2024, with a new Executive Vice President (EVP), Teresa Ribera, taking over competition enforcement. The EVP mission letter highlighted the need to modernize competition policy, including giving “adequate weight to the European economy’s more acute needs in respect of resilience, efficiency and innovation, the time horizons and investment intensity of competition in certain strategic sectors, and the changed defense and security environment.” The mission letter also noted that “Competition policy should also reflect the growing importance of resilience in the face of geopolitical and other threats to supply chains and of unfair competition through subsidies.”
How these objectives will be implemented in practice will be revealed over time, but the growing focus on EU resilience could change the approach to merger control. Beyond the merging parties, decisions in merger control can have an impact on additional constituents: the potential remedy takers. And looking at past decisions, approved purchasers tend to be EU companies in a (narrow) majority of cases. In 2024, 67 percent of approved purchasers were EU companies, with an added 17 percent of remedy packages including both EU and foreign companies. By comparison, over the 2019-2023 period, 47 percent of approved purchasers were EU companies, with an additional 22 percent of remedy packages including both EU and foreign companies. Nationality of purchaser is of course not a formal criterion for approval, and there are many factors that come into play in the approval decision, especially in specific industry sectors. But the Commission may tend to consider that EU buyers are more likely to expand competition in the Member States as compared to foreign buyers.
Therefore, while the data do not show a clear preference for EU purchasers so far, it will be interesting to monitor whether the 2024 increase in EU purchasers is the start of a new trend and whether this trend changes depending on whether the case receives Phase I or Phase II clearance.
More broadly, the changing landscape of EU merger control warrants close monitoring. 2025 will be the first test of whether Article 22 of the EU Merger Regulation, version 2.0, will enable the EU Commission to review more “significant” cases. This of course assume that it is not struck down by the ECJ. Similarly, 2025 may provide answers as to whether any of the deals “notified” to the EU Commission under the DMA will generate a merger investigation. And finally, it may also start to provide more insights into the underlying explanations for the increasingly low number of significant EU merger investigations – so stay tuned!
Conclusion
Parties to transactions subject to significant merger investigations may continue to face an elevated risk of seeing their deal blocked or abandoned on both sides of the Atlantic, even if the intervention rates remain low. To ensure the ability to defend deals through a potential investigation, parties to the average “significant” deal in the United States should plan on at least 12 months for the agencies to investigate their transaction and may want to add additional time to address the continuing changes at the agencies. Companies should also plan for another seven to ten months if they want to preserve their right to litigate an adverse agency decision.
On the EU side, parties to transactions likely to proceed to Phase II should allow for at least 18 months from announcement to clearance and should not rely on the formal deadlines provided for in the EU Merger Regulation, even after a deal has been formally notified. Parties should be aware that the EU Commission is becoming less and less likely to accept remedies without an in-depth investigation. If parties still plan on obtaining a Phase I clearance with commitments, they should factor in about 11 months from announcement to a decision, with significant time set aside for pre-notification talks with the EU Commission and the potential need to pull and refile their notification.
