Telling your client that their merger control filing was cleared is one of the most pleasant jobs in the life of an antitrust lawyer. Everyone involved puts in a lot of effort to provide the regulators with the necessary information to take an informed decision and usually, these decisions are final. However, in some cases, clearances and prohibitions are challenged in court by the merging parties or third parties which do not like the outcome. These cases are rare (at least compared to the number of merger control filings submitted every year), which makes them even more interesting.
Judicial review: Limited but real
When looking at contested merger control decisions at EU level, it should be borne in mind that the European Commission has a certain degree of discretion, and the courts therefore limited powers of review. To briefly summarise, judicial review in front of the EU courts focuses on whether:
- procedural and reasoning requirements were met,
- the facts were correctly established,
- and that there was no manifest error or misuse of discretion.
Illumina/Grail – A landmark on jurisdiction
One of the most famous cases – at least among antitrust nerds – is likely the prohibition of Illumina´s acquisition of Grail. As it is widely known, here are only the key facts (read more about this nail-biter here and here): The acquisition did not meet the relevant merger control thresholds in the EU or any of its Member States. The Commission only got a grip on the case because national regulators – which themselves had no jurisdiction to review the transaction – referred the case to the Commission (under Art. 22 EUMR). Illumina fought the Commission all the way to the European Court of Justice (ECJ) and ultimately won. The ECJ found that the Commission did not have jurisdiction to review the transaction.
UPS/TNT – Procedural rights matter
Another case where a court ruled against the Commission was decided in 2017 by the EU’s General Court (GC) (and later confirmed by the ECJ). The Commission had conducted an in-depth investigation into the proposed acquisition of TNT Express by UPS and ultimately blocked the transaction. It found that the takeover would restrict competition in 15 Member States regarding the express delivery of small packages across boarders by reducing the number of significant players. Despite proposed remedies, the Commission´s concerns remained unresolved. The decision relied largely on economic analysis, from which the Commission concluded that there was a risk of price increases in most of the affected markets.
In its ruling, the GC argued that the econometric model ultimately used for the economic analysis by the Commission differed significantly from the one shared with UPS during the administrative procedure, without giving UPS the opportunity to comment on the changes. The court therefore annulled the Commission´s decision, stating that it had violated UPS´ rights of defence.
But that was still not the end of the story. UPS ultimately abandoned the deal (TNT was acquired by FedEx in 2016) and pursued a damage claim of EUR 1.7 billion. The GC dismissed the claim, finding that UPS had failed to sufficiently prove that the Commission´s errors caused the alleged damages.
Third party involvement – A difficult endeavour
Besides the filing parties, third parties can also challenge merger control decisions. However, under EU law, they must demonstrate that the decision is of direct and individual concern to them.
In 2019, after an in-depth investigation, the Commission cleared the acquisition of Liberty Global´s cable business assets by Vodafone, subject to behavioural commitments. This decision was disputed by not only one or two, but three companies (Deutsche Telekom, NetCologne and Tele Columbus).
The claimants expressed concerns over Vodafone´s dominant position, particularly in the markets for the retail supply of TV signal transmission services in Germany. They argued that the Commission made manifest errors in assessing the transaction´s competitive effects.
However, the GC did not follow that argumentation and dismissed all actions as being unfounded, thereby upholding the contested decision. The court did not find any manifest errors and agreed with the Commission´s conclusion that the parties were neither either actual nor potential competitors in the markets for the retail supply of TV signal transmission service to customers living in multi-dwelling units or in single-dwelling units in Germany.
The court also confirmed that only mergers significantly impeding competition are incompatible with the internal market. A dominant position alone is insufficient to render a concentration unlawful. Accordingly, although Vodafone held a dominant position, the Commission could legitimately conclude that there was no significant impediment to effective competition as a direct and immediate effect of the concentration.
Anything in the pipeline?
Of course I would not have picked the topic for this blog if there wasn´t another interesting case on the horizon: In July 2025, the Cloud Infrastructure Services Providers in Europe (CISPE) brought an action before the GC, seeking to annul the Commission´s conditional clearance of Broadcom´s acquisition of VMware, a supplier for virtualization software. The GC just recently published details of CISPE´s claim. CISPE argues that the Commission made legal and assessment errors by failing to properly assess:
- the creation or strengthening of a dominant position or competition risks in the market for server virtualization software,
- the risks of bundling between VMware´s software with Broadcom´s hard- or software, and
- the impact of the transaction on innovation in the market for server virtualization software.
CISPE is no stranger to Brussels, having previously filed a complaint against Microsoft (which was later settled). It remains to be seen if this third-party claim will be more successful than others.
Closing remarks
Although merger control decisions are not often contested, if they are, they often involve transactions which were already subject to in-depth investigations by the Commission. While merging parties would only contest a prohibition, third parties can also fight clearing decisions. If possible, parties to the transaction should also focus their claim on the violation of procedural rights, as these have proven to be a successful tool to contest a prohibition decision. However, third parties should keep in mind that they must show to be directly and individually concerned by the decision. The cases above highlight both the scope and limits of the Commission’s discretion. Both merging parties and third parties should bear this in mind to avoid wasting resources on contesting aspects of decisions that fall within the Commission’s discretion.
Photo by Jonny Gios on Unsplash
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