– Should you expect the unexpected?
Below-threshold mergers and call-in rights, evolving theories of harm, an ongoing review of the EU Merger Guidelines and new approaches to remedies – it is evident that significant merger control policy changes are underway, as competition authorities and policy makers alike are struggling to adapt the existing merger control framework to the current market realities. While no changes to either the Finnish Competition Act or the EU Merger Regulation (“EUMR”) are expected in 2026, the Finnish Competition and Consumer Authority (“FCCA”) has been vocal about the changes to merger control it would like to see. Against this backdrop, companies should be prepared for new developments within the current merger control framework.
In this article, lawyers Mirva Arvola and Emilia Rosenblad address the evolving merger control landscape in 2026 and consider how companies can best position themselves to address unforeseen issues arising in connection with merger control.
Notification requirements and jurisdiction
As the merger control legislation is not changing in the near future, the familiar turnover thresholds that trigger the obligation to notify a concentration to the FCCA or the European Commission will remain unchanged. However, due to several noteworthy policy shifts and EU Court judgments, an increasing number of concentrations may find themselves subject to review by competition authorities through alternative routes. Companies should be aware and prepared for competition authority intervention in below-threshold mergers at least in the following instances.
Below-threshold mergers and call-in rights
The FCCA has been vocal in recent years about its desire to obtain a right to call in below-threshold mergers for review (see our previous Alert on the topic here). The rationale behind the request is that such a right would enable the FCCA to review concentrations in concentrated local markets or sectors characterized by lower turnovers, where competition concerns may nevertheless be significant. It would also allow the FCCA to catch so-called killer acquisitions, where a strong company acquires new market entrants that often are strong innovators with insignificant turnovers.
However, a call-in right for the FCCA is not on the parliamentary agenda for the current parliamentary term and no legislative changes in this regard will be addressed in the immediate future. Nonetheless, call-in rights are becoming increasingly common across the EU, with several national competition authorities already having the ability to call in mergers that do not meet notification thresholds. Among these are countries like Denmark, Germany, Iceland, Italy, Latvia, Lithuania and Norway. The Swedish Government submitted a legislative proposal in February 2026 to broaden its existing call-in right further. The Commission has said that it encourages and follows national implementations of the call-in powers with interest.
Companies operating in several Member States should thus recognise the possibility that a non-notifiable concentration could be reviewed in one of the jurisdictions with established call-in powers. Such jurisdictions should be mapped out and evaluated while planning the merger.
Furthermore, even without formal call-in powers, the FCCA can review mergers under other provisions of competition law – specifically, as potential abuse of dominance or as illegal cooperation between undertakings. Unlike a merger control review, such investigations typically take place after closing and are not subject to any strict procedural deadlines. The FCCA has said that it has opened at least two antitrust investigations into non-notifiable mergers: one in the healthcare sector and one in the chemical industry.
While this type of antitrust review should remain exceptional, dominant companies are well advised to consider the competitive effects of a planned concentration before committing to a transaction. This is particularly relevant in already concentrated markets or highly innovative sectors. Where appropriate, it may be possible to engage with the FCCA before closing to obtain their non-binding view on the transaction. Given that the FCCA is unlikely to obtain formal call-in powers in the near term, it is possible that more mergers will be scrutinised under other competition rules.
Expanded view of what constitutes a concentration; What is acqui-hiring?
Labour markets have come under increased scrutiny by competition authorities in recent years, with issues such as no-poach agreements attracting antitrust attention. This trend has extended to merger control, where various aggressive hiring tactics – such as hiring the entire staff or a substantial portion of the workforce of a competitor – have been considered to potentially constitute concentrations under merger control rules.
The most prominent example of this type of concentration is Microsoft’s 2024 arrangement with Inflection AI, which included, among other things, Microsoft hiring much of Inflection AI’s team. Several Member States referred this deal to the Commission for it to be evaluated under the EUMR. The Commission initially considered that the deal should be evaluated as a concentration, given the structural change it caused on the market, but concluded that it lacked jurisdiction to review the deal as it did not reach any merger control thresholds in any of the referring Member States. The German Federal Cartel Office subsequently examined the arrangement under German merger control rules, and determined that while the deal constituted a concentration, it did not meet the German merger control thresholds and the proceedings were discontinued.
This case illustrates that merger control rules can capture arrangements beyond traditional share acquisitions or asset deals. It has long been established that the acquisition of key intellectual property rights upon which a business is built can constitute a concentration. The critical factor in these scenarios is whether the arrangement brings about a structural change in the market, such as the company from which employees are hired exiting the market, turning to other business activities, or dissolving entirely. These types of scenarios are especially prominent in innovative sectors, where the know-how the company’s business is built upon can rest with its employees. It is essential to note that also these types of untraditional concentrations are only notifiable if the relevant turnover or other thresholds are met or call-in rights used.
Assessing mergers: Evolving theories of harm
Non-price effects
Traditionally, competition authorities have been primarily focused on the effects a merger has on prices, and representatives of the Commission have confirmed that price effects should remain a priority in merger review. However, as competition authorities have become increasingly attuned to competition law issues arising in digital markets and other highly innovative sectors such as pharmaceuticals, discussions around non-price-based concerns in merger assessment have intensified.
Other types of possible concerns, such as negative effects on innovation, pooling of data, and data collection practices are now being increasingly examined. For example, in connection with the recently abandoned acquisition of Warner Bros by Netflix, a European MEP urged the Commission to carefully examine non-pricing competitive effects of the transaction, including its impact on data collection, European cultural diversity, and production ecosystems. Similarly, in a recent Commission’s approval of Universal Music Group’s (“UMG”) acquisition of Downtown Music Holdings in February 2026, UMG’s access to commercially sensitive data of its rival record labels, which was stored on Downtown’s royalty accounting platform Curve, and its harmful impact on competition was at the heart of the Commission’s concerns. Full divestiture of Downtown’s Curve, including customer data, personnel, and source code, was required for the Commission to be able to conclude that the transaction would no longer raise competition concerns.
While competition authorities should not address non-competition issues, non-price effects can have a significant negative impact on competition and consumer welfare. Privacy considerations have also been featured in competition assessments, reflecting a broader understanding of how other values than pricing can play a role in effective competition.
Increasing Interest in Non-Horizontal Mergers
Whereas competition concerns traditionally are mostly identified in connection with horizontal mergers, competition authorities are increasingly interested in non-horizontal mergers that previously might have been considered unproblematic. The clearest example of this is the Commission’s 2023 prohibition of Booking Holdings’ acquisition of eTraveli Group, based on a novel ecosystem theory of harm. Although eTraveli is primarily a flight online travel agency, the Commission found that acquiring it would give Booking a major customer-acquisition channel to drive traffic and cross-sell hotel services, reinforcing network effects and entrenching Booking’s dominance on the market for hotel online travel agencies. According to the Commission, Booking’s hotel online travel agency ecosystem would be strengthened through an additional customer acquisition channel, making it harder for rivals to compete across the travel services market.
Booking has appealed the prohibition to the EU’s General Court, arguing that the Commission unlawfully departed from its Non-Horizontal Merger Guidelines without proper justification and that the Commission failed to assess the actual effects on the market. The outcome of this appeal will be closely watched, as it may influence the development of merger assessment framework.
A changing framework: Updates to the EU Merger Guidelines
The EU Merger Guidelines have provided the framework for assessing the impact of mergers on competition for approximately 20 years. A review is currently underway with the aim of updating the assessment framework to reflect new market realities and changes brought about by, e.g., digitalisation, globalisation and decarbonisation. The updated guidelines are also expected to reflect the perceived lack of competitiveness the EU faces. The Commission’s approach to media plurality in its competition assessments will also be expanded, a theme that has recently become central to certain merger control reviews by national competition enforcers.
Initial drafts of the updated guidelines are expected to be published later this year. The Commission has indicated that the guidelines will reflect the decisional practice of the Commission and the case law of the EU Courts. Competitive issues arising from innovative business models, artificial intelligence, and digital ecosystems are expected to be addressed.
Moreover, the 2024 report The Future of European Competitiveness, authored by former European Central Bank President Mario Draghi, which introduced recommendations on how to boost European economic competitiveness, recognises that whilst EU competition law principles remain valid, they need to be adapted to the radically changing world, particularly to ensure that European companies can compete against US and Chinese companies in the world economy.
To address this from a merger control perspective, Draghi speaks for introducing a clear “innovation defence”, which would allow merging parties to prove that the planned merger increases the ability and incentive to innovate. This could entail that the merging parties commit to certain investments for innovation post-merger. It is not unlikely that the updated Merger Guidelines will introduce a type of clear innovation defence for merger control. The FCCA has said that it supports, among other things, for the updated Guidelines to include a clearer framework for efficiency defences.
Remedies: The end of structural remedies as default?
Across Europe, competition authorities’ traditional approach to resolve competition concerns in mergers has been with structural remedies, e.g. divestments of businesses. In Finland, the FCCA has outlined that it does not, in principle, accept behavioural remedies in mergers between competitors, as behavioural remedies do not sufficiently clearly and effectively remove competition problems arising from the parties’ overlapping businesses. Behavioural remedies, i.e. modifying a company’s conduct rather than its structure (e.g. price commitments, access obligations), have been viewed with scepticism, as such remedies may be seen as difficult to monitor and as less effective at preserving the competitive status quo.
However, authorities and governments alike across Europe have started to ponder whether the traditional toolkit is fit for purpose in an era where complex, often innovation-heavy markets demand a more nuanced approach. A cautious openness to behavioural remedies can be seen in recent cases at the EU, with the FCCA presumably tracking the EU level developments.
An example is the UK Competition and Markets Authority’s (“CMA”) clearance of Vodafone’s joint venture with Three in December 2024, a “4-to-3” transaction in the telecoms sector that was resolved with behavioural remedies. The CMA accepted a novel investment remedy, where Vodafone and Three committed to invest £11 billion into deploying a combined 5G network throughout the UK. The remedy package satisfied the CMA’s competition concerns relating to, inter alia, the reduction in the number of mobile network operators, the risk of higher prices and reduced service quality as well as the potential weakening of competitive conditions.
The decision also received criticism, in particular relating to the bureaucratic burden required to monitor the remedies, as well as the remedies failing to address the “structural drivers of an unfair market”. Nonetheless, a year later in October 2025, the CMA published its draft revised guidance on merger remedies, in which the CMA takes a more positive approach towards behavioural remedies. It is not unlikely that this attitude shift could echo beyond the UK’s borders, allowing companies to bring innovative suggestions into remedy discussions with, e.g., the FCCA.
What’s next?
We will continue to monitor developments in Finland and the EU. If you have any questions about the developments discussed in this Alert, or about merger control and competition law matters in general, please do not hesitate to get in touch with us.
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