Antitrust law on merger issues for international transactions
Antitrust law is evolving rapidly, with jurisdictions adopting differing—sometimes conflicting—approaches and priorities. Ashurst Perkins Coie’s global antitrust team is pleased to launch this quarterly newsletter, considering key antitrust issues with implications across jurisdictions. This inaugural edition focuses on merger issues for international transactions.
A Shift to Less Aggressive Merger Enforcement?
Since taking office, the Trump administration’s approach to merger enforcement has markedly differed from the Biden administration’s open skepticism of remedies and emphasis on merger enforcement through litigation. The current administration, while it remains willing to litigate, has shown that parties can negotiate divestitures, behavioral remedies, and other solutions to secure clearance, as recently seen in
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HPE/Juniper Networks (divestiture and licensing)
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Omnicom/Interpublic Group (behavioral remedy)
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UnitedHealth Group/Amedisys (divestiture)
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Ascension/AMSURG (divestiture)
This receptiveness to settlement is a deliberate policy. In a May 2026 speech, Commissioner Meador confirmed that the FTC is willing to engage with parties on remedies, encouraging them to work with staff to develop and refine fixes. He criticized the prior administration’s “deliberate policy not to engage on remedies,” which he argued disadvantaged the agency and “led to worse outcomes for consumers” because parties unilaterally proposed remedies—without enforcer input—on the eve of litigation. Commissioner Meador framed the current approach as a correction of this “litigation-first posture,” which, in his view, discouraged early candor from parties and deprived the agency of the opportunity to evaluate and improve proposals. He urged parties to engage early and candidly.
While it is early days in Australia’s new merger regime, its very nature—mandatory and suspensory—suggests that merger enforcement will be more aggressive rather than less. The new notification requirements mean that more transactions should come to the ACCC’s attention than previously. That said, the new regime enables remedies to be factored into assessments of proposed transactions. The statutory time frame allows for commitments and undertakings in all phases of the review.
The ACCC’s first “Phase 2” review, Ampol’s acquisition of EG Australia, suggests a willingness to approve acquisitions that might otherwise substantially lessen competition if adequate remedies are offered. In that case, the ACCC’s approval was subject to Ampol divesting 41 retail fuel sites across Australia to an ACCC-approved purchaser. Ampol initially offered to divest 19 sites but increased its offer to 41 during Phase 2. The ACCC concluded that, without those divestitures, the acquisition could substantially lessen competition in retail supply of petrol or diesel in 39 local markets, where 41 EG Australia sites overlap with Ampol sites. This case illustrates that negotiated remedies may provide a real solution to competition concerns, perhaps echoing the FTC’s position under the current administration.
The EC’s previously aggressive assertion of jurisdiction over “below threshold” mergers has been more moderate under EVP Ribera. However, this likely reflects the EC’s defeat in Luxembourg in Illumina/GRAIL and the pending Run:ai appeal rather than a policy-driven change in enforcement. Illumina/GRAIL also appears to have influenced the draft revised merger guidelines, published in April 2026, with the inclusion of an “innovation shield” interpreted by stakeholders as a deliberate signal that the EC does not presume every acquisition of a nascent innovator to be a “killer acquisition.” The draft guidelines also address efficiencies early and on equal footing with theories of harm, while scale, innovation, investment, and resilience are recognized as potentially pro-competitive factors.
In the UK, the CMA has responded to the government’s pro-investment agenda by implementing the “4 Ps” (pace, predictability, proportionality, and process), signaling an intent to promote business trust and confidence and encourage investment and innovation. This reflects a meaningful shift to a less interventionist approach in global transactions where remedies agreed in other jurisdictions would likely address competition concerns in the UK.
Acquihires
European competition authorities continue to assess the jurisdictional issues raised by “acquihires,” i.e., transactions involving hiring of employees (rather than acquisition of a business or assets), often with (nonexclusive) IP licenses. Acquihires have become increasingly common in the AI context, where top-tier development talent is scarce. If they do not trip jurisdictional thresholds, acquihires escape merger review. Competition authorities are, however, concerned that such transactions reduce competition where buyers “buy” rather than “build” innovation.
In the EU, acquihires raise two merger reportability issues. First, is there a “concentration”? While hiring talent without also acquiring assets, IP, or creating structural links is generally not reviewable, hiring employees employed by an entity that also grants an IP license may be reviewable. For example, both the EC and the German FCO have taken the view that they can review a transfer of all assets necessary to move a target’s position in generative AI foundation models and chatbots to an acquirer. The CMA took a similar view.
Second, are the quantitative thresholds met? Acquihires escape review if the parties’ revenues fall below the thresholds. Even thresholds designed to capture nascent targets without significant revenues may not be met. Germany’s “transaction-value threshold,” for example, can capture transactions involving targets without revenue if they have “significant domestic activity” and the deal value exceeds €400 million. As a result, although some recent cases exceeded the deal value, the FCO had no jurisdiction because the target lacked significant German activity.
The EC’s draft merger guidelines address labor markets, framing labor as a purchasing market where mergers between employers (including acquihires) may strengthen monopsony/oligopsony power. However, they do not address the underlying jurisdictional issue.
European authorities may be able to conduct ex post reviews of acquihires that are outside merger control rules using Article 102, following Towercast.
Acquihires have not escaped the ACCC’s attention. It has stated that it is monitoring the use of acquihires by digital platforms and AI firms to acquire the services of people who fall within a limited pool of technical expertise. As a result of commentary that acquihires are being structured to circumvent scrutiny, the ACCC is also closely monitoring international developments.
To date, U.S. antitrust enforcers have not directly addressed acquihires, but that should not be mistaken for indifference. Both the FTC and DOJ have indicated they are watching these deals closely. For example, FTC Chair Ferguson stated that the agency is “beginning to examine these acquihires to make sure they are not an attempt to get around” the merger review process, and Commissioner Meador expressed concern beyond the procedural, characterizing the practice as a form of “buy and kill, but for ultra-skilled labor.” While no DOJ leader has publicly expressed concerns, public reports indicate that the DOJ has already investigated at least one such arrangement.
Serial Acquisitions
Australia has entered a new era of merger control, with mandatory notifications required if specified thresholds are met. The thresholds are intended to “strike the right balance between creating a rigorous and robust regime without having to call in every single merger … allow[ing] the ACCC to focus its efforts on the mergers that really matter.”
This does not mean that smaller acquisitions will avoid notifiability—or the significant repercussions of failing to notify if required. The new regime encompasses certain smaller acquisitions—those that are part of a set of “creeping” or “serial acquisitions.” If an acquisition involves assets or revenue of at least AUD 2 million, parties need to consider the cumulative Australian revenue generated by entities acquired by the acquirer in the past three years that predominantly involve substitutable goods or services.
This is a reform the ACCC has long called for. As it noted in a submission to the Treasury, “each individual acquisition may not trigger a merger notification and/or amount to a substantial lessening of competition, but a substantial lessening of competition may occur cumulatively as a result of the acquisitions over time.”
The threshold could, however, catch small acquisitions that do not “really matter” substantively, such that parties to a global transaction with only a limited nexus to Australia may not anticipate having to notify and inadvertently fall foul of it. Given this risk, companies will need to keep good records of previous transactions and consider whether each new acquisition that does not otherwise meet the thresholds might be considered part of a “creeping” acquisition.
Serial acquisitions—particularly those pursued by private equity—were a priority of the Biden administration’s antitrust enforcement, reflected in the 2023 Merger Guidelines, and a broad public inquiry aimed at identifying roll-up strategies. In 2023, the FTC filed an antitrust complaint in federal court against USAP, alleging an anticompetitive scheme to roll up anesthesia practices across Texas and drive up healthcare costs. In April 2026, the current FTC settled the case; however, the terms of the settlement remain confidential to facilitate ongoing negotiations over implementation. The Trump administration’s enforcers have not identified roll-up strategies as an enforcement priority and have criticized the prior administration’s hostility.
European authorities are also monitoring “roll-up” strategies. The EC can review interdependent (i.e., a transaction is de jure or de facto conditional on another) or successive (between the parties within a two-year period) transactions, but not “creeping” acquisitions of several players which are individually not notifiable. EC review of below-threshold transactions effectively turns on whether they can be referred. After Illumina/GRAIL, the ongoing appeal challenging the EC’s ability to review the acquisition of Run:ai will determine whether member states can “call in” transactions and refer them to Brussels.
EU member states may be better placed to review such transactions. The German FCO recently ordered Remondis to notify future mergers in the waste management sector in response to its systematic acquisition of smaller players. The FCO has this power if it has previously conducted a sector inquiry and “found objectively verifiable indications that future mergers involving the company in question could significantly impede effective competition.”
Beyond the merger regime, the EC can also examine serial acquisitions by a dominant player as a potential abuse of dominance, as confirmed in Towercast. However, such a review would be ex post.
In the UK, the CMA has intervened in several sectors that displayed signs of roll-up strategies. For example, it called in and only approved several mergers in the vet sector subject to divestments, noting concerns over market consolidation by a small number of corporate groups. The CMA is currently investigating similar concerns in the private dentistry and home care sectors.
