On August 17, 2023, the European Commission (EC) decided to review Qualcomm’s acquisition of the Israeli-based semiconductor company Autotalks, even though the deal was not reportable at EU or Member State level. Just one day later, on August 18, 2023, the EC also accepted jurisdiction over another non-reportable deal – European Energy Exchange’s (EEX) acquisition of Nasdaq’s European power trading and clearing business (Nasdaq Power).
Background
The EC’s back-to-back decisions mark only the second and third concrete applications of its policy reversal, announced in March 2021, to encourage national competition authorities (NCAs) of EU Member States to refer to the EC potentially problematic transactions that do not meet EU or national merger control thresholds. The EC’s new policy allows an NCA to refer a transaction to the EC under Article 22 of the EU Merger Regulation (EUMR) at any time, including after closing.
Since the reversal of the EC’s interpretation of Article 22 and the referral of Illumina’s $8 billion acquisition of Grail in spring 2021 (which was subsequently prohibited), the EC is reported to have seriously considered several dozens of deals that did not meet EU or national merger control thresholds for review under Article 22 referral but no referrals had been made for more than two years.[1] Qualcomm/Autotalks was thus only the second time the EC asserts jurisdiction for a transaction that did not meet any thresholds under its new policy. EEX/Nasdaq Power quickly joined the list as the third. The decisions come while a challenge to the EC’s jurisdiction under Article 22 EUMR by Illumina and Grail remains pending before the European Court of Justice (C-611/22 P).
Qualcomm’s acquisition of Autotalks
Autotalks is a fabless semiconductor company specialized in chipsets that enable vehicles-to-everything (‘V2X’) communications, allowing vehicles to communicate directly with each other and with their surrounding environment. Founded in 2008, Autotalks is a privately held company with c. 120 employees (according to LinkedIn) and offices in North America, Germany, France, China, Japan, and Korea.
The deal is reportedly valued at $350-400M, according to the French competition authority. Autotalks’ worldwide or EEA revenue figures have not been made public.
The referral was initiated by Belgium, France, Italy, the Netherlands, Poland, Spain, and Sweden, and joined by Czechia, Denmark, Finland, Ireland, Luxembourg, Portugal, Romania, and Slovakia. The German competition authority (the Bundeskartellamt) has not joined the referral, consistent with its position that under German national law it cannot refer non-reportable transactions to the EC.
Limited details are available about the factors that, in the circumstances of this case, led 15 national competition authorities to refer – and the EC to accept to review – the Qualcomm/Autotalks deal. But the statements issued by the EC and the Dutch and French competition authorities suggest that the agencies’ main concerns relate to:
- Very significant horizontal overlaps strengthening dominance, with the EC describing the parties as “the main suppliers of V2X semiconductors in the EEA” and the Dutch authority’s press release referring to Qualcomm post-transaction becoming “so dominant in this area”; and
- Autotalks having a unique capability in that it is the only supplier supporting both industry standards for microchips in driving-assistance systems, a fact that is raised by both French and Dutch authorities.
The French authority’s press release also mentions Qualcomm’s vertically and closely related activities as another potential area of concerns.
EEX’s acquisition of Nasdaq Power
Like Qualcomm/Autotalks, EEX’ acquisition of Nasdaq Power did not meet the EU or national merger control thresholds. It was referred to the EC by two EU Member States (Denmark and Finland) on their own initiative, with two other Nordic countries Sweden (EU Member State) and Norway (EFTA Member State) joining the referral request.[2]
EEX, a part of the Deutsche Börse Group, is the leading energy exchange in Europe. Nasdaq Power is Nasdaq Inc.’s European power trading and clearing business. According to its press release, the EC has preliminary concerns about the transaction being a merger to monopoly, describing the parties as the “only two providers of services facilitating the on-exchange trading and subsequent clearing of Nordic power contracts.” The EC also notes that Nordic power contracts are key for “more stable and predictable energy prices” in the “current context of the energy crisis.”
Regulatory timeline
The EC’s decision to accept the Qualcomm/Autotalks referral took place more than three months after the deal was made public. The EEX/Nasdaq Power referral was accepted approx. 2 months after the deal’s announcement. The main regulatory milestones of both deals are set out below:
| Date | Qualcomm/Autotalks | EEX/Nasdaq Power |
| May 2, 2023 | Qualcomm notified the Autotalks acquisition to the German Bundeskartellamt | |
| May 5, 2023 | The Bundeskartellamt disclosed the fact of notification on its public case register | |
| May 8, 2023 | Qualcomm announced the deal | |
| May 19, 2023 | Qualcomm withdrew the German filing, possibly because the Bundeskartellamt concluded that the transaction did not meet the German merger control thresholds | |
| June 20, 2023 | EEX announced the deal | |
| August 17, 2023 | EC accepted Article 22 referral in Case COMP/M.11212 | |
| August 18, 2023 | EC announces referral decision | EC accepted Article 22 referral in Case COMP/M.11241 |
| August 21, 2023 | EC announces referral decision |
The EC’s decision to accept referral prevents the purchaser from closing pending the EC’s clearance (as we understand closing has not yet taken place). For that purpose Qualcomm and EEX now have to submit a merger notification under the EU Merger Regulation. The EC’s decision to exercise jurisdiction may also be appealed before the EU General Court (GC).
What to watch for
Businesses need to continue to assess the risk of referral in respect of transactions that are not reportable in the EU. The referrals of Qualcomm/Autotalks and Nasdaq Power/EEX indicate that the EC is not deterred from reviewing non-reportable deals under its new policy while it is being challenged in court. In July 2022, the GC upheld the EC’s decision on jurisdiction in Illumina/Grail. The GC judgment has been appealed (see case C-611/22 P) and the European Court of Justice will have to confirm or reverse the EC’s approach.
Also, businesses-”gatekeepers” subject to the notification obligations under Article 14 of the Digital Markets Act (DMA) will have to inform the EC of all intended mergers and acquisitions involving “another provider of core platform services or of any other services provided in the digital sector” regardless of whether these transactions meet the EU merger control thresholds. The Article is designed to facilitate the possibility of Article 22 referrals enabling the EC to take jurisdiction over transactions of which they are informed pursuant to the DMA. The Article 14 reporting obligation will become applicable in early September 2023 when the EC will likely publicly designate certain large technology companies as “gatekeepers” under the DMA.
[1] See mLex, ‘Qualcomm’s Autotalks takeover is on radar of EU merger regulator for ‘Article 22’ referral’, July 6, 2023.
[2] Note that Sweden and Norway already enjoy wide flexibility under national merger control rules to assert jurisdiction over transactions that do not meet the applicable thresholds. In Sweden, the agency can order parties to notify transactions that do not meet the relevant thresholds (see Swedish Competition Act (2008:579) Chapter 4, article 7). In Norway, within 3 months after signing of final agreement, the competition agency may request notification of concentration below the jurisdictions thresholds, provided that there are reasonable grounds to assume that competition will be affected by the deal. The Norwegian competition agency can also require certain companies in concentrated sectors to notify all of their acquisitions. In 2019, the Norwegian Competition Authority imposed this obligation on companies in the fuel, energy, waste, consumer goods, locksmith, newspaper, and broadband sectors (see here for a list of companies subject to such disclosure requirements in Norway).