Pre-Merger Notification: States in the U.S. v. EU Member States

Pre-Merger Notification: States in the U.S. vs. EU Member States, Key Differences and Requirements

Both the United States and the European Union require mandatory pre-merger notification for significant transactions, but their frameworks, criteria, and the role of subnational jurisdictions (states or member states) differ in several important ways.


United States

States are increasingly introducing broad pre-merger notification rules in addition to the federal Hart-Scott-Rodino (HSR) Act. Many state regimes mirror or modestly expand upon federal triggers and requirements:


Key Features

  • Notification Triggers:
  • Mergers reportable under the federal HSR Act are typically triggered by “size-of-transaction” and “size-of-person” tests, with thresholds adjusted annually.
  • Recent state laws often use the same or similar triggers, and may include other local nexus criteria.
  • Scope:
  • Historically focused on healthcare, state notification regimes are expanding to cover all HSR-reportable transactions and, in some cases, transactions with a strong connection to the state.
  • Fees & Timing:
  • Filing fees are mandatory under the federal regime and typically scale with the size of the deal. The standard federal review period is 30 days and may be extended.
  • At the state level, some states (such as Washington and Colorado) require notifications for deals with a significant local nexus, but do not charge a fee or impose a waiting period for their review.
  • State Variation:
  • States like Washington and Colorado require notification if:
  • A party has its principal place of business in the state.
  • A party has substantial annual sales in the state, or
  • The transaction involves certain local industries (e.g., healthcare providers).
  • These notifications are generally non-suspensory: filing does not bar deal closing and no regulatory approval or waiting period applies at the state level.


European Union

At the EU level, the Merger Regulation (EUMR) offers a “one-stop-shop” for large, cross-border transactions. Below that threshold, each member state applies its own rules:


Key Features

  • EU Dimension (“One-Stop-Shop”):
  • Applies to mergers where:
  • Combined global turnover >€5B, and
  • Combined EU turnover >€250M for at least two parties, or
  • Significant multi-jurisdictional turnover thresholds are met.
  • Only the European Commission reviews such deals; no parallel filings at the national level are needed.
  • Member State Regimes:
  • All member states (except Luxembourg) have their own merger control rules for deals below the EU threshold.
  • Jurisdictional thresholds are based on domestic turnover, sometimes with market share or transaction value criteria.
  • Example:
  • France: >€150M global and >€50M in France for each of two parties.
  • Germany: >€500M global plus specific German thresholds.
  • Italy: >€582M global and >€35M Italian turnover.
  • Notification Impact:
  • Suspensory: Deals cannot close until cleared by the relevant competition authority.
  • Review assesses if the transaction would create/strengthen a dominant position or significantly impede competition.
  • Filing Fees:
  • Most EU countries now charge a filing fee for merger notifications at the national level.
  • Notable exceptions (as of 2025): France, Italy, Finland, and Sweden.
  • Referrals and Call-In Powers:
  • National authorities can refer cases to the European Commission for review, and some states are increasing powers to review even deals that fall below formal thresholds.


Recent Developments

  • EU Member States:
  • Increasing use of “call-in” powers to examine mergers falling below standard notification thresholds (notably in France, Italy, and Germany).
  • Rising prevalence of member state filing fees.
  • United States:
  • States leveraging independent notification rules for earlier and parallel enforcement actions, especially in sectors of local policy interest.
  • State filing regimes may be non-suspensory and fee-free, reducing friction for deal closing, but increasing compliance considerations.


Conclusion

Both the U.S. and EU systems are evolving toward greater scrutiny at the state/member state level. In the EU, large deals benefit from a coordinated, central review, while local deals can face diverse national requirements that are always suspensory and now often subject to significant filing fees. In the U.S., federal rules remain paramount, but state-level notifications are proliferating—some are non-suspensory and fee-free, but compliance obligations are rising, particularly for transactions with local nexus.