Jurisdiction(s):
United Kingdom

Illumina/Grail: ECJ narrows Article 22 referrals; national below-threshold regimes and competition-law tools keep EU merger scrutiny risks

Published on: 12 September 2024

Published by a Law360 reporter

Legal News

Article summary

Following the judgment, the Commission’s ability to examine mergers and acquisitions beneath the EU Merger Regulation (EUMR) turnover-based jurisdictional thresholds was curtailed in such matters. Where the parties do hit the thresholds, the transaction must be notified to the Commission for approval, and clearance secured before completion of the transaction. The EUMR also includes a route by which Member States can ask the Commission to assess a deal even if the parties do not meet the thresholds. This is the referral mechanism in Article 22. Once a request is accepted, the Commission, rather than the relevant Member State or States concerned, carries out the review. In 2021, the Commission issued guidance on how it would deploy the referral mechanism. That guidance explained that, in suitable cases, the Commission would ‘encourage and accept referrals…where the referring Member State does not have initial jurisdiction [under its merger control law] over the case (but where the criteria of Article 22 are met).’ This represented a departure from the Commission’s earlier practice of discouraging referral requests from Member States lacking jurisdiction under their own laws...

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