An end to below-threshold referrals under Article 22 EUMR (Illumina v Commission; Grail v Commission (Joined cases))

Article summary

Competition analysis: In a landmark decision that agreed with the prior opinion of Advocate General Emiliou, the Court of Justice dealt a fatal blow to the expanded application of Article 22 of the EU Merger Regulation (EUMR). The Court of Justice held that the mechanism did not permit Member States to refer proposed acquisitions that fall below the national jurisdictional thresholds to the European Commission (Commission) for review. In the short term, the decision deprives the Commission of a key tool in its ability to police potentially problematic transactions, including so-called ‘killer acquisitions’. For Illumina v Grail, this decision overturns the General Court’s judgment and annuls the Commission’s decision to prohibit its US$7.1bn acquisition. It is significant because it restores certainty as to when the Commission may scrutinise deals that are beyond the scope of the EUMR and Member State merger control thresholds. Written by Timothy McIver, partner at Debevoise & Plimpton LLP.