The EU General Court Confirms the Change in Article 22 EUMR Referral Policy

On July 13, 2022, the General Court of the European Union confirmed the European Commission’s jurisdiction to review the Illumina/Grail transaction following a referral pursuant to Article 22 EUMR. The judgment is an important endorsement of the EC’s recent change in its Article 22 referral policy, and may embolden the EC to call in for review of certain transactions where it may have concerns (in particular suspected so-called “killer acquisitions”) even where the transaction does not fulfill any merger control thresholds in the EU. 

By James Killick & Peter Citron^[1]

On July 13, 2022, the General Court of the European Union confirmed the European Commission’s jurisdiction to review the Illumina/Grail transaction following a referral pursuant to Article 22 EUMR. The judgment is an important endorsement of the European Commission (“EC’s”) recent change in its Article 22 referral policy, and may embolden the EC to call in for review of certain transactions where it may have concerns (in particular suspected so-called “killer acquisitions”) even where the transaction does not fulfill any merger control thresholds in the EU.

I. CHANGE IN EC REFERRAL POLICY

In March 2021, the EC published a guidance paper^[2] (the “Guidance Paper”) that, with immediate effect, encouraged national competition authorities to refer certain transactions to the EC for review even where they do not meet the national merger control thresholds of the referring