A wave of relief swept through businesses within the competition law landscape as the Court of Justice invalidated the Commission’s merger review policy extending its jurisdiction to review below the threshold transactions through referral requests from national competition authorities.
On 3 September 2024 the CJEU’s judgment set aside the judgment of the General Court and annulled the Commission's decisions to examine the proposed acquisition of GRAIL by Illumina. The Court found that the Commission is not authorised to accept requests from national competition authorities seeking the review of proposed transactions falling below both EU and national thresholds.
We were pleased to read that the Court heeded the opinion of Advocate General Emiliou that "the importance of predictability and legal certainty, in particular for merging parties, cannot be overemphasised" and has chosen not to endorse a policy where the need for effective control would come at the expense of these guarantees.
Potential alternative merger control enforcement?
In our previous update, we reflected on the potential outcomes and future scenarios for EU and national merger control policies. While our bet on the CJEU limiting the extended scope of the Commission's jurisdiction under Article 22 turned out to be well placed, we remain concerned about potential alternative (and creative) merger control enforcement. The court’s press release was swiftly followed by statements from various competition authorities, expressing their commitment to continue find ways to tackle transactions (potentially) harmful to competition that (currently) escape an ex ante merger control review.
Use of existing instruments
In its press release, the French competition authority commits “to carefully examine the Court of Justice's judgment and determine the existing or necessary tools to ensure that no merger, including those that are not subject to prior notification, would harm competition on the French territory” and expresses its intent “to make full use of the existing instruments, whether based on Articles 101 and 102 of the Treaty on the Functioning of the European Union or on equivalent provisions under national law.”
Possibilities for referrals
In her statement on the judgment, Executive Vice-President Margrethe Vestager even seemingly shrugs when pointing out that "In the last few years, several member states have introduced provisions allowing them to request the notification of transactions that do not meet national thresholds, in situations where they might have a significant competitive impact. The possibilities for referrals to the Commission under Article 22, in compliance with today's judgment are thus already more extensive than they were at the time of the Illumina/GRAIL referral."
We are curious to see how the National Competition Authorities will take this further!
