I. INTRODUCTION
On 26 March 2021, the European Commission ("EC")
published its "Guidance on the application of the referral
mechanism set out in Article 22 of the Merger Regulation to certain
categories of cases" ("Guidance"). Art. 22 of
the Merger Regulation ("EUMR") includes a referral
mechanism whereby one or more Member States may request the EC to
examine any transaction that does not have an EU dimension but
affects trade between Member States and threatens to significantly
affect competition within the territory of the Member State or
States making the request. Driven by concerns that certain
competitively significant transactions escape merger control
review, the EC, via the Guidance and in contradistinction to its
previous policy under Art. 22 EUMR, now actively encourages Member
States to refer certain transactions to it even if they do not meet
national merger control thresholds (turnover-based or otherwise).
This is particularly the case with respect to
