Post-Illumina: EU Competition Authorities Have Three Options To Still Catch Below-threshold Acquisitions

For some time now, the European Commission (EC) and national competition authorities (NCAs) have been striving to catch so-called "killer acquisitions" under their merger control rules to thereby close a perceived enforcement gap. In March 2021, the EC thought it had found the solution by amending its Art.22 EUMR referral policy, but this approach has recently been invalidated by the European Court of Justice (ECJ) (see our briefing here). The quest continues though, and we describe below the three main avenues still available to the competition authorities to tackle these transactions.

Background

In September 2020, Illumina announced its acquisition of Grail, a start-up active in pipeline cancer detection technologies, for $8 billion. The transaction was not reportable to the EC or to any Member State as it did not meet the turnover thresholds. Nonetheless, the EC sought to review the deal by requesting and accepting a referral request under Art.22 EUMR by