In the much reported Illumina / Grail case, the European Commission (“Commission”) relied on Article 22 of the EU Merger Regulation (“EUMR”) to review a transaction falling below the notification thresholds.  This approach has been endorsed by the EU’s General Court (“GC”) and the Commission has continued to rely on Article 22 EUMR to review below-threshold transactions.  The GC’s ruling was appealed before the European Court of Justice (“ECJ”). 

Since yesterday, the Commission's power to review such transactions faces significant uncertainty following the non-binding Opinion by ECJ’s Advocate General (“AG”) Nicholas Emiliou, who criticized the Commission's decision to review Illumina's acquisition of Grail. The AG supported Illumina's appeal against the GC ruling arguing that the GC's decision extended the application of the EUMR excessively.  He warned that the GC’s interpretation effectively granted the Commission broad powers to review mergers worldwide and even after deal closing, irrespective of various traditional factors such as turnover or presence in the EU.  This would potentially disrupt the legal certainty for merging parties.  The AG recommends the ECJ to overturn the GC’s decision and annul the Commission's reliance on Article 22 to review deals falling below notification thresholds.

The AG’s Opinion is non-binding, but if endorsed by the ECJ, would have significant implications, potentially diminishing the Commission's merger review toolkit and prompting calls for new legislation at EU or national levels to address below-threshold deals.  While some jurisdictions have already implemented various mechanisms to capture such deals, the AG’s stance suggests a need for a comprehensive reconsideration of the EUMR.  However, the outcome remains uncertain, with differing views within the antitrust community regarding jurisdictional reach and the Commission's policy changes.  Ultimately, the ECJ's decision will shape the future of EU merger control, potentially influencing not only the Commission's approach but also triggering broader legislative revisions at national level across various EU Member States.