Clifford Chance

EU Court of Justice Judgment in Illumina/Grail rejects European Commission's Expansion of Merger Review Jurisdiction

4 September 2024

In a final, non-appealable judgment, the Court of Justice of the EU has ruled that the European Commission (EC) does not have jurisdiction to review mergers that are referred to it by EU member state authorities under Article 22 of the EU Merger Regulation (EUMR), in circumstances where the merger does not meet the thresholds for notification under the EUMR and does not meet the criteria for review under any national merger control rules of the EU member states.

Parties to mergers that do not meet the thresholds for review under EU or member state merger control laws now have legal certainty that they can close their transactions without risk of the transaction still being referred to and reviewed by the EC. However, that comfort is tempered by the recently resurrected possibility of post-closing challenges under other provisions of EU competition law, as a result of the CJEU's Towercast judgment. Moreover, many national competition authorities in the EU now have "hybrid" regimes that allow them to review certain below-threshold mergers and will therefore still be able to refer mergers upwards for review by the EC even if the thresholds for a mandatory national filing are not met.

 

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