Illumina’s Light on Article 22 EUMR: The Suspended Step and Uncertain Future of EU Merger Control Over Below-Threshold “Killer” Mergers

Illumina/Grail marks a “critical juncture” in EU merger control. Breaking with the past, reliance on a centralized and predictable administrative system of ex ante merger control is no longer a given in the EU. The expansive use of the ad hoc Article 22 referral mechanism under the EU Merger Regulation would de facto erode its “brightline” jurisdictional rules and upend the allocation of “exclusive” EU and Member State merger competences based on turnover thresholds: the exception could override the rule with significant systemic consequences. The unprecedented face-off between the Commission and Member States over who is to rule over potentially problematic but non-reportable “killer” mergers has been resolved, for now and in part, by the EU Courts. But albeit the “new” Article 22 may be declared dead in a landmark reversal by the European Court of Justice, its legacy lives on and shadows of uncertainty loom over the future of EU merger control.