Between Legal Dogma and Counterfactual Analysis: Exploring Jurisdictional Shifts in EUMR Post Article 22 Guidance

Abstract: The jurisdiction of the Commission to review concentrations under the provi-sions of the EUMR is established either by the turnover thresholds or the case referral system. In both of these cases, jurisdiction is established through quantitative criteria, with the exception of the case referral mechanism provid-ed for in Article 22 EUMR. Historically, Article 22 EUMR was designed to enable Member States that do not have a national merger regulation to request the Commission to, on their behalf, review concentrations that are competitively significant within their territory. However, through the re-appraisal of Article 22 EUMR, that article has now been ‘made’ available for all Member States regardless of the exist-ence or scope of national merger control regulation. With this new approach, the Commission has managed to expand the jurisdic-tional scope of the EUMR de facto: virtually all M&A transactions can now be subject to scrutiny by the Commission – as illustrated by the case of Illu-mina/GRAIL. Had the re-appraisal of Article 22 EUMR not taken place this would not have happened. With the re-appraisal of Article 22 EUMR, the Commission has managed to ‘close’ the enforcement gap. Instead of opting for a reform of the turnover thresholds, the Commission opted for flexibility as its recourse in handling jurisdictional challenges. With the flexibility provided by that article, there is no longer a need to fear that anti-competitive concentrations, such as ‘killer acquisitions’, may escape regulatory scrutiny. However, this flexibility comes with the price of legal certainty. The re-appraisal of Article 22 EUMR is considered to have overhauled the threshold-based system of the EUMR. The safe harbour that once was pro-vided by the turnover thresholds now no longer exists. The current state of the EUMR landscape is characterised by unprecedented uncertainty. However, considering that the EUMR is still in the early stages of entering this new era, one cannot yet draw definite conclusions. If the case of Illumi-na/GRAIL serves as an indication, one can be sure that the straightforward and objective mechanism provided by the EUMR is no more.