The road not taken - Killer Acquisitions, the changing nature of merger regulation and constitutional legitimacy in the modern EU

Abstract: With the recent Illumina/Grail judgement and subsequent prohibition, more and more scholars within the EU are starting to pay attention to killer acquisitions and are considering them as a growing problem. However, solutions to these problems must still be legitimate in accordance with the purpose, values and ideals of the EU. This is done through analysing whether or not the judgements in the Illumina/Grail can be understood using the theory of functional constitutionalism. Furthermore such an endeavour highlights the importance of the internal market when trying to construe what the EU is, and why a more holistic approach to governance (and specifically merger regulation) is futile. The analysis of the argumentation in the Illumina/Grail showed that the Court still adheres to their previous purposive approach, and whereas the Commission are showing some holistic tendencies, the functional approach combined with an interpretation of the internal market as a goal in it of itself is still the status quo. Subsequently, the paper finds that these judgements can be understood as legitimate using this framework.