The EC’s New Merger Referral Policy: A Creative Reform Or An Unnecessary End To ‘Brightline’ Jurisdictional Rules?

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In March 2021, in an effort to secure jurisdiction over transactions that might otherwise escape review under EU and national merger control rules, the European Commission (EC) published guidance encouraging Member State competition authorities to ask the EC to examine potentially anti-competitive concentrations that fall below national merger control thresholds. To date, in a decision that is under appeal to the General Court, the EC’s new guidance has been applied only once to refer the Illumina/Grail transaction to the EC. More generally, the EC’s new guidance has proven controversial, revealing divergences between certain Member State antitrust agencies and the EC.