December 2024

EU-LEVEL JURISDICTION OVER “KILLER ACQUISITIONS”

IN THE AFTERMATH OF ILLUMINA/GRAIL
By Professor Peter Whelan1

I. INTRODUCTION
On September 3, 2024, the Court of Justice in its Illumina/Grail judgment held that a Member
State that has in place a merger control regime cannot refer a merger to the Commission
under Article 22 of Regulation 139/2004 (the “EU Merger Regulation” or “EUMR”2) when the
merger in question falls outside the scope of that Member State’s merger law.3 With the
rendering of this judgment, it is clear to observers that the Commission has suffered a major
setback in its recent approach to reviewing so-called “killer acquisitions”4, that is acquisitions
by established companies of innovators that aim to pre-empt competition in the future.5 Not
long before the delivery of the said judgment, the Commission had started to implement a
new policy for killer acquisitions that fall outside of its merger review jurisdiction due to their
failure to meet the required turnover thresholds that are articulated in the EUMR. 6 A central
feature of that specific policy was based on the assumption that, under Article 22 of the
EUMR, Member States could refer to the Commission for assessment any concentration that
falls below the turnover thresholds in the EU Merger Regulation provided that (a) the
concentration in question effects trade between the EU Member States and (b) it threatens
to significantly affect competition within the territory of the Member State(s) submitting the
request.7

The said assumption has, however, proven to be incorrect as a matter of EU law. An

important (jurisdictional) aspect of the Commission’s strategy of dealing with killer
acquisitions has thus been stopped in its tracks, a fact that was reflected in the inevitable
withdrawal in November 2024 of the Commission’s (2021) guidance on Article 22. For those
concerned about the issue of killer acquisitions, the judgment evidently raises a crucial
question: how should the Commission respond to the current legal situation in order to
ensure that killer acquisitions can be subjected to appropriate scrutiny under merger law in

1
Professor of Law, School of Law, University of Leeds; [email protected].
2
Council Regulation (EC) No 139/2004 of 20 January 2004 on the Control of Concentrations between
Undertakings [2004] OJ L24/1.
3
Case C-611/22 P, Illumina, Inc. v. Commission, ECLI:EU:C:2024:677.
4
See e.g. B. Meyring, G. Van Gerven & L. Prompers, “The CJEU Illumina Judgment – Back to the Drawing
Board for the European Commission?”, 4 September 2024,
https://www.linklaters.com/en/insights/blogs/linkingcompetition/2024/september/copy-of-illumina-grail.
5
See e.g. C. Cunningham, F. Ederer & S. Ma, “Killer Acquisitions” (2021) 129(3) Journal of Political Economy
649, 649.
6
See e.g. M. Vestager, “Speech by EVP Vestager at the International Bar Association 26th Annual Competition
Conference in Florence ‘Merger Control: The Goals and Limits of Competition Policy in a Changing World’”,
Florence, 9 September 2022, 2.
7
See European Commission, Guidance on the Application of the Referral Mechanism Set Out in Article 22 of
the Merger Regulation to Certain Categories of Cases [2021] C113/01, [13]-[17].
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Europe? With this question in mind, the current article critically evaluates the potential
impact of the Illumina/Grail judgment for the application of EU merger law to killer
acquisitions. It contains two substantive sections. It first outlines the current legal situation
pertaining to jurisdiction to review below-threshold mergers at EU level that exists following
the Court of Justice (“CoJ”) judgment in Illumina/Grail (Section II). It then proceeds to outline
and analyze some of the potential options that are available to the Commission to help it to
deal with the setback to its approach to killer acquisitions that is represented by the said
judgment (Section III). Finally, some concluding thoughts are offered (Section IV).

II. JURISDICTION TO REVIEW BELOW-THRESHOLD MERGERS FOLLOWING

ILLUMINA/GRAIL
The EU created a merger control regime in December 1989, with the adoption of Regulation
4064/89,8 a regulation that was later amended and then eventually replaced by the current
EU Merger Regulation in 2004. The EUMR applies to “concentrations,” i.e. mergers and
acquisitions (including full-function joint ventures) that involve “a change of control on a
lasting basis.”9 The substantive test for review under the EUMR is whether the concentration
in question would significantly impede effective competition in the internal market, in
particular as a result of the creation or strengthening of a dominant position.10 In determining
whether the Commission has jurisdiction to review a concentration one first assesses whether
the concentration has a “Community dimension.” The reason for this is that, in general, when
a concentration has a Community dimension it falls within the jurisdiction of the Commission
and when it does not it falls outside of its jurisdiction and can be reviewed by the relevant
authorities of the Member States (if their national laws so provide). To determine whether a
concentration has a Community dimension one assesses the specifics of the respective
turnovers of the undertakings concerned.11 In essence, for a concentration to have a
Community dimension it must reach certain (very high) turnover thresholds. In principle, all
concentrations with a Community dimension should be notified to the Commission,12 and
subject to certain exceptions, all such concentrations are subject to exclusive review within
the EU by the Commission.13 A foundational principle underpinning the operation of the
EUMR is thus the “one-stop-shop” principle, whereby concentrations “can be assessed in a
single procedure, and don’t have to go through a number of different procedures in individual
EU countries.”14

As intimated above, the one-stop shop principle is not absolute. In certain

circumstances, a concentration with a Community dimension can be reviewed by the relevant
authorities of the Member States and a concentration without a Community dimension can

8
Council Regulation (EEC) No 4064/89 of 21 December 1989 on the Control of Concentrations between
Undertakings [1989] OJ L395/1 (hereinafter “the original Merger Regulation”).
9
EUMR, Article 3(1).
10
Ibid., Articles 2(2) and 2(3).
11
See ibid., Articles 1(2) and 1(3).
12
See ibid., Recital 34 and Article 4(1).
13
See e.g. ibid., Recital 8 and Article 21(3).
14
European Commission, “New Merger Regulation – Frequently Asked Questions”, MEMO/04/9, Brussels, 20
January 2004, 1.
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be reviewed by the Commission. The former situation can arise where: (a) the national merger
review aims to protect legitimate interests other than those taken into consideration by the
EUMR (such as public security, plurality of the media and prudential rules);15 (b) the parties
to the transaction request (in the pre-notification phase) a referral of the concentration to a
Member State;16 or (c) the national competition authorities (“NCAs”) request a referral of the
case to them.17 A concentration without a Community dimension can be reviewed by the
Commission under the EUMR where: (a) the parties to the transaction request (in the pre-
notification phase) a referral of the case to the Commission;18 or (b) a Member State requests
a referral of the case to the Commission.19 It is with the latter type of referral that the
Illumina/Grail case is concerned. It therefore forms the main focus of this article.

The facts of the Illumina/Grail case are as follows.20 On September 20, 2020, Illumina,
a U.S.-based company active in the market for genetic and genomic analysis, agreed to
acquire sole control of Grail LLC, a company that develops blood tests for cancer. As the
turnover thresholds of the EUMR were not met by this planned concentration, it was not
notified to the Commission. Likewise, it was not notified in any of the EU Member States, as
it did not fall within the scope of their national merger laws. A week later a complaint was
submitted to the Commission about the proposed merger. Following talks with the
complainant and relevant NCAs, the Commission came to the view that the merger could be
the subject of a referral from a Member State under Article 22(1) of the EUMR. The said
provision states that

[o]ne or more Member States may request the Commission to examine any
concentration as defined in Article 3 that does not have a Community
dimension within the meaning of Article 1 but affects trade between Member
States and threatens to significantly affect competition within the territory of
the Member State or States making the request.

Relying upon Article 22(5), the Commission subsequently invited the Member States to
submit a referral request to it. On March 9, 2021, the French Competition Authority requested
the Commission to examine the Illumina/Grail concentration, doing so on the basis of Article
22(1) of the EUMR. Other NCAs requested to join the referral request, relying upon Article
22(2) of the EUMR. On April 19, 2021, the Commission formally accepted the referral request
(and in separate decisions the requests to join) and thereby took jurisdiction over the
concentration.21 Notably, the Commission found that it was appropriate to take jurisdiction
under Article 22 as the specific conditions for referral articulated expressly therein were
fulfilled: (a) the concentration effected trade between Member States; and (b) it threatened
to significantly affect competition within the territory of the Member States submitting the

15
EUMR, Article 21(4).
16
Ibid., Article 4(4).
17
Ibid., Article 9.
18
Ibid., Article 4(5).
19
Ibid., Article 22.
20
See Case C-611/22 P, Illumina, Inc. v. Commission, ECLI:EU:C:2024:677, [9]-[27].
21
See Case M.10188 – Illumina/GRAIL (Article 22(3) Decision – France), Commission decision of 19 April
2021.
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request.22 The Commission later adopted a decision prohibiting the merger.23 As the merger
was already completed, the Commission fined both Illumina (€432 million) and Grail (€1,000)
for “gun jumping.”24 Illumina, supported by Grail, appealed to the General Court to annul the
decision to accept the referral request, arguing, inter alia, that the Commission lacked
competence to review the merger.25 The jurisdictional issue at the center of the appeal was
whether the Commission could accept a request for a referral from a Member State under
Article 22 of the EUMR when that Member State did not have jurisdiction under its national
merger law to review the concentration in question.

After employing literal, historical, contextual and teleological approaches to legislative

interpretation, the General Court held that the Commission did in fact have the competence
to accept the referral request at issue (and thus to review the merger between Illumina and
Grail).26 In coming to this conclusion, it expressly held that, for a request under Article 22
EUMR to be legitimately accepted by the Commission, there is no legal requirement that the
requesting Member State actually have jurisdiction under its national merger law to review
the merger in question.27 On appeal on this point, Advocate General Emiliou came to the
contrary view, following an extensive (and more convincing) consideration of the four said
interpretive techniques.28 For the Advocate General, although there was a degree of force to
the argument that the wording of Article 22(1) provides support for the Commission’s
position, other relevant interpretative approaches (including those that are historical,
contextual and purposive in focus) “make it quite clear” that the Commission’s acceptance of
the referral lacked a legal basis in Article 22.29 In line with the Opinion of AG Emiliou, the
Court of Justice allowed the appeal;30 in doing so, it held that, as a matter of law, the
Commission did not have jurisdiction to accept a referral request in the case at hand, as the
Member State requesting the referral did not have jurisdiction under its own national law to
review the concentration in question.31

In line with the General Court, the Court of Justice employed four different approaches
to legislative interpretation. Also like the General Court, the CoJ accepted that a literal
interpretation of Article 22 (focusing on its use of the term “any concentration”) did not
provide a definitive conclusion to the legal issue at hand.32 Given this reality, the CoJ
proceeded to emphasize that the EU Courts are entitled to have recourse

22
See ibid., [109].
23
Case M.10188 – Illumina/GRAIL, Commission decision of 6 September 2022, C(2022) 6454 final.
24
Case M.10483 – Illumina/GRAIL (Article 14 procedure), Commission decision of 12 July 2023, C(2023)
4623 final.
25
Case T‑227/21, Illumina, Inc. v. Commission, ECLI:EU:T:2022:447, [83].
26
Ibid., [184].
27
Ibid., [183]. For a critical analysis of the General Court’s ruling, see E.H Kim & M. Marquis, “Illumina/Grail,
Chapter 1: The Unexpectedly Broad Merger Control Powers of the European Commission” (2023) 44(4)
European Competition Law Review 162.
28
Joined Cases C‑611/22 P and C‑625/22 P, Illumina, Inc. and another v. Commission, ECLI:EU:C:2024:264,
Opinion of AG Emiliou.
29
Ibid., [51].
30
Case C-611/22 P, Illumina, Inc. v. Commission, ECLI:EU:C:2024:677.
31
Ibid., [218].
32
Ibid., [123]-[125].
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to methods of interpretation which they consider appropriate in order to

clarify the exact scope of a provision of EU law that appears to be clear, its
being understood that every provision of EU law must be placed in its context
and interpreted in the light of the provisions of EU law as a whole, regard
being had to the objectives thereof and to its state of evolution at the date on
which the provision in question is to be applied.33

Consequently, that Court also examined the legal issue at hand from both historical,
contextual and teleological perspectives. With respect to the historical assessment, the Court
held that neither the Commission documents relied upon by the General Court in its holding
nor the travaux préparatoires for the EU merger regime (some of which originate from the
Council of the European Union) envisage that the Article 22 referral mechanism would
operate as a “corrective mechanism” to ensure that the Commission could have jurisdiction
over a concentration without a Community dimension “irrespective of whether that
concentration falls within the national merger control system of the Member State making
the request.”34 Consequently, the General Court’s historical assessment was deemed to be
faulty.35 In addition, the factors that were fed into the contextual analysis conducted by the
General Court were viewed as being inconclusive on the issue under examination.36 Finally,
the teleological analysis conducted by the CoJ led the Court to find against the Commission
and contrary to the view of the General Court. Central to this analysis was the determination
of the objectives of the EU Merger Regulation and of Article 22 therein. The premise of the
General Court’s ruling regarding the teleological approach was that Article 22 was designed,
inter alia, as a corrective mechanism to overcome deficiencies inherent in a merger regime
that confers jurisdiction on the basis of turnover thresholds. As just noted with respect to the
historical analysis that it conducted, the CoJ did not in fact view Article 22 as having the
objective of acting as such a corrective mechanism.37 Rather, for it, there are only two
(current) objectives of Article 22: (a) the provision allows the Commission to scrutinize
concentrations that may distort competition at a local level when a Member State is not
invested with a national merger regime; and (b) it extends the one-stop shop principle “so as
to enable the Commission to examine a concentration that is notified or notifiable in several
Member States, in order to avoid multiple notifications at national level and thereby to
enhance legal certainty for undertakings.”38 Logically, given the non-existence of the crucial
objective underpinning the General Court’s teleological analysis, the CoJ rejected the
conclusion of that analysis.39

In fact, the CoJ further emphasized that the General Court’s interpretation of Article 22 would
also be “inconsistent” with the various objectives that are evidently pursued by the EU Merger

33
Ibid., [218].
34
Ibid., [148].
35
Ibid., [150].
36
Ibid., [175].
37
See ibid., [200].
38
Ibid., [199].
39
Ibid., [201].
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Regulation.40 More specifically, the General Court’s interpretation of Article 22 would

undermine the objectives of (i) ensuring a “clear allocation of power” between the NCAs and
the Commission with respect to merger review and (ii) providing an “effective and predictable
system” of ex ante review for the concerned undertakings.41 An important point made by the
Court here was that, if Article 22 could be used even when the referring Member States does
not have jurisdiction under its own national merger law to review the merger, then an
informal notification system may become the norm across the EU for concentrations without
a Community dimension, an outcome that would clearly be inconsistent with the objective of
effectiveness.42 Moreover, if Article 22 can be so used then “the procedural requirements to
which undertakings would be subject would be particularly difficult to define, which would
not be consistent with the objective of that regulation of taking into consideration the need
of undertakings for legal certainty.”43

The bottom line of all of this is that there are three conditions that need to be fulfilled
in order for a Member State to be able to refer a concentration which otherwise falls outside
of the Commission’s merger review competence due to its falling underneath the turnover
thresholds specified in the EUMR. First, the concentration in question must effect trade
between Member States. Second, it must threaten to significantly affect competition within
the territory of the Member State submitting the request. Third, the Member State
submitting the request for referral must have jurisdiction to review the merger under its own
national merger law or, failing that, have no national merger review law at all (as is currently
the case with Luxembourg). This legal situation clearly has a negative impact on the
Commission’s ability to obtain jurisdiction over killer acquisitions, as those acquisitions will
often fail to meet the turnover thresholds in the EUMR.44 When the Commission wishes to
have jurisdiction over killer acquisitions without a Community dimension it will in effect be at
the mercy of the national laws of the EU Member States. One can thus easily understand the
desire of the Commission following the CoJ’s judgment in Illumina/Grail to “consider the next
steps to ensure that the Commission is able to review those few cases where a deal would
have an impact in Europe but does not otherwise meet the EU notification thresholds.”45

III. DEALING WITH THE IMPACT OF ILLUMINA/GRAIL

The judgment of the CoJ in Illumina/Grail represents a pivot moment in what some have
described as “a period of striking upheaval” for EU merger control.46 It clearly brings to the
fore the controversial issue of how to deal with killer acquisitions in EU merger law. This is
not really a situation that is unique to the EU. Indeed, in recent times, numerous competition

40
Ibid., [202].
41
Ibid., [205]-[210].
42
Ibid., [210].
43
Ibid.
44
See e.g. R. Whish, “Killer Acquisitions and Competition Law: Is There a Gap and How Should It Be Filled?”
(2022) 34(1) National Law School of India Review 1, 7.
45
European Commission, “Statement by Executive Vice-President Margrethe Vestager on Today’s Court of
Justice Judgment on the Illumina/GRAIL Merger Jurisdiction Decisions”, STATEMENT/24/4525, Brussels, 3
September 2024.
46
M. Eben & D. Reader, “Taking Aim at Innovation-Crushing Mergers: A Killer Instinct Unleashed?” (2023)
42 Yearbook of European Law 286, 290.
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authorities globally have been grappling with this difficult issue with respect to their own
merger regimes.47 Central to the debate is the growing recognition that there is a fatal flaw
in the premise that a concentration will only negatively affect competition if the acquired
entity has a turnover that meets a pre-determined level.48 To be clear though, this ongoing,
global debate on killer acquisitions is not simply confined to a question of deciding on how to
determine jurisdiction in an appropriate manner: assuming that killer acquisitions actually
pose the competitive dangers that are frequently ascribed to them,49 there are a number of
challenging (substantive) issues that need to be addressed here, and not just the
circumstances in which a given competition authority should have jurisdiction to review such
concentrations. Relevant issues would thus include, for example, whether a regime’s current
substantive test for merger review is appropriate and whether the extant analytical tools are
suitable to evaluate killer acquisitions.50 The current article is, of course, concerned with the
jurisdictional scope of the EUMR and, in particular, what future steps could/should be taken
at EU level in the wake of the Illumina/Grail case to ensure that the EUMR is fit for purpose
in terms of its jurisdictional reach. A number of options are available to the Commission with
respect to the said jurisdictional issue; this article considers four of the most noteworthy
ones.51

The first, and perhaps most obvious, option is to seek an amendment of the EUMR to
ensure that the interpretation of Article 22 that it advocated in the Illumina/Grail case
becomes law. This could involve creating a new paragraph within Article 22 (say, Article 22(6))
stating in effect that: “The Commission may accept a referral from any Member State under
Article 22(1) even where that Member State does not have jurisdiction to review the
concentration under its national law.” A belt-and-braces approach might also involve adding
the following statement to Article 22(1): “Such a request may be made by any Member State
even where that Member State does not have jurisdiction to review the concentration under
its national law.” The immediate risk with such an approach is that the amendment process
could expand beyond Article 22 and lead to the addition of undesirable elements within the
EU-level merger regime, such as an increased role for industrial policy or other non-
competition-related interests.52 The EU-level merger legislation has been amended in the
past, however, and the addition of undesirable elements was avoided in the process.
Although it is undeniable that EU-level legal reform can be “tricky”, with the potential for
47
See e.g. OECD, Start-Ups, Killer Acquisitions and Merger Control – Background Note, DAF/COMP(2020)5,
20 May 2020.
48
See C. Turgot, “Killer Acquisitions in Digital Markets: Evaluating the Effectiveness of the EU Merger
Control Regime” (2021) 5(2) European Competition and Regulatory Law Review 112, 118.
49
For a very critical account of the need to reform merger policy so as to deal with killer acquisitions, see J.
Barnett “‘Killer Acquisitions’ Reexamined: Economic Hyperbole in the Age of Populist Antitrust” (2024) 3(1)
University of Chicago Business Law Review 39.
50
N. Levy, H. Mostyn & B. Buzatu, “Reforming EU Merger Control to Capture ‘Killer Acquisitions’ – The
Case for Caution” (2020) 19(2) Competition Law Journal 51, 52.
51
For some additional options that could be adopted, see e.g. European Commission, Ex-Post Evaluation: EU
Competition Enforcement and Acquisitions of Innovative Competitors in the Pharma Sector Leading to the
Discontinuation of Overlapping Drug Research and Development Projects – Final Report, Prepared by Lear,
November 2024, 245-255.
52
See e.g. A. Riley, “Illumina/Grail: What is the Solution for Killer Acquisitions Now?”, 15 October 2024,
https://competitionlawblog.kluwercompetitionlaw.com/2024/10/15/illumina-grail-what-is-the-solution-for-
killer-acquisitions-now/.
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drawn-out negotiations and an uncertain outcome,53 the author believes that a strategy of
avoiding needed legislative reform in order to prevent the opening of a theoretical Pandora’s
box is simply too risk averse. More problematic here would be the proposed revision to Article
22 itself. Allowing the Commission’s position on Article 22 in Illumina/Grail to become law
introduces significant legal uncertainty and risks undermining the effective operation of the
EU merger regime.54

Indeed, it runs up against the logical concerns expressed by the Court of Justice (noted
above), and those articulated in depth by the Advocate General in his opinion.55 As the AG
emphasized, the Commission’s interpretation of Article 22 ensures that merging parties
desiring to have legal certainty that their concentration will not be reviewed by the
Commission following its completion (even when there is no legal requirement to notify the
concentration within the EU and when it is not subject to any obligation regarding suspension)
would need to suspend for a temporary period the implementation of the concentration and
ensure that the concentration is brought to “the attention of (potentially) all EU and EEA/EFTA
States (for an overall 30 different national authorities) in order to trigger the 15-working-day
time period provided for in the second subparagraph of Article 22(1) EUMR.”56 In practical
terms, this means that

undertakings entering into a transaction which, in principle, falls outside each

and every system of merger control in the European Union may end up being
driven to file informal notifications to all the national authorities just to avoid
a future use of the referral mechanism in question which could have, from
their perspective, dramatic consequences.57

Such an outcome would be an extensive, over-reaching exception to the EUMR’s one-stop

shop principle, leading to inevitable inefficiency and unpredictability.58 Importantly, the said
amendment would ensure that unless the merging parties take (costly) active steps to inform
all of the NCAs of their proposed non-notifiable concentration, they will not have legal
certainty whether, at some future undefined date, the Commission will assume jurisdiction
to review the (completed) merger due to the operation of Article 22 of the EUMR.59 For these
reasons, the option of amending the EU Merger Regulation to ensure that the interpretation
of Article 22 advocated by the Commission in the Illumina/Grail case becomes law is not a
sensible one.

53
S. Marco Colino & K.L.M. Chung, “Reshaping EU Merger Control: From Harm Detection to Harm Control”
(2024) 15(6) Journal of European Competition Law & Practice 409, 418.
54
See, e.g.: A. Burnside & A. Kidane, “Double Dutch: Illumina/GRAIL, Article 22 and the General Court”
(2024) 8(3) Competition Law & Policy Debate 140, 149; and R. Fadiga, “Novel Merger Control Practices
Expanded the Commission’s Jurisdiction to Review Concentrations beyond EUMR Thresholds” (2024) 15(1)
Journal of European Competition Law & Practice 3, 13.
55
Joined Cases C‑611/22 P and C‑625/22 P, Illumina, Inc. and another v. Commission, ECLI:EU:C:2024:264,
Opinion of AG Emiliou, [198] et seq.
56
Ibid., [201].
57
Ibid., [203] (emphasis in the original).
58
See ibid., [205]-[206].
59
Ibid., [207].
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The second option would be to accept the current legal situation and actively
encourage the Member States to have in place merger review laws that allow for them to
have jurisdiction to assess concentrations with very low turnover thresholds. Some EU
Member States (e.g. Ireland) already have in place laws that allow for their NCAs to “call in”
a merger transaction that falls below their notification thresholds.60 With such laws in place,
the practical effect of the ruling of the Court of Justice in Illumina/Grail becomes diminished:
the national regimes with such laws have by definition competence to review a killer
acquisition and thus, provided the other conditions underpinning Article 22 are fulfilled (i.e.
those relating to effect on trade and a threat to competition), they can legally request the
Commission to review a transaction. There are drawbacks to this approach, however.

The first drawback is that, as more and more Member States enact such laws, one
moves in reality towards the position that would exist if the first option noted above were
adopted: if all Member States with merger review regimes allow for the “call in” of killer
acquisitions, then to ensure legal certainty, parties to a planned concentration may be forced
to file informal notifications to all of the EU NCAs so that there will be no surprise launching
of an Article 22 request at some future date. This option thus leads to potential inefficiency,
a fact that undermines significantly its usefulness.

A second drawback (and one incidentally that also exists with respect to the use of
Article 22 under the first option outlined above) is that the approach would not allow for the
implementation of a one-stop shop principle. The reason for this is that Article 22 only allows
for the Commission to assess the “local” aspect of the referred concentration; under Article
22, the Commission does not examine the impact of the referred concentration in the
territories of those Member States that have not made or joined the request, unless such an
assessment is required in order to determine the impact of the concentration within the
requesting Member States.61 In line with this idea, the text of Article 22 makes it clear that
the EU Member States that have not requested a referral under Article 22 can still apply their
national law to the referred concentration. Indeed, the EUMR only disapplies national merger
law for those Member States that request (or join) the referral: “[t]he Member State or States
having made the request shall no longer apply their national legislation on competition to the
concentration.”62 As a result, with an Article 22 referral, a concentration could be reviewed
both by the Commission and by NCAs who have jurisdiction to do so but have declined join
the referral request. The existence of such parallel reviews provides potential for divergence
in outcome within the EU.63 For these reasons, the second option is far from ideal.

60
See e.g. A. McCarthy, “Sub-Threshold Transactions under EU Merger Control – An Analysis of the Relevant
EU Guidance and a Comparison with Certain Other ‘Call-in’ Systems” (2024) 47(2) World Competition 213,
231.
61
See J. Boyce & A. Lyle-Smythe, “Merger Control”, in D. Bailey & L. Elizabeth John (eds), Bellamy & Child
– European Union Law of Competition, 8th Edition, Oxford University Press, 2018, 648.
62
EUMR, Article 22(3).
63
S. Cisnal de Ugarte, M. Perez & I. Pico, “A New Era for European Merger Control: An Increasingly
Fragmented and Uncertain Regulatory Landscape” (2022) 6(1) European Competition and Regulatory Law
Review 17, 20.
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The third option would be for the Commission to accept the current legal situation
and, for killer acquisitions falling outside of the referral mechanism of Article 22, employ ex
post enforcement through reliance upon Article 102 TFEU. Many years prior to the adoption
of the original Merger Regulation, the Court of Justice confirmed that the acquisition by a
dominant undertaking of a competitor that strengthens its said dominant position could
constitute an abuse of a dominant position under Article 102 TFEU.64 The need to rely upon
Article 102 TFEU in the merger context evidently dissipated with the creation of a merger
regime at EU level in 1989. The issue of killer acquisitions (with very low turnovers), however,
has reawakened interest in the idea of applying antitrust law to mergers. The judgment of the
Court of Justice in the 2023 Towercast case provides some legal support for such an approach:
although the Court held in that case that NCAs and national courts can apply Article 102 TFEU
to a non-notifiable concentration,65 the logic of its position can be applied to the enforcement
of antitrust law by the Commission.66 On that basis, and subject to confirmation by the Court,
it is likely that the Commission can indeed can apply Article 102 TFEU to a concentration
completed by a dominant undertaking that is not notifiable under the EUMR.67

There are limitations to this option, however. First, and most obviously, the
undertaking that acquires control of another must be in a dominant position in the first place.
By contrast, under the EUMR there is no need for such dominance to be present in order for
the substantive test for prohibition to be fulfilled.68 Second, the legal framework applicable
to remedies for a violation of Article 102 TFEU is slightly different to that underpinning the
EUMR, in particular with respect to structural remedies (which are often the preferred type
of remedies to deal with problematic mergers). Under Article 7(1) of Regulation 1/2003 there
is in effect a mandated preference for behavioral remedies over structural ones: “[s]tructural
remedies can only be imposed either where there is no equally effective behavioral remedy
or where any equally effective behavioral remedy would be more burdensome for the
undertaking concerned than the structural remedy.”69 This legal preference for behavioral
remedies does not exist with respect to remedies (i.e. commitments) under the EUMR.70
More importantly, though, the ex post review of mergers suffers from the inherent problem
of trying to “unscramble eggs” if a certain (structural) remedy is to be imposed,71 not to
mention the problematic uncertainty that it raises for parties that are contemplating a

64
Case 6/72, Europemballage and Continental Can v. Commission, ECLI:EU:C:1973:22.
65
Case C-449/21, Towercast v. Autorité de la concurrence and Ministère de l’Économie, ECLI:EU:C:2023:207.
66
D.A. Sophia, “Closing the Tech Acquisitions Enforcement Gap: From Article 22 to Article 102” (2024) 20(1)
European Competition Law Journal 193, 211.
67
Some academics have readily assumed that this is indeed the legal situation following Towercast; see e.g. R.
Fadiga, “Merger Control Without Acquisition of Control? Limits to the Expansion of Merger Review After
Towercast” (2024) 45(9) European Competition Law Review 403, 403.
68
See EUMR, Article 2(2) (“[a] concentration which would not significantly impede effective competition in
the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a
dominant position, shall be declared compatible with the common market” (emphasis added)).
69
Council Regulation (EC) No 1/2003 of 16 December 2002 on the Implementation of the Rules on Competition
Laid Down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, Article 7(1).
70
See e.g. I. Kokkoris & H. Shelanski, EU Merger Control: A Legal and Economic Analysis, Oxford University
Press, 2014, 533.
71
See e.g. S.A. Sher, “Closed But Not Forgotten: Government Review of Consummated Mergers under Section
7 of the Clayton Act” (2004) 45(1) Santa Clara Law Review 41, 81-82.
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merger.72 Although potentially of some use, Article 102 TFEU should not be seen as a panacea
to the jurisdictional issue presented by the notion of killer acquisitions.

The final option to be noted here is to seek an amendment to the EU Merger

Regulation that would allow for (certain) killer acquisitions to come within the concept of
“European dimension” (and thus be reviewable by the Commission) even when they fall
below the current turnover thresholds. Such an amendment could, if necessary, confine the
revision in question to particular types of transactions or to particular sectors of the economy
where killer acquisitions may be understood to be most prevalent or problematic (e.g.
pharma or the digital economy).73 Various methods of implementing this option are available,
including reducing the thresholds themselves or creating an additional route to the existence
of a Community dimension (e.g. one based on the transaction value of the concentration). If
one were to reduce the turnover thresholds, then one would be faced with the very
challenging issue of determining how low they should be set so as to capture problematic
killer acquisitions.74 The obvious danger with reducing the turnover thresholds is that it risks
casting the net too widely, catching far too many (unproblematic) concentrations, in the
process causing a costly administrative burden on concentrations to the potential detriment
of merger activity that is beneficial to society.75 In the words of the Commission, with lower
turnover thresholds, there is a risk of catching large amounts of false positive cases and/or
spending time on consultations to clarify jurisdictional questions. This would negatively
impact the Commission’s resources, potentially taking away manpower from competitively
significant cases.76

Changing the turnover thresholds, then, may well be a sub-optimal response to the
problem. An alternative method of capturing killer acquisitions that could prove fruitful is the
use of a transaction value threshold,77 as exists in, inter alia, Germany.78 In contrast to current
thresholds based on turnover, a transaction value threshold can ensure that the jurisdictional
test for merger review is reflective of the future strength of the concentration at issue.79
Adopting such a threshold therefore allows one to acknowledge “that a loss of a rival that will
be important in the future can be as harmful as a loss of an already important rival” and that
the jurisdictional filter of existing turnover might not capture a loss of potential competition.80

72
See e.g. E. Fischer, “Double-Checking Mergers: Ex-Ante and Ex-Post Competition Law Enforcement and Its
Implications for Third Parties” (2024) 15(6) Journal of European Competition Law & Practice 428, 429 and
430.
73
Cp. J. Crémer, Y-A de Montjoye & H. Schweitzer, Competition Policy for the Digital Era, 29 March 2019,
114.
74
N. Levy, H. Mostyn & B. Buzatu, “Reforming EU Merger Control to Capture ‘Killer Acquisitions’ - The
Case for Caution” (2020) 19(2) Competition Law Journal 51, 58.
75
See e.g. OECD, op. cit., 38.
76
European Commission, Summary of Replies to the Public Consultation on Evaluation of Procedural and
Jurisdictional Aspects of EU Merger Control, July 2017.
77
F. Scott Morton, P. Bouvier, A. Ezrachi, A. Jullien, R. Katz, G. Kimmelman, D. Melamed & J. Morgenstern,
Stigler Committee on Digital Platforms – Final Report, Stigler Center for the Study of the Economy and the
State, 2019, 16.
78
See the German Competition Act (“GWB”), Section 35.
79
OECD, op. cit., 39.
80
Ibid.
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However, like any non-turnover threshold that could be added to the EUMR, the transaction
value threshold would need to fulfil a number of important conditions; specifically, it

(i) would need to ensure clarity as to whether a given transaction must be

notified; (ii) should minimise the additional administrative burden and
transaction costs that would be triggered; (iii) should point to the existence of
a local nexus with the EEA; (iv) should ensure harmonious co-existence of a
nonturnover-based threshold for EU merger control with national merger
control systems; and (v) should be set in such a way as to not capture too
many irrelevant transactions.81

Given this context, there are significant drawbacks to adopting a threshold based on
transaction value. For a start, determining the exact contours of the transaction value
threshold is a very challenging task: indeed, as noted by Crémer et al. in their 2019 report,
given that the number of concentrations that will be problematic in competitive terms way
well be quite low, a very “fine line” will exist “between introducing a transaction value
threshold which is too low and captures too many transactions and one which is too high and
does not capture enough.”82 In addition, it can be incredibly difficult to determine the specific
value of a transaction, and that value may well change rapidly due to events that are
unconnected to the actual value of the underlying assets.83 Moreover, to avoid infringing
international law principles of comity, and to ensure consistency with EU-level jurisprudence
on “effects-based” jurisdiction, the transaction value test would need to ensure a local nexus
with the EU – which is something that is far from straightforward when one is faced with a
transaction involving competitors with very low current revenues.84 Consequently, it is easy
to understand why at EU level there appears to be little appetite to add into the EUMR a new
threshold based upon transaction value.

IV. CONCLUDING THOUGHTS

The brief analysis above demonstrates that there is no clear-cut answer to how the
Commission should respond to the legal situation that exists following the Illumina/Grail
judgment. All of the options noted above display notable drawbacks that could prove
problematic in practice. Dealing with the jurisdictional issue pertaining to killer acquisitions is
therefore not a simple task. Whichever option is eventually chosen, it is imperative, of course,
that it is an efficient response to the problem. Trade-offs will have to be made in this context,
and an appropriate balance needs to be ensured between providing adequate scope for
effective merger review at EU level and providing predictability and legal certainty for
merging parties. All of the above analysis was premised on the idea that killer acquisitions
falling below the current turnover thresholds in the EUMR can pose problems for competition
in the internal market. To argue robustly that reform to the EU-level merger regime needs to
occur in response to the Illumina/Grail judgment, one needs to demonstrate a solid empirical

81
See e.g. European Commission, Commission Staff Working Document, Evaluation of Procedural and
Jurisdictional Aspects of EU Merger Control, SWD(2021) 66 final, 127.
82
Crémer et al., op. cit., 114.
83
Levy et al., op. cit., 58-59.
84
Ibid., 59.
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foundation to the claim that killer acquisitions represent a genuine, significant threat to
competition. The stronger that empirical foundation becomes, the more compelling the case
for action will be. In the meantime, it may simply be best to caution for a “wait and see”
attitude here.

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