Interpretation of Art 22 EUMR quashed by Court of Justice

On 3 September 2024, the Court of Justice of the European Union (CJEU) annulled a decision by the European Commission regarding the Illumina-Grail merger. Illumina, a US genetic analysis company, proposed to acquire Grail, a US company developing cancer detection tests. The merger did not meet the thresholds for notification under EU or national competition laws, as Grail had no turnover in the EU.

Despite this, the European Commission encouraged Member States to refer the merger for review, arguing it could affect competition within the EU. The French competition authority, supported by others, made such a request, which the Commission accepted under Art. 22 EUMR. Illumina challenged this decision but lost in the General Court.

However, the Court of Justice set aside the judgment of the General Court and annulled the Commission decisions. The Court of Justice finds that the General Court erred in concluding that a literal, historical, contextual and teleological interpretation of the Merger Regulation allowed national competition authorities to ask the Commission to examine a concentration that not only lacks a European dimension but also falls outside their competence to review such a concentration on account of the fact that it does not reach the applicable national thresholds. In particular, the General Court erred in establishing that that regulation provides for a ‘corrective mechanism’ for the effective control of all concentrations with significant effects on the structure of competition in the European Union.

So for the moment the sage is over but what will the consequences be:

• What about the Illumina Grail merger?
• What about those member states that had introduced or where planning to introduce similar rules to Article 22?
• What will the Commission do? They feel there is a gap and the Director General  mentioned publicly a couple of months ago  that if the Commission were to lose, they would would have to think about more intrusive powers than Art 22.

So once more watch this space.