BRUSSELS À JOUR – Brussels Callin‘ for Call-in Rights: Legal Uncertainty Remains after Illumina/GRAIL

Following the ECJ’s landmark judgment in Illumina/GRAIL, the Commission's “secret weapon” to catch below the threshold mergers, Article 22 referrals, is off the table, at least in its original version. Consequently, the Commission and many Member States are currently assessing the feasibility of implementing “call-in rights” while (also) considering the potential conflict with legal certainty as an important principle of EU and national law. This clash has already become imminent in the Nvidia/ Run:ai case, where the Italian NCA has made use of its call-in right to refer the below-threshold merger to the Commission, resulting in the parties to the transaction lodging an appeal with the General Court (despite the transaction having been cleared). Overall, which instrument is best suited to resolve the issue remains unclear. It appears that the Commission and many Member States have numerous New Year’s resolutions in this regard. So, let’s see what is on their list and who might be ready for a call to the Commission…

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