Brussels à jour - The Commission's new guidance on referrals under article 22 of the EU merger regulation

26 March 2021 was a busy day for the Commission. Not only did the Commission publish the results of its recent evaluation of the EU's merger control regime and launched the impact assessment stage regarding the simplification of the merger review process. It also released the long-awaited guidance on the proposed policy change around the referral mechanism laid down in Article 22 of the EU Merger Regulation (the "Article 22 Guidance"). Article 22 allows Members States to refer certain deals to Brussels, a provision that the Commission is hoping to use as a new tool to catch "killer acquisitions" which might otherwise evade merger control review in the EU.

While the proposed policy change raises many questions for deal makers and antitrust counsels advising them, the Article 22 Guidance offers somewhat limited answers. At the same time, the Commission already found its first test case for the new policy: According to reports in the press, the Commission invited the Members States to refer the acquisition of Grail by Illumina Inc., a transaction in the healthcare industry, to Brussels, although no Member State had jurisdiction to review the case. The French Autorité de la concurrence has apparently taken up the invitation and it now remains to be seen if and how the case will progress on European level. 

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