One Year After Illumina/Grail – How Are EU Competition Authorities Now Dealing With Below-Threshold Mergers
In 2021, the Commission adopted guidance clarifying that a national competition authority could refer a transaction under Article 22 EUMR to the Commission for review, even if it was not notifiable under national merger control rules. This allowed authorities to “bypass” the system of EU and national merger control thresholds and enabled the Commission to investigate transactions that fell below these thresholds. Previously, below-threshold transactions had escaped any merger review, which was seen as a major loophole, allowing large multinationals to acquire nascent competitors with no substantial turnover.