Day 8
(Photo by Callan Carpenter, CC BY-SA 4.0, via Wikipedia Commons)
In the Illumina/Grail case (C-611/22 P and C-625/11 P), the Commission prohibited the takeover of Grail by Illumina in September 2022. The Commission, fearing a “Killer Acquisition”, decided to step in. Just one problem: Neither the ECMR thresholds, nor the national ones were met. Vestager’s enforcers came up with a solution: Under Art. 22 ECMR, National Competition Authorities would be able to refer cases even if their national merger control thresholds were not met. The ECJ did not agree, overturning the decision of the General Court. Now what? What alternative method of merger enforcement did Director-General Olivier Guersent contemplate in this year’s ABA Spring Meeting and the ICN Annual Conference in Brazil?
Prohibiting acquisitions by Big Tech and Big Pharma ("the Valletti-option")
Strengthening ex post merger control under Art. 102 TFEU, now supported by the Towercast-ruling of the ECJ
Engaging in a regulatory dialog with dominant market players to dissuade them from transactions
Changing Art. 22 ECMR to enable national referrals when the thresholds are not met
