The jurisdictional reach of EC merger control: Striking the right balance

The jurisdictional scope of EU merger control has faced criticism in recent years for being insufficiently broad to capture all anti-competitive transactions. In March 2021, the European Commission (EC) published guidance encouraging Member State competition authorities to ask the EC to examine potentially anti-competitive concentrations that otherwise fall below national merger control thresholds. In July 2022, the EC’s application of that guidance to the Illumina/GRAIL transaction was validated by the EU’s General Court. In allowing Member State agencies to empower the EC to investigate transactions that do not meet national thresholds, the Guidance Paper blurred the EU Merger Regulation’s brightline jurisdictional rules, introduced a degree of uncertainty into the determination of whether a given transaction may be subject to merger control, and allowed the EC to investigate non-reportable transactions that had been completed. This article describes the EC’s new policy and explores its principal legal and practical implications.