The EU Commission accepts its first merger referral under Article 22 of the Merger Regulation where the transaction falls below the requisite thresholds (Illumina / Grail)

On 23 March 2021, the European Commission (“Commission”) published Guidance outlining its new approach in accepting and encouraging referrals under Article 22 of the Merger Regulation of deals that fail to meet either the EU or Member State turnover thresholds but that nonetheless affect competition. Shortly thereafter, on 20 April 2021, the Commission accepted its first Article 22 referral under the new policy, asserting jurisdiction to review the lllumina/Grail transaction although the deal was not notifiable in the EU – either to the Commission or to any Member State competition authority. This shift in the EU’s longstanding policy of discouraging such referrals could signal a new era of expansive Commission powers and of increased uncertainty for merging parties. The Article 22