Brussels, 29 November 2024
The European Commission has decided to withdraw its 2021 communication providing guidance on the application of the referral mechanism set out in Article 22 of the EU Merger Regulation (‘EUMR’) to certain categories of cases (‘Guidance’).
Following its evaluation of the effectiveness of the turnover-based jurisdictional thresholds of the EUMR, the Commission adopted the Guidance setting out its revised approach to Article 22 of the EUMR allowing any Member State to request the Commission to examine a merger that does not have an EU dimension but affects trade within the Single Market and threatens to significantly affect competition within the territory of the Member States making the request.
Today’s decision to withdraw this Guidance follows the judgment by the Court of Justice of the European Union of 3 September 2024 in the Illumina/GRAIL case, holding that Member States cannot refer a transaction to the Commission under Article 22 of the EUMR when not competent to review the transaction under their national merger control rules, thereby invalidating the Commission’s revised approach to Article 22 of the EUMR and depriving the Guidance of its purpose.
In view of this judgment and in line with the principle of good administration, the Commission has decided to withdraw its Guidance. The Questions & Answers document providing further practical guidance on the implementation of the revised approach to Article 22 of the EUMR has also been removed from the Commission’s competition website.
The Commission will continue to work together with Member States and the parties to concentrations to assess whether their transactions will be reviewed under national merger control regimes or referred to the Commission in line with the legal requirements for such referrals as clarified in the Illumina/GRAIL judgment of the Court of Justice.
The withdrawal of the Guidance is without prejudice to any future initiative by the Commission in relation to transactions involving small and medium-sized enterprises or small midcaps that fall below relevant jurisdictional thresholds.
Source – EU Commission