In search of the Holy Grail? The EU Commission's new approach to Article 22 of the EU Merger Regulation

Abstract

Recently in certain sectors of the economy, in particular in the digital, pharmaceutical and biotech sectors, an increase in the number of concentrations has been detected involving emerging and innovative undertakings with competitive potential but which generate little or no turnover at the time of the transaction. Many such transactions do not fall under the EU merger control system or the domestic merger control systems of the Member States but may, nevertheless, have a detrimental impact on competition in the internal market. The European Commission reacted to this situation by adopting, on 26 March 2021, Guidance on the application of Article 22 (Article 22 Guidance). In this Article 22 Guidance, the Commission announced that it will abandon its previous practice of not accepting Article 22 referral requests from National Competition Authorities (NCAs) which are not competent to review the concentration at stake under their domestic rules. Instead, the Commission will now encourage and accept Article 22 referral requests, particularly from NCAs which do not have jurisdiction over the transaction at stake under their national merger regimes. The Article 22 Guidance gives rise to a number of questions and problems which we discuss in this article.