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MAKING SENSE OF EU MERGER CONTROL: THE NEED FOR LIMITING PRINCIPLES

Aurelien Portuese



For many apparent reasons, merger control in the European Union (“EU”) has traditionally been centralized at the level of the European Commission. In addition to providing legal certainty, a one-stop shop precludes a Balkanization of merger control in the EU, which would have significant costs for transactions and, ultimately, innovation. Nonetheless, this commonsense approach is undermined by the European Commission itself.


The European Commission’s new interpretation of Article 22 of the EU Merger Regulation (“EUMR”) raises questions as to whether the objectives of centralized merger control – namely legal certainty and transaction cost minimization – are still pertinent to the European Commission. In violation of the constitutional principle of subsidiarity, the European Commission appears willing to invert the centralized merger control mechanism. Worse yet, the European Commission applies its novel interpretation of Article 22 EUMR to an inappropriate case, namely the Illumina/Grail merger. EU merger control needs limiting principles, or else the Commission’s unprincipled approach may undermine the legitimacy of EU merger decisions due to regulatory overreach.


This article critically analyzes the Commission’s new interpretation of Article 22 EUMR and demonstrates that the Illumina/Grail merger is the wrong case to apply a wrong policy. To prevent situations of overreach at the expense of mergers that promote competition, the article ends with suggestions for limiting principles to Article 22 EUMR.



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