In July 2022, the EC received from the GC in Illumina/Grail an important endorsement of its recent change in the Article 22 referral policy.

Although Illumina has appealed the GC's judgment, the ruling will likely further embolden the EC to call in for review certain transactions that it is concerned about—in particular suspected so-called "killer acquisitions"—even if the transaction does not fulfill any merger control thresholds in the EU. In the current landscape, merging parties are advised to factor in carefully the possibility of an Article 22 referral in transaction timetables, closing conditions and risk allocation provisions in the deal documents early on.

Under the DMA, which entered into force in November 2022, national regulators will be able to use gatekeepers' information regarding all intended relevant acquisitions to request that the EC examine a transaction under the Article 22 referral mechanism. This may trigger several additional referrals in the digital sector, albeit the EC is at pains to assure the antitrust community that it will call in only a few selected deals and exercise self-restraint.

Another potential avenue to review below-threshold transactions could become Article 102 TFEU.

In October 2022, AG Kokott proposed an opinion in Towercast that competition authorities should have the power to apply Article 102 TFEU to corporate transactions that are not reportable, and test under that provision whether the transaction as such constitutes an abuse of a dominant position. If the ECJ follows the Opinion, Article 102 will be confirmed as an additional avenue to challenge already completed transactions that flew under European competition authorities' radar because they did not trigger merger control thresholds anywhere in the EU.

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