A New Era in Assessing Mergers and Takeovers? On the Illumina-Grail Case

Abstract

The factually complicated and legally innovative Grail by Illumina takeover case is now more than two years old and there is still no final denouement in sight. It is a case with significant implications for the future development of the application of EU competition law in the area of takeover control. In this case, the Commission has tested both its new approach to the use of Article 22 EUMR and the application of the harm theory of foreclosure of rivals from a market that is nascent and will reach its full potential only in the future. This text seeks to outline the complicated development of the case, the various aspects of which are now being dealt with in parallel before the Commission, the General Court and the Court of Justice. In addition, it seeks to show which questions of the future EU merger control regime have already been answered, which remain to be answered and what are the limits of the search for answers.

Keywords: EU control of concentrations, vertical takeover, non-horizontal merger, jurisdictional criteria, article 22 of EUMR, referrals of cases, market foreclosure