34 1casest OF REFERRAL TO THE COMMISSION PURSUANT TO ARTICLE 22 IN MARCH 2021 IN THE CANCER SCREENING SECTOR (TAKEOVER OF GRAIL BY ILLUMINA) … ENHANCED CONTROL TO its policy in this field, at the request of topical examples of this. Another potential AVOID ANY BLIND SPOTS the French Autorité in particular, the Euro- problem was the possibility for an under- pean Commission announced on 11 Sep- taking in a dominant position to buy out Change in the European tember 2020 that it would withdraw this its various small competitors on markets Commission’s approach to recommendation and that it would now with already high levels of concentration. the referral of transactions accept referral requests pursuant to this This change in the approach of the Euro- Article 22 of Council Regulation article submitted by national competition pean Commission is therefore an excellent No 139/2004 of 20 January 2004 authorities, including when the merger solution, which contributes to addressing enables a national competition autho- transactions concerned do not exceed the concerns that have been raised about rity to request that the European Com- the national notification thresholds of the risk of a number of merger transac- mission examine a merger that does not any Member State, providing that the tions that have a negative impact on com- have a European dimension but would conditions established in this article petition eluding controls by competition affect trade between Member States and have been met. authorities, even though they are some- threaten to significantly affect compe- times under examination outside the Euro- tition within the territory of the Member A major step forward to review pean Union, for example in the United State or States making the request. sensitive transactions that States. It is also a swift solution because The Regulation does not require the could escape control it can be implemented without affecting Member State or States to be compe- The Autorité welcomes this develop- current legislation. Finally, it is a targe- tent to control the relevant merger. The ment, which it has repeatedly called for, ted solution: all other possible measures European Commission had, nonetheless, in order to gain a better understanding of to fill this gap in merger control, such as the always stated up until now that it would the phenomenon of "killer acquisitions" definition of new notification thresholds, only accept a referral pursuant to this or "sub-threshold acquisitions", which would have made control much more cum- article if the merger transaction excee- may be carried out by digital platforms, bersome for both companies and adminis- ded the national notification thresholds but also, for example, in the pharmaceuti- trations, which would not have fulfilled the in at least one Member State. Amending cal or biotechnology sectors, or in certain ultimate objective of precise control of a highly concentrated industrial sectors. few transactions with a potentially subs- Such blind spots could raise competition tantial impact. concerns in terms of the competitive dyna- mic of the markets or maintaining incen- The Autorité immediately set up a market Discover our webinar tives to innovative. watch to detect transactions that could on Article 22 referrals with Olivier Guersent, be referred to the European Commission. Director General of the This change is a major step forward in The Commission has also adopted an Inter- European Commission’s improving the handling of merger transac- pretive Communication in order to pro- Directorate General tions, especially those involving innova- vide companies and their boards with as for Competition, Angélique de Brousse, tive players. much predictability as possible, it being Senior Competition Legal Officer understood that the decision-making prac- EMEA at Johnson&Johnson One risk identified was that some transac- tice that will be developed will provide addi- and Anne Wachsmann, Partner tions involving highly innovative players, at Linklaters (in French). tional clarifications. which are only just starting to earn returns on their innovations in the market, may not Press release, 15 September 2020 Olivier Guersent looks back be subject to merger controls, as the tar- at the event in a video get has an insufficient turnover to trigger (in French). the notification thresholds. The takeover of Instagram or WhatsApp by Facebook are