All eyes are on Illumina/GRAIL following the Advocate General’s (AG) opinion. If the European Court of Justice follows the AG, it will overturn the European Commission’s (EC) new approach to referrals under Article 22. This is generating much debate in the merger control community.

Will the European Court of Justice (ECJ) follow the AG?

This is a highly contentious issue – since the European Commission’s approach enables it to review concentrations which it and the member states do not have jurisdiction applying the thresholds in their relevant laws. The AG used some fairly strong language in his opinion which the ECJ will have difficulty ignoring, however it rules. For Illumina itself, there are number of other live appeals, but the effect of the ECJ ruling will be felt much more widely.

Beyond the two Article 22 reviews that are currently live in Brussels, there is explicit reference in the Digital Markets Act to Article 22 being used by the EC to review gatekeeper concentrations of which the EC is informed.

We will be eagerly awaiting the ECJ Judgment. For a full analysis, background of the case and the impact on merger control, watch our latest “Let’s talk antitrust” video where Ian Giles and Miranda Cole discuss the issues or read our detailed briefing.