Illumina/Grail: the “new normal” of killer acquisitions and below-threshold acquisitions in search of a reconsideration

The Illumina/Grail case, which significantly rejected the EU Commission’s wide interpretation of its powers of accepting a referral of a merger that did not meet the national merger control thresholds of the referring Member State, introduced changes in the EU about concentrations (Article 22 of the EUMR), suggesting a renewed reflection on the so-called killer acquisitions. The increased scrutiny into these potentially concerning acquisitions needs to be reconciled with the Digital Markets Act (“DMA”), according to which a designated “gatekeeper” is also subject to an obligation to inform the Commission of any proposed transaction that amounts to a “concentration” under the EUMR prior to its implementation. National Competition Authorities in the EU with express powers to “call in” transactions which do not meet national merger control thresholds will make increased use of such powers. The present paper intends to contribute to the debate, analysing the reasons, identifying limits and then proposing corrective measures from a de jure condito perspective which may safeguard the degree of innovation within the market and preserve digital players’ legitimate expansion strategies.