Clifford Chance
Remedies after Illumina/GRAIL – the Thorny Question of Proportionality
30 December 2024
The 2024 judgment from the European Court of Justice in the Illumina/GRAIL case provided a major clarification on the possibility for the European Commission ("EC") to review transactions that fall below the notification thresholds. The judgment invalidates the EC's novel interpretation of accepting and indeed encouraging referrals from EU Member States of transactions that did not meet the merger control review threshold at the EU or national levels, as well as the EC's longstanding practice of allowing any Member State (even those without competence to review the transaction at a national level) to join a referral request. This article discusses the implications of the Illumina/GRAIL judgment, with a particular focus on its impact on the scope of the EC's substantive assessment in referred cases and its ability to extract remedies that go beyond the territories of the Member States that validly refer the transaction for the EC's review.
This article was first published in the CPI Antitrust Chronicle Illumina/GRAIL December 2024 – 1 and is reproduced with the consent of the publisher.
