In search of the Holy Grail? The EU Commission's new approach to Article 22 of the EU Merger Regulation
| Author | Anne Looijestijn-Clearie,Catalin S. Rusu,Marc J.M. Veenbrink |
| DOI | http://doi.org/10.1177/1023263X221139605 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
In search of the Holy Grail? The
EU Commission’s new approach
to Article 22 of the EU Merger
Regulation
Anne Looijestijn-Clearie*, Catalin S. Rusu*,
and Marc J.M. Veenbrink *
Abstract
Recently in certain sectors of the economy, in particular in the digital, pharmaceutical and biotech
sectors, an increase in the number of concentrations has been detected involving emerging and
innovative undertakings with competitive potential but which generate little or no turnover at
the time of the transaction. Many such transactions do not fall under the EU merger control sys-
tem or the domestic merger control systems of the Member States but may, nevertheless, have a
detrimental impact on competition in the internal market. The European Commission reacted to
this situation by adopting, on 26 March 2021, Guidance on the application of Article 22 (Article 22
Guidance). In this Article 22 Guidance, the Commission announced that it will abandon its pre-
vious practice of not accepting Article 22 referral requests from National Competition
Authorities (NCAs) which are not competent to review the concentration at stake under their
domestic rules. Instead, the Commission will now encourage and accept Article 22 referral
requests, particularly from NCAs which do not have jurisdiction over the transaction at stake
under their national merger regimes. The Article 22 Guidance gives rise to a number of questions
and problems which we discuss in this article.
Keywords
EU merger control, Dutch clause, non-notifiable concentrations, referral system, legal certainty,
enforcement
* International and European Law, Radboud University, Nijmegen, Netherlands
Corresponding author:
Marc J.M. Veenbrink, International and European Law, Radboud University, Montessorilaan 10, Nijmegen, 6500 KK,
Netherlands.
E-mail: marc.veenbrink@ru.nl
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(5) 550–571
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221139605
maastrichtjournal.sagepub.com
1. Introduction
For more than thirty years, the EU merger control system, based on Regulation 4064/89
1
and, cur-
rently, Regulation 139/2004 (hereinafter: EU Merger Regulation),
2
has formed a fundamental part
of EU competition law. Over the years these regulations have allowed the European Commission
(hereinafter: Commission) to scrutinize more than 8500 transactions prior to their implementation.
3
A key element of the EU merger control system is the so-called principle of one-stop shop laid down
Article 21(2) and (3). According to these provisions, the Commission has exclusive jurisdiction to
review transactions falling within the scope of application of the regulation. Members States may
not apply their domestic merger control rules to such transactions. A transaction falls within the
scope of the regulation if it qualifies as a ‘concentration’within the meaning of Article 3 and if
it has a so-called EU dimension within the meaning of Article 1(2) or 1(3). It is generally agreed
that the one-stop shop principle is more efficient and provides more legal certainty for undertakings
than would be the case if a merger had to be notified simultaneously to several different national
authorities.
Like all bright-line jurisdictional tests, however, the turnover thresholds of Article 1(2) or 1(3)
are not infallible. There are circumstances in which concentrations do not meet the turnover criteria
and are, thus, not susceptible to review by the Commission, but which may nevertheless have a sig-
nificant impact on competition in the internal market. In order to remedy such (or similar) incon-
gruities, the EU Merger Regulation contains a number of corrective or referral mechanisms,
4
allowing the re-allocation of jurisdiction to the authority best placed to assess the concentration
(Commission or a National Competition Authority –hereinafter: NCA).
5
So far, the referral system has worked well. Statistics show that both Member States and merging
parties have made ample use of this system.
6
In 2005 the Commission adopted guidelines setting
out its approach to case referrals (hereinafter: Notice on case referrals).
7
Recently, however, in
certain sectors of the economy, notably in the digital, pharmaceutical and biotech sectors, an
increase in the number of concentrations has been detected involving emerging and innovative
undertakings with competitive potential but which generate little or no turnover at the time of
the transaction. This has raised questions as to whether the turnover criteria are a suitable means
of determining the impact which certain concentrations may have on the market. Some Member
States, such as Germany and Austria, have recently inserted provisions relating to transaction
value into their domestic merger control systems in order to prevent significant concentrations
from not falling under their domestic turnover thresholds and thus escaping not only EU, but
also domestic scrutiny. Similar measures were discussed at EU level with regard to redrafting
the turnover thresholds of the EU Merger Regulation. However, the Commission decided not to
insert transaction value criteria into the turnover thresholds but instead to focus on Article 22 of
the EU Merger Regulation (the so-called Dutch clause), one of the referral mechanisms, which
allows Member States to refer concentrations without an EU dimension to the Commission for
1. Council Regulation 4064/89 on the control of concentrations between undertakings, [1989] OJ L395/1.
2. Council Regulation 139/2004 on the control of concentrations between undertakings, [2004] OJ L21/1.
3. https://ec.europa.eu/competition/mergers/statistics.pdf.
4. Articles 4(4), 4(5), 9 and 22 Regulation 139/2004.
5. See also I. Kokkoris and H. Shelanski, EU Merger Control. A Legal and Economic Analysis (Oxford University Press,
2014), p. 161 et seq.
6. https://ec.europa.eu/competition/mergers/statistics.pdf.
7. Commission Notice on case referrals in respect of concentrations (Notice on case referrals), [2005] OJ C56/2.
Looijestijn-Clearie et al. 551
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