En ny era för den europeiska koncentrationskontrollen - En utredande analys av den nya tillämpningen för artikel 22 i koncentrationsförordningen och förvärvet Illumina/Grail.

Sammanfattning: This essay examines the new application of article 22 of the EC Merger Regulation, especially the uncertainties that thereby arise for parties in mergers and acquisitions. The article’s new application is a clear change to the European Commission's own policy and practice regarding the application of the provision. The purpose of the change is to modernize the EU merger regulation to detect and prevent so-called killer acquisitions. This is when big well-established companies acquire smaller and innovative companies and "kill" their innovative idea. This thesis tries to examine these transactions in how and why they are a problem. The new application for article 22 constitutes that the EU member states now have the possibility to refer acquisitions to the European Commission for review even if the acquisitions doesn’t meet the economic turnovers that the merger regulation requires. The change will lead to significant consequences for parties in acquisitions and for the market itself. The thesis examines the biggest uncertainties that the change and the Commission's new guidance will have for future acquisitions. The uncertainties that this essay outlines are extensive, and the absence of instructive case law leads to an unclear legal situation. The current case of Illumina's acquisition of Grail is the first referral that the Commission has received and accepted in accordance with article 22. The case is groundbreaking in multiple ways and this thesis examines its consequences for future acquisitions. The Commission's decision to partly examine, and partly forbid Illumina's acquisition of Grail entails a growing uncertainty for when an examination of an acquisition is necessary. This could lead to the necessity of advanced risk assessments for parties in acquisitions in whether they want to proceed with the planned acquisition or not. Because of the absence of public information regarding the Commission's decision in Illumina/Grail, the legal situation will stay unclear. There aren’t any guiding motives for the Commission's decision, and this will lead to more difficulty for acquiring companies of innovative start-ups to plan out their acquisition process. Therefore, there is an extensive risk that companies choose not to complete a planned acquisition. This is clearly something that will impact the greater market. In situations where companies choose to complete an acquisition despite the uncertainties surrounding a possible review, the parties need to extend their period for negotiations inter alia regarding risk management. The Commission's change of course for article 22 of the EC Merger Regulation and the decisions made by the Commission and the General Court in the Illumina/Grail case is the beginning of a new era for the EU merger regulation. All member states aren't - as the paper outlines - united in how referrals of article 22 should be used. It's clear that there is a need for more information and guidance on how the article and its prerequisite should be interpreted. Currently, the Commission shows no evidence of this happening any time soon. It will therefore likely take some years before new applicable guidance is available, in the shape of new case law.