Re-Prioritising Referrals under Article 22 EUMR: Consequences for Third Parties and Mutual Trust between Competition Authorities

This article assesses the distribution of enforcement powers across national authorities and the European Commission, in light of the Commission’s Guidance on the referral mechanisms under Article 22 in 2021 and the General Court’s judgment in Illumina/GRAIL1 and the Commission’s prohibition decision in 2022. The Article shows how the issue of delegation of enforcement powers between the Member States and the EU institutions has always been at the heart of the negotiation processes of the Merger Regulation, and though implemented through compromises, such as Article 22, this question may not have been entirely resolved. The article critically analyses two specific consequences of the way the Commission re-prioritised cases eligible for Article 22 referrals: the consequences of the Commission’s new policy for third parties and the principles of effective competition law enforcement including the principle of loyal cooperation and mutual trust.