EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
cannot review or apply their competition rules to a concentration that has been notified to the Commission. Under certain circumstances, the Commission will accept exclusive jurisdiction over cases that do not meet the EU thresholds, upon referral by one or more EU member states or upon request of the parties, or it will agree to transfer its juris - diction back to one or more member states (see 2.1 Notification ). Exceptions The Commission’s exclusive jurisdiction over concentrations with an EU dimension is subject to several limited exceptions regarding: • the “legitimate interests” of member states in public security, media plurality, prudential rules or other exceptional interests under Article 21 (4) of the EUMR; • the national security interests of member states relating to the production and/or trade in certain goods intended for exclusively mili - tary purposes under Article 346 of the Treaty on the Functioning of the European Union (TFEU); and • certain products for which jurisdiction does not extend over the EFTA states under Proto - col 2 of the EEA Agreement.
thresholds to be referred to the Commission for review and that allow deals meeting the EU thresholds to be referred to the member state NCAs. Referral to the Commission By the parties (Article 4 (5) EUMR) Where a transaction does not meet the EUMR thresholds but requires notification in at least three member states, the notifying parties may make a “reasoned submission” to the Commis - sion, requesting that it review the transaction, rather than the member state NCAs. If the NCAs do not object, this reduces the notification bur - den by allowing the transaction to benefit from the EU’s one-stop shop principle. Historically, fewer than 2% of such referral requests have been rejected. By the member states (Article 22 EUMR) One or more member state NCAs may request that the Commission takes jurisdiction over a transaction that does not meet the EUMR thresholds if such transaction: • affects trade between member states; and • threatens to significantly affect competition within the territory of the requesting member state(s). In practice, fewer than 8% of such referral requests have been rejected. In early 2021, the Commission clarified that a member state NCA does not need to have juris - diction over the transaction in order to refer it to the Commission. This opened the door for deals that did not meet the notification thresholds in any member state to be referred to the Commis- sion for review. However, the Commission’s first decision to accept a referral under this policy, in the Illumina/GRAIL transaction – which the Com -
2. Jurisdiction 2.1 Notification
Parties must notify any concentration with an EU dimension (see 2.5 Jurisdictional Thresholds ) to the Commission and receive clearance before it can be implemented. The EUMR contains several referral mechanisms that allow transactions that do not meet the EU
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