Fitzpatrick, colleagues request intervention to ensure international regulatory competition

U.S. Rep. Brian Fitzpatrick (R-PA) joined a bipartisan contingent of colleagues in advocating for continued advocacy by the Biden administration to protect United States businesses and workers against discriminatory European Union (EU) competition regulation that unfairly targets American companies.

The nine lawmakers sent a Dec. 2 letter to U.S. Commerce Secretary Gina Raimondo expressing concerns that the EU’s emerging use of competition regulation as an instrument of industrial policy “will undermine U.S. innovation, harm the vital U.S.-EU trade relationship, and provide unfair advantages to China, Russia, and other foreign nations seeking to displace U.S. competitiveness in critical advanced technologies.”

Among the members who joined Rep. Fitzpatrick in signing the letter were U.S. Reps. Andrew Garbarino (R-NY), Dave Joyce (R-OH), Young Kim (R-CA), and Scott Peters (D-CA).

Specifically, Rep. Fitzpatrick and his colleagues wrote that European Competition Regulators are using new powers in the Digital Markets Act (DMA), in conjunction with recently adopted subjective jurisdictional criteria in Article 22 EUMR, to target U.S. innovation with ex ante merger reviews. 

And they noted that in February, bipartisan members from both houses of Congress wrote to President Joe Biden proposing that U.S. negotiators use the U.S.-EU Joint Technology Competition Dialogue and the U.S.-EU Trade and Technology Council to convey Congress’s “great concern” that the DMA unfairly targets American workers by deeming U.S. companies as gatekeepers based on discriminatory, subjective thresholds, according to their letter.

“The congressional letters urged that the EU slow down and incorporate revisions in the DMA that would allay the widely held U.S. concerns,” the members wrote. “Unfortunately, the EU Parliament did not accommodate U.S. concerns prior to advancing the [DMA].”

Now, wrote Rep. Fitzpatrick and the lawmakers, the European Commission (EC) has chosen as its test case for its expanded Article 22 power a wholly U.S. merger already under review by the Federal Trade Commission (FTC): the Illumina-Grail merger.

Illumina announced its intent to reacquire Grail in 2020, after which the Federal Trade Commission (FTC) brought an administrative action to block the merger, according to information provided by Rep. Fitzpatrick’s related statement.  

Last month, Illumina and Grail prevailed in a trial before the FTC’s Chief Administrative Law Judge, but days later, the EC stepped in to rule against the merger, signaling a likely divestment order in direct contradiction of the FTC’s own judge, creating legal inconsistency on both continents, the information says.

In their letter, the lawmakers requested that Secretary Raimondo intervene in the Illumina/Grail case to ensure that the U.S. does not set a precedent of foreign entities granting themselves boundless jurisdiction over Americans and American companies. Such unprecedented interference from the EC, said Rep. Fitzpatrick, would also hinder innovation in the early cancer detection sphere.

“Having access to universal screening tests is monumental when it comes to preventing cancer deaths,” said Rep. Fitzpatrick. “We must not allow foreign entities to strip away our research and development efforts and block innovation, particularly when it comes to a disease that impacts every American.”