The European Court of Justice has ruled that the Commission was not required to make a decision regarding the purchase of the biotech Grail by the United States company Illumina.
The Court of Justice of the European Union (CJEU) has handed a severe blow to the Commission by rendering a decision on Tuesday, September 3, which may curtail the goals of European antitrust law.
The judges in Luxembourg believe that the Community executive did not need to make a decision in the fall of 2022 regarding the American company Illumina’s acquisition of the biotech company Grail, which is creating blood tests for the early detection of cancers on the other side of the Atlantic, a year earlier. Illumina is the world champion in genetic sequencing machines.
The Court argued that not only did the $7 billion (€6.3 billion) transaction not violate any laws that were in effect in any of the EU Member States, but it also had “no European dimension” because “Grail did not generate any turnover in the EU [European Union] or anywhere else in the world”.
Nevertheless, the Commission had passed new regulations in March 2021 that were intended to enable it to avoid these difficulties in specific situations. Therefore, they were meant to give it permission to investigate purchases of creative start-ups that, up until that point, had eluded its purview but would nonetheless eliminate competition in a future industry.
The disputed operation’s legitimacy
The teams of the Directorate-General for Competition, which were invited by Belgium, Greece, the Netherlands, and France, saw an opportunity to exercise these prerogatives for the first time when Illumina completed the acquisition of Grail a few months later.
The acquisition “would hamper innovation and reduce supply in the emerging market for blood tests for early cancer detection,” according to the Commission’s September 2022 explanation. Additionally, it gave Illumina an order to annul the transaction in October of that same year.
The legality of the agreement was also contested by US authorities in April 2023, as they believed Illumina’s acquisition of Grail would distort competition in the US screening test market. Given this, Illumina made the decision to reverse course and, in June, listed the biotech business on the public exchange while holding onto just 14.5% of its total capital.
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