The Commission has just suffered a serious setback from the Court of Justice of the European Union (CJEU), which issued a ruling on Tuesday 3 September that could limit the ambitions of European antitrust policy. The Luxembourg judges consider, in fact, that the Community executive did not have to rule, in the autumn of 2022, on the acquisition, a year earlier, by the American Illumina, world champion in genetic sequencing machines, of the biotechnology company Grail, which develops blood tests across the Atlantic for the early detection of cancers.
Not only, the Court explains, this operation of 7 billion dollars (6.3 billion euros) did not contravene any of the rules in force in any of the Member States of the Union, but also did not “Without a European dimension”from “The Grail had no turnover in the EU [Union européenne] nor anywhere else in the world.
In March 2021, the Commission adopted new rules designed to allow it to circumvent these obstacles in certain cases. They would thus authorise it to examine acquisitions of innovative start-ups that, until then, were outside its scope of control and could nevertheless eliminate competition in a sector of the future.
The legitimacy of the contested operation
When Illumina, a few months later, finalised the acquisition of Grail, the teams in the general competition department, contacted by France but also by Belgium, Greece and the Netherlands, saw the opportunity to use, for the first time, these prerogatives. In September 2022, the Commission explained that it feared that this acquisition “It hinders innovation and reduces supply in the emerging market for blood tests for early detection of cancer”. And in October of the same year it ordered Illumina to cancel the transaction.
In April 2023, the US authorities, considering that Illumina’s acquisition of Grail distorted competition in the US screening market, also questioned the legitimacy of the operation. In this context, Illumina decided to change course and, in June, took the biotech company public, retaining only 14.5% of its capital.
On 3 September, the American group welcomed the ruling of the Court of Justice of the EU, which, in its opinion, confirms that the Commission has “he exceeded his powers”. The Commission considers that it is no longer responsible for the fine of 432 million euros that was also imposed by the European Commission, considering that the operation had been completed before it had been studied by its teams.
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