On 29 October, the European Commission adopted ‘interim measures’ to restore and maintain the conditions of effective competition following Illumina’s early acquisition of GRAIL, which is in breach of the standstill obligation under the EU Merger Regulation.
Executive Vice-President Margrethe Vestager, in charge of competition policy, said that Illumina and GRAIL had “put at risk the effectiveness of our ex-ante merger control enforcement. This is why we are adopting today measures aiming to prevent harm to competition in the interim period until our final decision on the substance of the case is taken”.
On 20 September, the Commission sent a Statement of Objections to the two companies informing them of the interim measures it intended to adopt (see EUROPE 12794/15).
This is the first time that the Commission has adopted interim measures following an unprecedented early implementation of a concentration:
- GRAIL shall be kept separate from Illumina and be run by (an) independent Hold Separate Manager(s), exclusively in the interest of GRAIL (and not of Illumina);
- Illumina and GRAIL prohibited from sharing confidential business information, except where the disclosure is required to comply with the law;
- Illumina has the obligation to finance additional funds necessary for the operation and development of GRAIL ;
- All business interactions between the parties shall be undertaken at arm’s length, in line with industry practice, hence without unduly favouring GRAIL to the detriment of its competitors;
- GRAIL shall actively work on alternative options to the transaction to prepare for the possible scenario in which the deal would have to be undone in case the Commission were to declare the transaction incompatible with the internal market.
The measures are legally binding on both Illumina and GRAIL. They will be applicable during an transitional period, pending the final outcome of the Commission’s in-depth merger investigation.
Link to the case: https://bit.ly/3EG4rbc (Original version in French by Lionel Changeur)