The European Commission sent a statement of objections to Illumina and GRAIL on Monday 5 December, informing them of the measures it intends to take under the EU Merger Regulation following its decision to prohibit Illumina’s already completed acquisition of GRAIL.
On 6 September 2022, the European Commission prohibited Illumina’s acquisition of GRAIL (see EUROPE 13015/1).
Illumina must unwind the acquisition to give full effect to the Commission’s decision to prohibit the transaction.
In its communication, the Commission states: - the divestment measures that Illumina must implement to unwind the GRAIL transaction; - the interim measures that Illumina and GRAIL must comply with until Illumina has dissolved the concentration.
Divestment measures should be based on these principles: - the dissolution of the operation should result in GRAIL’s restoration of its independence from Illumina; - after the divestment, GRAIL must be as viable and competitive as it was before its acquisition by Illumina, so that the innovation race between GRAIL and its competitors can continue as before; - the transfer must be able to proceed without delay and with sufficient certainty, so that the pre-acquisition situation can be quickly restored.
The interim measures will ensure that Illumina and GRAIL remain separate until the transaction is unwound in order to prevent the integration of GRAIL intoIllumina’s business and to prevent the irreparable harm to competition that would ensue. These measures also require Illumina to maintain the viability of GRAIL.
After hearing the parties, the Commission can make binding the divestment and interim measures (Illumina and GRAIL would be legally bound to comply with them).
In the event of non-compliance, the Commission is empowered to impose a penalty payment. In addition, companies that fail to comply with the interim measures can be fined up to 10% of annual worldwide turnover, according to Article 14 of the EU Merger Regulation. (Original version in French by Lionel Changeur)