Following the prohibition of Illumina’s acquisition of GRAIL (see EUROPE 13015/1), on Thursday 12 October the European Commission adopted measures to restore the pre-merger situation and require Illumina to unwind its acquisition of GRAIL.
The Commission prohibited Illumina's acquisition of GRAIL on 6 September 2022, fearing that the merger would reduce choice in the emerging market for blood tests to detect cancers at an early stage.
Illumina and GRAIL had seriously breached European merger control rules by completing their transaction while the Commission’s in-depth investigation was still ongoing. Both companies were heavily fined on 12 July 2023 (see EUROPE B1322124).
Illumina has a choice of disposal methods (commercial sale, capital markets transaction, etc.), but must comply with a number of conditions.
Firstly, the sale should result in GRAIL restoring its independence from Illumina to the same level it enjoyed prior to the acquisition.
Secondly, after the sale, GRAIL will need to be as viable and competitive as before its acquisition by Illumina in order to restore the competitive environment.
Finally, the sale must be completed as quickly as possible and with sufficient certainty.
In addition, the interim measures, replacing the interim measures adopted on 28 October 2022 and currently in force, will ensure that Illumina and GRAIL remain separate until the transaction is unwound and also require Illumina to preserve GRAIL’s viability by continuing to fund its cash requirements.
In the event of non-compliance with the measures to restore the previous situation, the Commission will be able to impose penalty payments of up to 5% of the company’s total average daily turnover.
Failure to comply with the interim measures could result in fines of up to 10% of the company’s annual worldwide turnover.
Link to case: https://aeur.eu/f/910 (Original version in French by Émilie Vanderhulst)