ORDER OF THE PRESIDENT
OF THE THIRD CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
6 October 2021 (*)
(Competition – Concentrations – Pharmaceutical industry market – Genetic sequencing systems – Acquisition by Illumina of sole control of GRAIL – Request to review a concentration addressed to the Commission by the competition authority of a Member State which has no initial jurisdiction to examine the transaction in question – Commission decision to examine the concentration – Commission decision permitting other Member States to join the initial referral request – Article 22 of Regulation (EC) No 139/2004 – Action for annulment – Intervention – Association of undertakings not active in the sector concerned – Lack of interest in the result of the case)
In Case T‑227/21,
Illumina, Inc., established in Wilmington, Delaware (United States), represented by D. Beard QC, and P. Chappatte, lawyer,
applicant,
supported by
Grail LLC formerly Grail, Inc., established in Menlo Park, California (United States), represented by D. Little, Solicitor, and J. Ruiz Calzado, J.M. Jiménez-Laiglesia Oñate and A. Giraud, lawyers,
intervener,
v
European Commission, represented by N. Khan, G. Conte and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
EFTA Surveillance Authority, represented by C. Howdle, M. Sánchez Rydelski and M.-M. Joséphidès and C. Simpson, acting as Agents,
by
The Hellenic Republic, represented by K. Boskovits, acting as Agent,
by
The French Republic, represented by T. Stéhelin, P. Dodeller, J.-L. Carré and E. Leclerc, acting as Agents,
and by
The Kingdom of the Netherlands, represented by M. Bulterman and P. Huurnink, acting as Agents,
interveners,
APPLICATION under Article 263 TFEU seeking the annulment, first, of Commission Decision C(2021) 2847 final of 19 April 2021, accepting the request of the French competition authority to examine the concentration operation concerning the acquisition by Illumina, Inc. of sole control of GRAIL, Inc. (Case COMP/M.10188 – Illumina/Grail), second, of Commission Decisions C(2021) 2848 final, C(2021) 2849 final, C(2021) 2851 final, C(2021) 2854 final and C(2021) 2855 final of 19 April 2021, accepting the requests of the Greek, Belgian, Norwegian, Icelandic and Netherlands’ competition authorities to join that referral request, and third, of the Commission letter of 11 March 2021 informing Illumina and GRAIL of that referral request,
makes the following
Order
Background to the dispute
1 The applicant, Illumina, Inc., supplies sequencing- and array-based solutions for genetic and genomic analysis.
2 On 20 September 2020, Illumina entered into an agreement and plan of merger to acquire sole control of GRAIL LLC (named, at the time, GRAIL, Inc., together with Illumina, ‘the undertakings concerned’), which develops blood tests for the early detection of cancers and in which it already held a 14.5% stake (‘the concentration at issue’).
3 In the absence of relevant turnover figures, in particular given the fact that GRAIL did not generate any revenue in any EU Member State or elsewhere in the world, the concentration at issue did not have an EU dimension within the meaning of Article 1 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) and therefore did not have to be notified to the Commission pursuant to Article 4(1) of that regulation. Nor did it require notification in any of the EU Member States or the States party to the EEA Agreement, nor did it fall within the jurisdiction of their national merger control systems.
4 On 9 March 2021 the French competition authority requested the Commission, pursuant to Article 22(1) of Regulation 139/2004, to examine the concentration at issue (‘the referral request’).
5 On 10 March 2021, pursuant to Article 22(2) of Regulation No 139/2004, the Commission informed the competition authorities of the other Member States and the EFTA Surveillance Authority of the referral request. On 11 March 2021 the Commission also informed the undertakings concerned of that request, reminding them of the suspension obligation provided for in Article 7, read in conjunction with the second sentence of Article 22(4) of Regulation No 139/2004 (‘the suspension letter’).
6 By letters of 24, 26 and 31 March 2021, the competition authorities of the Hellenic Republic, the Republic of Iceland, the Kingdom of Belgium, the Kingdom of Norway and the Kingdom of the Netherlands respectively requested that they be joined to the referral request, in accordance with Article 22(2) of Regulation No 139/2004 (‘the joinder requests’).
7 By decision of 19 April 2021, the Commission accepted the applicant’s request (‘the contested decision’). By decisions of the same date, the Commission also accepted the joinder requests (‘the Iceland decision’, ‘the Belgium decision’, ‘the Norway decision’, ‘the Netherlands decision’ and ‘the Greece decision’ respectively and, together with the contested decision, ‘the contested decisions’).
8 In the contested decisions, the Commission took the view that, first, the referral request and the joinder requests were submitted within the time limit laid down in Article 22(1) and (2) of Regulation No 139/2004 respectively (paragraphs 20 and 29 of the contested decision; paragraphs 21 and 22 of the Iceland, Belgium, Norway and the Netherlands decisions; paragraphs 16 and 17 of the Greece decision); second, the concentration was capable of affecting trade between Member States (paragraphs 39 to 45 of the contested decision; paragraphs 33 to 39 of the Iceland, Belgium, Norway and the Netherlands decisions; paragraphs 28 to 34 of the Greece decision); third, on the basis of the evidence available to it, the concentration at issue threatened to affect significantly competition in France, Greece, Iceland, Belgium, Norway and the Netherlands, respectively, as part of the EEA (paragraphs 51 and 80 of the contested decision; paragraphs 50 and 79 of the Netherlands decision; paragraphs 49 and 78 of the Belgium decision; paragraphs 41 and 70 of the Greece decision; paragraphs 46 and 75 of the Norway and Iceland decisions), and fourth, the concentration at issue therefore met the criteria for a referral under Article 22 of Regulation No 139/2004 (paragraph 109 of the contested decision; paragraph 108 of the Netherlands decision; paragraph 107 of the Belgium decision; paragraph 99 of the Greece decision; paragraph 104 of the Norway and Iceland decisions).
Procedure
9 By application lodged at the Registry of the General Court on 28 April 2021, the applicant brought an action for annulment of the contested decisions and the suspension letter.
10 By separate document lodged at the Court Registry on the same date, the applicant requested that the present action be adjudicated under an expedited procedure in accordance with Articles 151 and 152 of the Rules of Procedure of the General Court. By decision of 2 June 2021, the Court (Third Chamber) granted that request.
11 By document lodged at the Court Registry on 7 June 2021, GRAIL sought leave to intervene in the present case in support of the form of order sought by the Commission. By order of 2 July 2021, the President of the Third Chamber (Extended Composition) of the General Court granted such leave to intervene.
12 Acting on a proposal from the Third Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.
13 By documents lodged at the Court Registry on 22 June, 6 July and 21 July 2021 respectively, the Kingdom of the Netherlands, the French Republic and the Hellenic Republic sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decisions of 10 July, 22 July and 6 August 2021 respectively, the President of the Third Chamber (Extended Composition) of the General Court granted such leave to intervene.
14 By document lodged at the Court Registry on 29 July 2021, the EFTA Surveillance Authority sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By order of 25 August 2021, the President of the Third Chamber (Extended Composition) of the General Court granted such leave to intervene.
15 By document lodged at the Court Registry on 13 August 2021, the Computer & Communications Industry Association (‘the CCIA’) sought leave to intervene in the present proceedings in support of the form of order sought by the applicant.
16 That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
17 By document lodged at the Court Registry on 27 August 2021, the applicant informed the Court that it welcomed the application to intervene.
18 By document lodged at the Court Registry on 31 August 2021, the Commission raised objections to the application to intervene.
Law
19 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which applies to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute, any person establishing an interest in the result of a case submitted to the General Court may intervene in that case, except in relation to cases between Member States, between EU institutions or between Member States, on the one hand, and EU institutions, on the other hand.
20 According to settled case-law, the concept of an ‘interest in the result of the case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the case and be understood as meaning a direct and existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The term ‘the result of the case’ refers to the final decision sought, as set out in the operative part of the future judgment (see order of the Vice-President of the Court of 24 June 2021, ratiopharm and Others v Commission, C‑220/21 P(I), not published, EU:C:2021:521, paragraph 18 and the case-law cited).
21 In that context, it is necessary to draw a clear distinction between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that specifically referred to in that act. In principle, an interest in the result of the case can be regarded as sufficiently direct only in so far as that result is such as to change the legal position of the applicant seeking leave to intervene (see order of 6 May 2019, KPN v Commission, T-691/18, not published, EU:T:2019:321, paragraphs 19 and 20 and the case-law cited).
22 However, an economic operator does not have a direct interest to intervene in a case to which another economic operator in a similar situation is a party and which could give rise to a judgment whose grounds might influence the manner in which the EU institution at issue would be likely to assess the situation, which, moreover, is different, of the applicant for leave to intervene (see, to that effect, order of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 21).
23 As regards associations, the EU Courts permit intervention by representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members (order of the President of the Court of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66; orders of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9; and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
24 More specifically, an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 18; of 17 February 2016, Allergopharma v Commission, T‑354/15, not published, EU:T:2016:121, paragraph 9; and of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 12).
25 It is in the light of those principles that the present application to intervene must be examined.
26 In support of that claim, the CCIA argues, first, that it represents an appreciable number of undertakings active in the digital sector, second, that its primary objective is to represent and protect the interests of its members, including before the EU courts, and, third, that the present dispute raises essential questions of law that are liable to affect the interests of its members and the functioning of the digital sector.
27 As regards the latter argument, the CCIA submits that it is necessary for the Court to address the novel question whether, under Article 22 of Regulation No 139/2004, the Commission has jurisdiction to accept a request for referral of a concentration which originates from a Member State with a national merger control system, where the concentration concerned does not fall within the scope of that national system. The CCIA argues that the Commission has, by the interpretation applied in the contested decisions and the suspension letter, answered that question in the affirmative, the implications of which question go well beyond the specificities of the concentration at issue and inevitably affect the interests of the members of the CCIA.
28 In particular, the CCIA maintains that it appears from the Commission’s guidance on the application of the referral mechanism set out in Article 22 of [Regulation No 139/2004] to certain categories of cases (OJ 2021 C 113, p. 1; ‘the 2021 guidance’) that that interpretation is targeted in particular at transactions in the digital sector which fall below the jurisdictional thresholds set out in Regulation No 139/2004 and the national merger control systems. Thus, the parties to a concentration would no longer be able to rely on those thresholds and any acquisition in the digital sector would be subject to significant legal uncertainty. The CCIA is of the view that, if the applicant’s action, in particular its first plea, were to be upheld, the Commission could be prevented from accepting referral requests concerning concentrations below the national thresholds. Even if that action were to be dismissed, the General Court could provide interpretative guidance as to how Article 22 of Regulation No 139/2004 ought to be complied with in other proceedings.
29 The CCIA adds, in particular, that the interest of its members in the outcome of the present proceedings is further illustrated by the fact that it submitted detailed observations on the contested decision in the context of the administrative procedure. In addition, the fact that its members are not competitors of Illumina or GRAIL on the medical devices market cannot preclude that interest since the case-law has recognised the standing of representative associations active in fields other than those targeted by the contested EU measure.
30 Those arguments are not sufficient to grant leave to intervene in relation to the present application to intervene.
31 In the first place, the CCIA fails to establish that its interests or those of its members would be affected by the result of the present case within the meaning of the case-law cited in paragraphs 20 and 21 above.
32 It should be recalled that, by the form of order sought, the applicant seeks the annulment of the contested decisions and the suspension letter (see paragraph 9 above). By those measures, the Commission, first, accepted the referral and the joinder requests, finding that the concentration at issue met the criteria for a referral under Article 22 of Regulation No 139/2004 (see paragraph 8 above) and, second, observed that that concentration was subject to the suspension obligation laid down in Article 7, read in conjunction with the second sentence of Article 22(4) of that regulation (see paragraph 5 above).
33 However, given that neither the CCIA nor its members, as undertakings active in the digital sector, are affected by the concentration at issue, and do not even claim to be so affected, the operative part of the forthcoming judgment cannot have any direct and existing effects on their legal position. More specifically, even if the contested decisions and the suspension letter were to be annulled because of the Commission having erroneously interpreted Article 22 of Regulation No 139/2004, it would not be possible to find that such an annulment would have a direct and existing effect on the legal position of the CCIA and its members.
34 In addition, as suggested by the Commission, in so far as the CCIA challenges the interpretation of that provision, the CCIA is relying solely on a certain interest in supporting the pleas in law or arguments raised by the applicant and not on a direct and existing interest in the ruling on the form of order sought in its application as such. The fact that the present case could give rise to a judgment, the reasoning of which would influence the way in which the Commission is likely to assess a concentration in the digital sector in the future under Article 22 of Regulation No 139/2004 is, in accordance with the case-law cited in paragraph 22 above, not sufficient to find such a direct and existing interest. Therefore, the interest relied upon by the CCIA is an indirect and hypothetical interest resulting from the alleged similarity of the situation of undertakings active in that sector with that of the undertakings concerned.
35 Furthermore, if the Commission were to accept, under Article 22 of Regulation No 139/2004, the referral of a concentration in the digital sector, to which a CCIA member is a party, the CCIA could put forward its arguments in the action for annulment that it would be able to bring before the Court against such a decision (see, that effect and by analogy, order of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 25).
36 In the second place, the CCIA has not established that it, in accordance with the case-law cited in paragraph 24 above, represents a significant number of undertakings active in the sector concerned, that the present case may raise questions of principle affecting the functioning of the sector concerned and that the interests of its members may be affected significantly by the forthcoming judgment.
37 First, it should be noted that, as the Commission correctly points out, the concentration at issue concerns the sector of blood-based cancer testing using next-generation genomic sequencing (NGS) (paragraphs 31 and 33 of the contested decision; paragraphs 24 and 26 of the Netherlands, Belgium, Norway and Iceland decisions; paragraphs 19 and 21 of the Greece decision), and, under a broader definition, the pharmaceutical sector and/or the medical devices sector.
38 The CCIA does not claim to represent undertakings in the pharmaceutical or medical devices sector, but states that it is a non-profit association representing a wide range of large and small companies in the computer, internet and telecommunications sectors. Similarly, the General Court found in the order of 23 September 2019, Google and Alphabet v Commission (T‑604/18, not published, EU:T:2019:743, paragraph 63), that the CCIA’s objective is to promote the interests of the computer and communications industries and of its members. It is therefore common ground that the CCIA does not constitute an association representing a significant number of operators in the sector concerned by the contested decisions and the suspension letter.
39 Second, while it is true that the present case raises novel questions regarding the interpretation of the scope of Article 22 of Regulation No 139/2004, such questions, important as they may be, remain necessarily connected with the object of the case, which, as set out in paragraph 32 above, seeks the annulment of the contested decisions and the suspension letter (see, to that effect and by analogy, order of 15 December 2017, Apple Sales International and Apple Operations Europe v Commission, T‑892/16, not published, EU:T:2017:926, paragraph 23). Furthermore, it should be recalled that the lawfulness of the 2021 guidance, to which the CCI refers to justify the functioning of the digital sector being affected (see paragraph 28 above) is not the subject matter of the present case.
40 Third, it is clear that the forthcoming judgment does not affect the interests of the members of the CCIA any more than those of any other undertaking potentially concerned by a future referral of a concentration to the Commission under Article 22 of Regulation No 139/2004. If the interpretation of that provision, as suggested by the Commission in the contested decisions and the suspension letter, is correct, it would apply in the same way to all economic sectors.
41 In that regard, it should be recalled that, although a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure, it is not, however, intended to permit the multiplication of interventions of non-representative associations which have only an indirect and hypothetical interest in the result of the case (see, to that effect, order of 25 June 2015, The Goldman Sachs Group v Commission, T‑419/14, not published, EU:T:2015:523, paragraph 28 and the case-law cited).
42 In addition, if the Court were to accept that an association representing undertakings in the digital sector has an interest in intervening in a case such as the present, this would have the consequence that that association could intervene in the majority of proceedings before the Court involving the interpretation of a provision of EU competition law, since most provisions in that field potentially apply to the digital sector (see, to that effect and by analogy, order of 25 June 2015, The Goldman Sachs Group v Commission, T‑419/14, not published, EU:T:2015:523, paragraph 29).
43 Consequently, in view of the above, it must be concluded that, irrespective of the question whether the CCIA constitutes a representative association and whether its objects include the protection of the interests of its members, its application to intervene must be rejected.
44 That conclusion is not called into question by the fact that the CCIA participated in the administrative procedure since such participation is not sufficient, in and of itself, to establish that it has an interest in the result of the case (see, to that effect, orders of 7 December 2018, Google and Alphabet v Commission, T‑612/17, not published, EU:T:2018:982, paragraph 15; of 6 May 2019, KPN v Commission, T‑691/18, not published, EU:T:2019:321, paragraph 28; and of 7 May 2020, Canon v Commission, T‑609/19, not published, EU:T:2020:203, paragraph 24).
45 As regards the cases which gave rise to the orders of 28 January 2016, Alcogroup and Alcodis v Commission (T‑274/15, not published, EU:T:2016:97), and of 26 February 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission (T‑125/03, not published, EU:T:2007:57), as relied on by the CCIA, it should be noted, as the Commission does, that those cases are not comparable to the present case. Those cases concerned points of principle relating to the confidentiality of communications between a lawyer and his client, the interpretation of which could therefore affect, to a significant extent, the functioning of the legal profession. Similarly, in so far as the legal question raised in the case which gave rise to the order of the President of the Court of 5 July 2018, Uniwersytet Wrocławski and Poland v REA (C‑515/17 P and C‑561/17 P, not published, EU:C:2018:553) concerned compliance with the condition of independence required for a legal adviser to represent a party before the EU courts where that legal adviser is connected to that party by a contract governed by civil law for services provided as an external teacher, it was a point of principle likely to affect the interests of an association representing legal advisers and trainees. By contrast, in the present case, the contested decisions and the suspension letter affect the interests of undertakings active in the digital sector only indirectly and hypothetically (see paragraphs 33, 34 and 37 to 40 above).
Costs
46 Under Article 133 of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. Since the present order closes the proceedings as far as the CCIA is concerned, it is appropriate to make a ruling on the costs relating to its application.
47 Under Article 134(1) of the Rules of Procedure, read in conjunction with Article 144(6) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for an order against the applicant for leave to intervene and the latter has been unsuccessful, it must be ordered to pay, in addition to its own costs, those incurred by the Commission.
On those grounds,
THE PRESIDENT OF THE THIRD CHAMBER (EXTENDED COMPOSITION) OF THE GENERAL COURT
hereby orders:
1. The Computer & Communications Industry Association’s application to intervene is dismissed.
2. The Computer & Communications Industry Association shall bear its own costs and pay those incurred by the European Commission.
Luxembourg, 6 October 2021.