ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE GENERAL COURT
22 March 2024 (*)
(Intervention – Action for annulment – No interest in the result of the case – Refusal)
In Case T‑591/23,
Illumina, Inc., established in Wilmington, Delaware (United States), represented by F. González Díaz, M. Siragusa, A. Setari and E. Chutrova, lawyers,
applicant,
v
European Commission, represented by P. Berghe, A. Boitos, G. Conte, B. Ernst and N. Khan, acting as Agents,
defendant,
makes the following
Order
1 By its action under Article 263 TFEU, the applicant, Illumina, Inc., seeks the annulment of Decision C(2023) 4623 final of 12 July 2023 (Case M.10483 – Illumina / GRAIL) (‘the contested decision’), by which the European Commission, pursuant to Article 14(2)(b) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), fined Illumina and GRAIL LLC for infringement of the standstill obligation laid down in Article 7 of that regulation in the context of the concentration involving the acquisition by Illumina of sole control of GRAIL (‘the concentration at issue’).
Facts and procedure
2 By document lodged at the Court Registry on 27 December 2023, GRAIL applied to intervene in support of the form of order sought by the applicant.
3 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.
4 By their respective observations lodged at the Court Registry on 26 January 2024, the applicant informed the Court that it was in favour of the application to intervene, while the Commission objected to that application.
Law
5 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, which is applicable to proceedings before the General Court by virtue of the first paragraph of Article 53 of that statute, any person which can establish an interest in the result of a case submitted to the General Court, other than cases between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
6 It is settled case-law that the concept of ‘an interest in the result of the case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, 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 words ‘the result of the case’ refer 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 Justice 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).
7 In that regard, it must, in particular, be ascertained whether the applicant for leave to intervene is directly affected by the contested measure and whether its interest in the result of the case is established. In principle, an interest in the result of the case can be considered to be sufficiently direct only to the extent to which that result is likely to alter the legal position of the person seeking leave to intervene (see order of the President of the Court of Justice of 10 March 2023, Illumina v Commission, C‑611/22 P, EU:C:2023:205, paragraph 7 and the case-law cited).
8 According to the case-law, a party which is granted leave to intervene in a case submitted to the EU judicature may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas. Thus, it is by taking account, inter alia, of the subject matter of the dispute, as it emerges from the forms of order sought by the main parties and the pleas put forward in support of those forms of order, that the interest in the result of the case of a party applying to intervene should be assessed (see order of the President of the Court of Justice of 28 January 2020, VodafoneZiggo Group v Commission, C‑689/19 P, not published, EU:C:2020:50, paragraph 9 and the case-law cited).
9 In support of its application, GRAIL submits that it has an interest in intervening in support of the form of order sought by the applicant since its legal and economic position will be directly affected by the operative part of the future judgment.
10 First, GRAIL argues that, as an undertaking concerned within the meaning of Regulation No 139/2004, it has a specific interest in the result of any dispute concerning the concentration at issue. GRAIL also maintains that, if the Court upholds the applicant’s action, GRAIL can no longer be regarded as having knowingly and intentionally infringed Article 7 of that regulation and the fine imposed on it by the contested decision will be annulled. Furthermore, it will be protected against potential lawsuits filed by third parties alleging damage as a result of that infringement.
11 Secondly, GRAIL states that it actively participated in the administrative procedure which led to the adoption of the contested decision.
12 Thirdly, GRAIL asserts that, as an undertaking concerned, it is particularly well placed to assist the Court in adjudicating on the present case.
13 In that regard, it should be noted that, in the instant case, the contested decision is addressed to both the applicant and GRAIL.
14 Although drafted and published as a single decision, such a decision must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the EU judicature, and remains binding on those addressees which have not applied for its annulment (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 100, and order of the President of the Court of Justice of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, not published, EU:C:2020:364, paragraph 16). If an addressee of a decision decides to bring an action for annulment, the matter to be tried by the EU judicature relates only to those aspects of the decision which concern that addressee, whereas unchallenged aspects concerning other addressees do not, in principle, form part of the matter to be tried by the EU judicature (judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66).
15 Therefore, although the applicant’s action seeks the annulment of the contested decision, that decision can be annulled only in so far as it concerns the applicant. By contrast, since GRAIL did not challenge the contested decision within the time limits laid down by the sixth paragraph of Article 263 TFEU, the aspects of that decision concerning GRAIL have become final in relation to it and cannot be annulled in the context of the present case (see, to that effect, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraphs 83 and 85).
16 That is all the more so in so far as separate and independent parts of the operative part of the contested decision apply to the applicant and GRAIL respectively, namely, as regards the applicant, Articles 1 and 3 of that decision, and, as regards GRAIL, Articles 2 and 4 thereof (see, to that effect, order of the President of the Court of Justice of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, not published, EU:C:2020:364, paragraph 17).
17 It follows that, even if the action brought by the applicant were upheld and, therefore, Articles 1 and 3 of the operative part of the contested decision – by which the Commission found that the applicant had infringed Article 7 of Regulation No 139/2004 and imposed a fine on it – were annulled, that annulment would have no direct legal effect on Articles 2 and 4 of the operative part of that decision, by which the Commission found that GRAIL had infringed Article 7 and imposed a fine on it. Similarly, the annulment of Articles 1 and 3 of the operative part of the contested decision would not prevent third parties from filing lawsuits against GRAIL.
18 Thus, the situation of the applicant and that of GRAIL are different in fact and in law, despite the similarities in the infringements established and the fines imposed on them respectively by the contested decision.
19 In those circumstances, it must be held, as the Commission submits, that the ruling on the form of order sought by the applicant in the present case will have no direct effect on GRAIL’s legal position and that GRAIL can establish only an indirect interest in the result of the case (see, to that effect, order of the President of the Court of Justice of 30 April 2020, Commission v HSBC Holdings and Others, C‑806/19 P, not published, EU:C:2020:364, paragraphs 12 and 15).
20 That finding is not called into question by GRAIL’s arguments.
21 First, the fact that GRAIL is an undertaking concerned within the meaning of Regulation No 139/2004 does not mean that it has a specific interest in the result of any dispute concerning the concentration at issue, even without a change in its legal position within the meaning of the case-law cited in paragraph 7 above.
22 In that regard, it should be noted that, in the case which gave rise to the judgment of 13 July 2022, Illumina v Commission (T‑227/21, EU:T:2022:447), to which GRAIL refers in its arguments, the question arose as to whether GRAIL LLC had lost its status as intervener after its predecessor in law, Grail Inc., ceased to exist and Illumina acquired all of its shares. In paragraph 58 of that judgment, the Court found that, in its capacity as universal successor in title, GRAIL LLC replaced Grail, Inc. as intervener in that case and retained its interest in the result of the case in the same way as that established by its predecessor in law, Grail, Inc. However, that question does not arise here because it was GRAIL LLC which applied for leave to intervene.
23 In addition, it should be pointed out that the decisions which were the subject matter of that case differ from the contested decision in that they subjected the concentration at issue to the scope of Regulation No 139/2004 and, therefore, affected the legal situation of the parties to that concentration (judgment of 13 July 2022, Illumina v Commission, T‑227/21, EU:T:2022:447, paragraphs 68 and 70). Therefore, the fact that GRAIL, as the other party to the concentration at issue, was granted leave to intervene in that case is due to the particular circumstances of that case.
24 Secondly, participation in the administrative procedure is not sufficient, in and of itself, to establish an interest in the result of the case (orders 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).
25 Thirdly, as the Commission submits, the practical benefits that GRAIL claims would derive from its participation, as an undertaking concerned within the meaning of Regulation No 139/2004, in the present proceedings before the Court are not relevant for the purposes of the case-law set out in paragraphs 6 to 8 above.
26 It follows from all of the foregoing that GRAIL has not shown that it has a direct and existing interest in the result of the case within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. Accordingly, its application to intervene must be refused.
27 In those circumstances, there is no need to rule on the applications for confidential treatment of certain information in the originating application and the annexes thereto vis-à-vis GRAIL, lodged at the Court Registry on 26 January 2024 by the applicant and the Commission.
Costs
28 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 with respect to GRAIL, it is appropriate to give a decision on the costs relating to its application to intervene.
29 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 SIXTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application to intervene of GRAIL LLC is refused.
2. GRAIL LLC shall bear its own costs and pay those incurred by the European Commission relating to the application to intervene.
Luxembourg, 22 March 2024.
V. Di Bucci | | M.J. Costeira |