Action brought on 11 January 2022 – Grail v Commission

(Case T-23/22)

Language of the case: English

Parties

Applicant: Grail LLC (Menlo Park, California, United States) (represented by: D. Little, Solicitor, J. Ruiz Calzado, J. M. Jiménez-Laiglesia Oñate and A. Giraud, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

Annul the Commission’s Decision of 29 October 2021 adopting interim measures under Article 8(5)(a) of Regulation 139/2004 (“EUMR”) in Case COMP/M.10493 – Illumina / GRAIL;

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

First plea in law, contesting the jurisdiction of the Commission to adopt the Decision. The Commission has no competence to adopt a decision under Article 8(5)(a) EUMR, if the Court rules in Case T-227/21 that the six referral decisions adopted by the Commission on 19 April 2021 pursuant to Article 22(3) EUMR were unlawful.

Second plea in law, alleging errors of law and facts committed by the Commission in the interpretation, application, and reasoning of the legal requirements for adoption of the Decision under Article 8(5)(a) EUMR.

The Decision is wrong in ignoring that the Hold-Separate Commitments adopted and notified by Illumina to the Commission after Illumina’s acquisition of GRAIL Inc.’s shares prevented the Parties from implementing the concentration within the meaning of Article 7 EUMR.

The Decision contains no meaningful discussion of the conditions of competition existing at the time of its adoption and fails to demonstrate how Illumina’s acquisition of GRAIL Inc.’s shares had reduced effective competition or would reduce effective competition before the Commission could adopt a final decision on the substance.

The Decision fails to identify any urgency that would justify the adoption of interim measures since nothing material in terms of effects on competition in the affected markets could happen during the few months between the adoption of the Decision and the adoption of the substantive decision on the concentration.

The Decision is vitiated by an error of law in assuming that under Article 8(5)(a) EUMR the Commission is entitled to adopt interim measures with a view to ensuring the effectiveness of a hypothetical future decision under Article 8(4) EUMR.

The imposition of a particular obligation on GRAIL is incompatible with Article 8(5)(a) EUMR; it is not necessary or proportionate.

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