Action brought on 1 December 2021 – Illumina/Commission
(Case T-755/21)
Language of the case: English
Parties
Applicant: Illumina, Inc. (Wilmington, Delaware, United States) (represented by: D. Beard, Barrister-at-law, and P. Chappatte, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul the Commission’s decision of 29 October 2021 in case COMP/M.10493 taken pursuant to Art. 8(5)(a) of Council Regulation No 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation) 1 (i) finding that Illumina implemented the acquisition of GRAIL in breach of Art. 7 EUMR; (ii) imposing on Illumina and GRAIL the interim measures set out in section 4.7 of the decision; and (iii) requiring Illumina and GRAIL to implement or procure the implementation of such measures immediately, failing which periodic penalties shall be imposed (the Decision); and
order the Commission to pay the costs of the present proceedings.
Pleas in law and main arguments
In support of the action, the applicant relies on three pleas in law.
First plea in law, alleging the Decision is outside Commission competence because Art 7 EUMR did not apply. In particular:
The Commission’s power under Art. 8(5) EUMR to adopt the Decision depended on the concentration having been implemented in contravention of Art. 7.
If Illumina’s challenge in Case T-227/21 to the referral decision is upheld and the referral decisions are annulled, then Illumina was never subject to the obligation under Art. 7 EUMR to suspend implementation of the concentration and the Commission accordingly lacked competence to adopt the Decision or any part of it.
Second plea in law, alleging the provisions in the Decision regarding funding are disproportionate. In particular:
The requirement in the Decision that Illumina provide funding for GRAIL on terms that prevent Illumina from knowing the purpose to which the funds are being put is disproportionate because Illumina has a pressing need for such information to comply with other legal obligations.
The Commission’s concerns could readily be addressed through much less intrusive measures.
Third plea in law, alleging the Decision is disproportionate in its treatment of Illumina’s pre-existing contractual obligations and/or the Commission has failed to provide adequate reasons under Art. 296 TFUE and Art. 41 of the Charter of Fundamental Rights of the European Union. In particular:
The Commission’s reasoning is circular and therefore breaches the duty to state adequately the reasons on which its decision is based.
The Decision disproportionately purports to require Illumina to breach pre-existing contractual obligations to provide information to particular holders of financial instruments.
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1 JO 2004, L 24, p. 1.