ORDER OF THE PRESIDENT OF THE COURT
10 March 2023 (*)
(Appeal – Intervention – Second paragraph of Article 40 of the Statute of the Court of Justice of the European Union – Interest in the result of the case – Competition – Concentrations – Pharmaceutical industry market – European Commission decision to examine a merger referred by the competition authority of a Member State – Commission decision accepting that the initial referral request be joined by other Member States – An association of undertakings active in the relevant sector with the purpose of defending the interests of its members – Allowed)
In Case C‑611/22 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 September 2022,
Illumina Inc., established in San Diego (United States), represented by D. Beard, Barrister-at-Law, P. Chappatte, avocat, F. González Díaz, abogado, J. Holmes, Barrister, G.C. Rizza, M. Siragusa, avvocati, and L. Wright, advocate,
applicant,
the other parties to the proceedings being:
European Commission, represented by G. Conte, N. Khan and C. Urraca Caviedes, acting as Agents,
defendant at first instance,
Grail LLC, established in Menlo Park, (United States), represented by A. Giraud, avocat, J.M. Jiménez-Laiglesia Oñate, abogado, D. Little, Solicitor, J. Ruiz Calzado, abogado, and S. Troch, advocaat,
Hellenic Republic,
French Republic, represented by T. Stéhelin and N. Vincent, acting as Agents,
Kingdom of the Netherlands, represented by M.K. Bulterman and P.P. Huurnink, acting as Agents,
EFTA Surveillance Authority, represented by C. Simpson, M. Sánchez Rydelski and M.-M. Joséphidès, acting as Agents,
interveners at first instance,
THE PRESIDENT OF THE COURT
having regard to the proposal of N. Wahl, Judge-Rapporteur,
after hearing the Advocate General, N. Emiliou,
makes the following
Order
1 By its appeal, Illumina Inc. seeks annulment of the judgment of the General Court of the European Union of 13 July 2022, Illumina v Commission (T‑227/21, ‘the judgment under appeal’, EU:T:2022:447), by which the General Court dismissed the action seeking annulment of, first, Commission Decision C(2021) 2847 final of 19 April 2021 granting the request of the French Autorité de la concurrence (Competition Authority) to examine the concentration involving the acquisition by Illumina, Inc. of sole control of Grail, Inc (Case COMP/M.10188 – Illumina/Grail), second, 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, granting the requests of the Greek, Belgian, Norwegian, Icelandic and Dutch competition authorities to join that request for referral and, third, the Commission’s letter of 11 March 2021 informing Illumina and Grail of that request for referral.
2 By a document lodged at the Registry of the Court of Justice on 21 December 2022, Biocom California, which is a professional association for advocacy in relation to undertakings in the life sciences sector, comprising a significant number of members, applied for leave to intervene in the present case in support of the form of order sought by Illumina, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union and Articles 130 and 190 of the Rules of Procedure of the Court of Justice.
3 Following service on the parties by the Registrar of the Court of Justice, in accordance with Article 131(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules, of the application to intervene lodged by Biocom California, Illumina, Grail and the Commission submitted observations on that application within the prescribed period.
4 While Illumina and Grail indicated that they supported Biocom California’s application to intervene, the Commission contended that the application ought to be rejected.
The application to intervene
5 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States, of the one part, and such institutions, of the other part, may intervene in that case.
6 According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined in the light of the precise subject matter of the dispute and be understood as meaning a direct, 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 raised. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment (order of the President of the Court of 7 February 2019, Bayer CropScience and Bayer v Commission, C‑499/18 P, not published, EU:C:2019:107, paragraph 5 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 (order of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2019:174, paragraph 8 and the case-law cited).
8 However, it is also settled case-law that a representative professional association, whose objective is to protect the interests of its members may be granted leave to intervene where the case raises questions of principle which are liable to affect those interests (orders of the President of the Court of 1 October 2019, Commission v Ville de Paris and Others, C‑179/19 P, not published, EU:C:2019:836, paragraph 7, and of 1 September 2022, Google and Alphabet v Commission, C‑48/22 P, not published, EU:C:2022:667, paragraph 7 and the case-law cited). Therefore, the requirement that such an association has a direct, existing interest in the result of a case must be found to be fulfilled where that association establishes that it is in such a situation, irrespective of whether the result of the case is likely to alter the legal position of the association as such.
9 Indeed, such a broad interpretation of the right to intervene in favour of representative professional associations is intended to facilitate assessment of the context of such cases submitted to the EU Courts while avoiding multiple individual interventions which would compromise the efficiency and the proper course of the procedure (see, to that effect, orders 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, and of 1 October 2019, Commission v Ville de Paris and Others, C‑179/19 P, not published, EU:C:2019:836, paragraph 12). However, unlike natural and legal persons acting on their own behalf, representative professional associations are likely to apply for leave to intervene in a case before the Court not in order to defend individual interests but rather to defend the collective interests of their members. Intervention by such an association offers an overall perspective of those collective interests, which are affected by a question of principle on which the result of the case depends, and is, accordingly, of such a nature as to enable the Court better to assess the context in which a case is submitted to it.
10 Thus, in accordance with the case-law referred to in paragraph 8 of the present order and, more specifically, as is apparent from the case-law of the General Court (see order of the President of the Third Chamber (Extended Composition) of the General Court of 6 October 2021, Illumina v Commission, T‑227/21, not published, EU:T:2021:672, paragraph 24 and the case-law cited), an association may be granted leave to intervene in a case if, first, it represents a significant number of undertakings active in the sector concerned, if, second, its objects include the protection of the interests of its members, if, third, the case may raise questions of principle affecting the functioning of the sector concerned and if, therefore, fourth, the interests of its members may be affected significantly by the forthcoming judgment.
11 The substance of the application to intervene submitted by Biocom California must be assessed in the light of those conditions, whose correctness is confirmed.
12 In the present case, it should be noted, in the first place, that that association represents a significant number of undertakings active in the pharmaceutical and medical devices sector. The concentration at issue in the present case concerns the sector of blood tests for the early detection of cancers using next-generation genomic sequencing and, more broadly, the pharmaceutical and/or medical devices sector.
13 In that regard, Biocom California stated in its application to intervene that it has more than 1 365 members active in the pharmaceutical and medical device sector, including 155 companies specialising in genomics and diagnostics and many undertakings involved in blood-based cancer screening tests using next-generation genomic sequencing. Biocom California therefore represents a significant number of undertakings active in the economic sector concerned by the concentration at issue in the present case and can, therefore, be regarded as a representative professional association within the meaning found in paragraph 10 of the present order.
14 In the second place, it is apparent from Biocom California’s application to intervene and from the documents annexed to it that Biocom California has legal personality and that its by-laws authorise it to ‘undertake any lawful acts necessary or desirable to carry out its specific purpose’, namely to advance, foster and encourage the life sciences industry. The by-laws of Biocom California, which indicate that its purpose is the protection of its members, therefore allow it to bring legal actions to defend its members’ interests.
15 In the third place, it should be stated that, in the present case, the Court is likely, inter alia, to give a ruling on whether, under Article 22 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), the Commission has competence to accept a request for referral of a merger case from a Member State with a national system for the control of concentrations, where the concentration concerned does not fall within the scope of that national system.
16 As Biocom California has submitted, this case therefore raises a question of principle which could be critical to the life sciences sector, and in particular to pharmaceutical undertakings, including the Biocom California members involved in that sector. Indeed, as is apparent 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 pharmaceutical sector is one of the specific economic sectors in respect of which the Commission intends to encourage and accept more referrals from Member States’ competition authorities under Article 22 of that regulation. Mergers in the pharmaceutical sector which fall below the jurisdictional thresholds set out in that regulation and the national systems for the control of concentrations are therefore all the more likely to be closely monitored by those authorities and to be referred under that provision if the Court confirms the interpretation adopted in the judgment under appeal.
17 The fact that the present case will result in a judgment that will have a particular impact on the way in which certain concentrations in the life sciences sector are likely to be handled under Article 22 of Regulation No 139/2004 in the future is sufficient to hold that the case raises questions of principle affecting the functioning of the specific sector in which certain of Biocom California’s members are active.
18 In the same way, it must be observed, in the fourth place, that the answers to the questions of principle raised in the present case are of interest to Biocom California’s members. In particular, as Biocom California has pointed out, the Commission’s interpretation of Article 22 of Regulation No 139/2004 is more likely to apply to mergers of non-European undertakings, and in particular to mergers of undertakings active in sectors such as life sciences, which are characterised by the presence on the market of a large number of enterprises in the start-up phase. Indeed, the companies involved in those operations are generally more likely, both in view of their place of establishment and because they have limited turnover in the European Union, to find themselves below the turnover thresholds for the notification of such operations, both at European and national level.
19 In that regard, Biocom California has submitted that it represents primarily life sciences undertakings established in the United States, and more specifically in California, including undertakings in the start-up phase seeking funding and large undertakings seeking commercial opportunities to invest in such start-ups.
20 It follows from all those considerations that, in view of the broad interpretation of the right to intervene of professional associations representing undertakings in the sector concerned by a case, Biocom California must be regarded as having established to the requisite legal standard, in the present case, that it has a direct, existing interest in the outcome of Illumina’s form of order seeking annulment of the judgment under appeal and, consequently, an interest in the result of the case submitted to the Court in the context of the present appeal, as provided for in the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union.
21 Biocom California is therefore granted leave to intervene in support of the form of order sought by Illumina, in accordance with that provision and Article 131(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules.
The intervener’s procedural rights
22 Since the application to intervene has been allowed, pursuant to Article 131(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 190(1) of those rules, Biocom California is to receive a copy of every procedural document served on the parties, unless any party requests that certain documents be excluded from such communication.
23 As that application was made within the one-month period laid down in Article 190(2) of the Rules of Procedure, Biocom California will be permitted, in accordance with Article 132(1) of those rules, applicable to appeal proceedings under Article 190(1) of those rules, to submit a statement in intervention within one month after the communication referred to in the preceding paragraph.
24 Lastly, Biocom California will be permitted to submit oral observations if a hearing is organised.
Costs
25 Under Article 137 of the Rules of Procedure, applicable to appeal proceedings virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.
26 In the present case, since Biocom California’s application to intervene has been granted, the costs relating to its intervention must be reserved.
On those grounds, the President of the Court hereby orders:
1. Biocom California is granted leave to intervene in Case C‑611/22 P in support of the form of order sought by Illumina Inc.
2. A copy of every procedural document shall be served on Biocom California by the Registrar.
3. Biocom California has one month from the date of service referred to in point 2 of this operative part to submit a statement in intervention.
4. The costs relating to the intervention by Biocom California are reserved.
Luxembourg, 10 March 2023.
A. Calot Escobar | | K. Lenaerts |