Appeal brought on 30 September 2022 by Grail LLC against the judgment of the General Court (Third Chamber, Extended Composition) delivered on 13 July 2022 in Case T-227/21, Illumina v Commission

(Case C-625/22 P)

Language of the case: English

Parties

Appellant: Grail LLC (represented by: D. Little, Solicitor, J. Ruiz Calzado, J. M. Jiménez Laiglesia, abogados, A. Giraud, avocat, S. Troch, advocaat)

Other parties to the proceedings: Illumina, Inc., European Commission, Hellenic Republic, French Republic, Kingdom of the Netherlands, EFTA Surveillance Authority

Form of order sought

The appellant claims that the Court should:

set aside and annul the judgment under appeal;

annul Commission Decision C(2021) 2847 of 19 April 2021 in Case COMP/M.10188 – Illumina/Grail; related 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; and the related Commission Decision of 11 March 2021 which informed Illumina and GRAIL that the Commission had received a request for referral and had the legal consequence, pursuant to Article 22(4)§2 that Illumina and GRAIL were prohibited from implementing the concentration pursuant to Article 7 EUMR¹ ;

order the Commission to bear its own costs and pay the Appellant’s costs, both for these proceedings and the proceedings before the General Court; and

take any other measures that the Court considers appropriate.

Pleas in law and main arguments

In support of its action, GRAIL relies on three pleas. The first plea focuses on the legal errors included in the contested judgment’s historical, contextual and teleological interpretation of Article 22 EUMR concluding that Member States may make a referral request under that provision irrespective of the scope of their national merger control laws. The second plea focuses on the legal errors made by the General Court in its judgment by (i) not deriving any legal consequence from the correct finding that the Commission took an “unreasonable period of time” to send the invitation letter to all Member States concerning the concentration relating to the acquisition by Illumina of sole control over GRAIL, and (ii) in the assessment leading to the conclusion that the Commission did not violate the Parties’ right of defence during the procedure leading to the adoption of the invitation letter and eventually to the Commission Decision C(2021) 2847. Finally, the third plea focuses on the legal errors in the contested judgment’s assessment of the legitimate expectations and legal certainty arising from the unconditional and precise assurances made by the Commissioner for Competition / Executive Vice President of the Commission regarding when and how the Commission’s reappraisal of the application of Article 22 EUMR would be implemented.

____________

¹ 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).