The ambitions of the European Union in question

The Commission has just been dealt a serious setback by the Court of Justice of the European Union (CJEU), which issued a ruling on Tuesday 3 September that could limit the ambitions of European antitrust policy. The judges in Luxembourg consider that the Community executive did not have to rule, in the autumn of 2022, on the acquisition, a year earlier, by the American Illumina, the world champion in genetic sequencing machines, of the biotech Grail, which is developing blood tests for the early detection of cancers across the Atlantic.

Not only, the Court explains, does this operation 7 billion dollars (6.3 billion euros) did not contravene any of the rules in force in any of the Member States of the Union, but moreover it was not “no European dimension”since “Grail had no turnover in the EU [Union européenne] nor anywhere else in the world.”

In March 2021, the Commission had nevertheless adopted new rules, which were supposed to allow it to get around these pitfalls in certain cases. They were thus supposed to authorise it to examine acquisitions of innovative start-ups which, until then, had escaped its scope of control and could nevertheless kill competition in a sector of the future.

The legitimacy of the contested operation

When Illumina finalised the acquisition of Grail a few months later, the teams of the Directorate-General for Competition, solicited by France but also by Belgium, Greece and the Netherlands, saw it as an opportunity to use these prerogatives for the first time. In September 2022, the Commission explained that it feared that this acquisition “hinders innovation and reduces supply in the emerging market for blood tests for early detection of cancer”. And in October of that same year, it ordered Illumina to cancel the transaction.

In April 2023, the US authorities, considering that Illumina’s acquisition of Grail distorted competition in the US screening test market, had also challenged the legitimacy of the transaction. In this context, Illumina decided to backtrack and, in June, it introduced the biotech company on the stock market, keeping only 14.5% of its capital.

On 3 September, the American group welcomed the ruling of the Court of Justice of the EU, which in its view confirms that the Commission has “exceeded his powers”He therefore considers that he is no longer liable for the fine of 432 million euros that the Community executive had also imposed on him, on the grounds that the operation had been finalised before being studied by his teams.

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