Brussels, 28 October 2022
The European Commission has renewed and adjusted, under the EU Merger Regulation, the interim measures that ensure that Illumina and GRAIL remain separate following the Commission’s decision to block the merger. The interim measures aim to prevent the potentially irreparable detrimental impact of the transaction on competition, as well as possible irreversible integration of the merging parties. On 6 September 2022, the Commission blocked Illumina’s acquisition of GRAIL over concerns that the merger would have stifled innovation and reduced choice in the emerging market for blood-based early cancer detection tests. Pending the Commission’s review, in August 2021, Illumina completed its acquisition of GRAIL. As a result, on 29 October 2021 the Commission put in place interim measures to restore and maintain the conditions of effective competition for the duration of 12 months, namely ordering to hold GRAIL separate from Illumina. Today’s decision renews and adjusts the existing interim measures which provide that: (i) GRAIL shall be kept separate from Illumina and be run by independent Hold Separate Managers, exclusively in the interest of GRAIL (and not of Illumina); (ii) Illumina and GRAIL are prohibited from sharing confidential business information, subject to very limited exceptions and safeguards; (iii) Illumina has the obligation to provide the funds necessary for the operation of GRAIL and the development of its pipeline cancer detection tests; (iv) the business interactions between the parties shall be at arm’s length, in line with industry practice, without unduly favouring GRAIL to the detriment of its competitors; and (v) Illumina and GRAIL shall actively work to prepare for a potential order to unwind the transaction. The measures are legally binding on both Illumina and GRAIL. They will remain applicable until the Commission notifies any possible decision under Article 8(4) of the EU Merger Regulation, ordering the unwinding of the transaction. Their compliance will be monitored by a Monitoring Trustee already approved by the Commission. Should the parties fail to comply with any of the measures, they would face the risk of penalty payments of up to 5% of their average daily turnover. More information is available on the Commission’s competition website, in the public case register under the case number M.10938.
Source – EU Commission