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Barr Ellison Solicitors – commercial property
26 July, 2021 - 13:16 By Tony Quested

Illumina challenges EC jurisdiction over GRAIL acquisition in court

US genomics giant Illumina, which has major operations in Cambridge, is challenging the EC’s jurisdiction to investigate the repurchase of healthcare company GRAIL under Article 22 of the European Union Merger Regulation and has begun court action.

Illumina is committed to bringing what it calls a lifesaving GRAIL oncology test to people globally to stimulate earlier detection of multi cancers. Illumina previously owned the business and signalled last September that it wanted to buy it back in an $8 billion deal. It says the EC opposition could cost lives.

The proposed deal has hit a competition barrier and Illumina is standing firm as the European review process enters a second phase.

While Illumina wants to work with the EC as far as possible it queries the Commission’s right to decide.

Charles Dadswell, general counsel for Illumina, said: “This acquisition is procompetitive and we have offered far-reaching structural and behavioural remedies to address any potential concerns. 

“Illumina will continue to work with the European Commission to ensure that it has the information and assurances necessary to approve this transaction. We look forward to presenting our position during the Phase II process.”

But the company swiftly added that it was also challenging the EC’s jurisdiction to investigate the transaction under Article 22 of the European Union (EU) Merger Regulation. 

It argues that the Commission reversed decades of merger policy in asserting jurisdiction under Article 22 of the EU Merger Regulation on April 19, 2021, seven months after the deal was announced. Illumina has filed an action in the General Court of the EU seeking annulment of the EC’s jurisdiction to review the acquisition.

“The Commission’s unprecedented decision to assert jurisdiction to review this transaction between two US-based companies leaves businesses around the world uncertain as to how the EU Merger Regulation will be applied in the future,” said Dadswell.

Illumina’s re-acquisition of GRAIL means that millions of citizens across the European Economic Area (EEA) will be able to access life-saving early cancer screening years sooner. 

“When people have access to early cancer detection, lives will be saved,” said Francis deSouza, CEO of Illumina. “If this acquisition does not proceed, GRAIL’s European roll-out will be slower and the cost will be measured in the unnecessary loss of life. 

“Re-uniting GRAIL with Illumina will accelerate availability of the GRAIL test by many years in the EEA and globally, saving tens of thousands of lives, and leading to significant health care cost savings.”

Illumina is improving human health by unlocking the power of the genome. Its focus on innovation has established the company as the global leader in DNA sequencing and array-based technologies, serving customers in the research, clinical and applied markets. 

Its products are used for applications in the life sciences, oncology, reproductive health, agriculture and other emerging segments.

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