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Mergers: Commission Adopts Interim Measures to Prevent Harm to Competition Following Illumina's Early Acquisition of GRAIL

The European Commission (“Commission”) has adopted interim measures to restore and maintain the conditions of effective competition following Illumina's early acquisition of GRAIL, which is in breach of the standstill obligation under the EU Merger Regulation.

On 22 July 2021 the Commission had opened an in-depth investigation into the effects of the proposed combination of Illumina and GRAIL. Shortly thereafter, on 18 August 2021, while the Commission's review was ongoing Illumina publicly announced that it had completed its acquisition of GRAIL. On 20 September 2021, the Commission sent a Statement of Objections to the two companies informing them of the interim measures it intended to adopt in response to their alleged breach of the standstill obligation under the EU Merger Regulation.

This is the first time the Commission adopts interim measures following an unprecedented early implementation of a concentration. In particular, adopted the interim measures provides that:

  • GRAIL shall be kept separate from Illumina and be run by (an) independent Hold Separate Manager(s), exclusively in the interest of GRAIL (and not of Illumina).
  • Illumina and GRAIL are prohibited from sharing confidential business information, except where the disclosure is required to comply with the law or in line with the ordinary course of their supplier-customer relationship.
  • Illumina has the obligation to finance additional funds necessary for the operation and development of GRAIL.
  • The business interactions between the parties shall be undertaken at arm's length, in line with industry practice, hence without unduly favouring GRAIL to the detriment of its competitors.
  • GRAIL shall actively work on alternative options to the transaction to prepare for the possible scenario in which the deal would have to be undone in case the Commission were to declare the transaction incompatible with the internal market.

The Commission is also continuing its in-depth investigation into the transaction and has until 4 February 2022 take a decision.

You can find the full text here.

Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr