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Illumina Challenges European Commission's Jurisdiction Over Review of Grail Acquisition in EU General Court

This story has been updated to include comments from the European Commission Directorate-General for Competition.

NEW YORK – Illumina said on Thursday that it is putting up a legal challenge to the European Commission's decision that asserts jurisdiction to review Illumina's plans to buy Grail for $8 billion.

In a statement, Illumina said it has filed an action in the General Court of the European Union for an annulment of the European Commission Directorate-General for Competition's decision asserting jurisdiction under Article 22 of the EU Merger Regulation.

"The European Commission's unprecedented and untimely decision to review this procompetitive acquisition without proper engagement with the parties leaves businesses uncertain as to how the EU Merger Regulation will be applied," said Charles Dadswell, senior VP and general counsel for Illumina.

"The Commission will defend its decision in court," Maria Tsoni, a press officer at the Directorate-General for Competition, said in an email.

On April 20, 2021, the European Commission announced it would review the deal. The case could test new guidance recently issued by the EC that changes how member states can refer cases for merger review. The US Federal Trade Commission has already said it wants to block the deal and is pursuing a preliminary injunction in federal court.

Previously, the EC recommended that states with their own merger control mechanisms follow revenue thresholds set in their own laws. However, Grail does not yet have revenues.

France's competition regulator, the Autorité de la concurrence, requested the review from the EC. According to the Autorité, Illumina and Grail challenged the request before the French Administrative Supreme Court, which dismissed the appeal. The French court held that Illumina's legal challenge "had been brought before a court without jurisdiction, as the Autorité's referral request could not be separated from the procedure for examining the transaction, which was conducted by the Commission under the supervision of the Court of Justice of the European Union," the Autorité said in a statement.

Illumina spun off Grail in 2016 and proposed last year to buy the liquid biopsy test maker for $8 billion in cash and stock.

While the court process is ongoing, Illumina said it will continue to work with the Directorate-General for Competition to bring the review to a conclusion as quickly as possible.

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