In Illumina v Commission, the General Court has confirmed the authority of the European Commission (EC) under Article 22 EU Merger Regulation (EUMR) to examine a transaction that does not have a European dimension, but which is the subject of a referral request made by a Member State – even if the transaction is not notifiable in that Member State.
Article 22 EUMR includes a referral mechanism whereby one or more Member States may request the EC to examine any transaction insofar as it does not have an EU dimension but affects trade between Member States and threatens to significantly affect competition within the territory of the Member State or States making the request (Article 22 Conditions).
With a view to ensuring that non-notifiable yet potentially problematic mergers do not fly under the radar of merger control review, in March 2021 the EC issued practical guidance (Article 22 Guidance) on when it might be appropriate for a Member State to refer such mergers to the Commission. The EC referred in particular to the digital and pharmaceutical sectors (see our On the Subject on the Article 22 Guidance here).
In Illumina v Commission, which concerns a transaction in the pharma sector, the General Court has confirmed that the EC has the authority to examine transactions that do not have a European dimension nor fall within the scope of the national merger control rules of EU or EFTA Member States.
On September 21, 2020, Illumina, an American company specializing in genomic sequencing, announced its intention to acquire sole control of Grail, an American biotechnology company which relies on genomic sequencing to develop cancer screening tests, to “Launch New Era of Cancer Detection” (the Transaction).
The EUMR thresholds were not met by the Transaction, nor were any EU or EFTA Member State thresholds. The Transaction was therefore not notified to the EC nor any of the EU or EFTA Member States. However, on December 7, 2020, the EC received a complaint concerning the Transaction and, on investigation, reached the preliminary conclusion that the Transaction appeared to satisfy the Article 22 Conditions for referral to the EC by a national competition authority. The EC subsequently on February 19, 2021 sent a letter to the Member States (the Invitation Letter) to inform them of the Transaction and to invite them to submit a referral request under Article 22. The French competition authority obliged and other Member States subsequently requested, each in its own right, to join.
On March 11, 2021, the EC informed Illumina and Grail of the referral request (the Information Letter) and about a month later, on April 19, 2021, it accepted the referral request, along with the respective requests to join (the Contested Decisions). This prompted Illumina, supported by Grail, to file suit before the General Court (against the Contested Decisions and the Information Letter).
On substance, Illumina argued that (i) the EC lacked the competence to initiate, under Article 22 EUMR, an investigation into a transaction which does not satisfy the conditions enabling the Member State which has requested its referral to the Commission to examine it under its national merger control rules, (ii) the referral of the Transaction was requested belatedly and, in the alternative, that the EC’s delay in sending the Invitation Letter undermines the principle of legal certainty and the right to good administration, and (iii) the EC infringed the principles of legal certainty and the protection of legitimate expectations, since the Vice-President of the EC had stated that the EC’s policy would not change until the Article 22 Guidance was in place.
On July 13, 2022, the General Court dismissed Illumina’s action in its entirety (Judgment).
(i) Alleged lack of EC Competence
On the basis of a literal, historical, teleological and contextual interpretation of Article 22 EUMR, the General Court confirmed the EC’s authority under that Article to examine a transaction which is the subject of a referral request made by a Member State, even if the transaction does not fall within the scope of the Member State’s national legislation. In particular, the General Court found that:
Transactions subject to Article 22 EUMR do not need to fall within the scope of the merger control rules of the Member State requesting the referral, nor does the Member State requesting the referral to the EC need to have such a control system in place to be able to request a referral. The wording of Article 22 EUMR, specifically, the use of the expression “any transaction”, makes it clear that a Member State is entitled to refer any transaction which satisfies the Article 22 Conditions to the Commission, irrespective of the existence or scope of national merger control rules.
It is apparent from the EUMR that its objective is “to permit effective control of all [transactions] with significant effects on the structure of competition in the European Union”. While the EC’s power of examination depends primarily on the exceeding of the turnover thresholds laid down in the EUMR, these thresholds are supplemented “with rules governing the referral of [transactions] which must constitute ‘effective corrective mechanisms.” (para. 140-141) Those mechanisms create a subsidiary power of the EC which “confers on it the flexibility necessary to achieve the objective of that regulation, which is to permit the control of [transactions] likely significantly to impede effective competition in the internal market.” This could indeed be the case for transactions that are “likely significantly to impede effective competition in the internal market which, because the turnover thresholds have not been exceeded, would otherwise escape control under the merger control systems of both the European Union and the Member States.” (para. 142-143)
(ii) Alleged Belated Request of the Referral
The General Court dismissed Illumina’s argument that the referral request was submitted out of time, holding that:
The phrase “made known to the Member State concerned” in Article 22 EUMR – which constitutes the starting point of the 15 working day time limit for submitting the referral request (in a situation where the transaction does not require a notification) – “requires the relevant information to be actively transmitted to that Member State, enabling it to assess, in a preliminary manner, whether the conditions for a referral request under that article have been satisfied.” (para. 211, emphasis added). As per the General Court, only this interpretation is compatible with the principle of legal certainty as Member States can be sure that the 15 working day time limit has been triggered and that the submission of a referral request is no longer possible after its expiry. Thus, as per the General Court, this interpretation ensures foreseeability and clarity. This would not be the case if – as Illumina tried to argue – it would be sufficient to trigger the 15 working day limit by simply becoming aware of the transaction via publicly available information, such as press releases.
Contrary to what Illumina tried to argue, in the absence of evidence of the active transmission of relevant information, either by the undertakings concerned or by other sources or means, to the French competition authority or to those of the Member States that made the requests to join the referral, the question of whether the Invitation Letter, the referral request and/or the Information Letter were based on information which was already known to the public on September 21, 2020 is irrelevant.
The Invitation Letter is to be considered the piece of information that enabled the Member States to carry out a preliminary assessment of whether the Article 22 Conditions were met. Therefore, the Invitation Letter constituted the ‘making known’ referred to in Article 22 EUMR. As the Invitation Letter was sent on February 19, 2021 and France’s referral request was submitted on March 9, 2021, the period of 15 working days was complied with.
Illumina alleged that even if it were considered that the transaction at issue had been ‘made known’ by the Invitation Letter, the EC’s delay in sending that letter was contrary to the fundamental principle of legal certainty and to the obligation to act within a reasonable time under the principle of “good administration”. The General Court agreed, holding that:
The EC became aware of the existence of the transaction in question on December 7, 2020 after a complaint was lodged. From that date, a period of 47 working days therefore elapsed until the Invitation Letter was sent. This period of 47 working days did not appear to be justified as “the period of the preliminary examination phase of a [transaction] [under the EUMR] is 25 working days, during which the [EC] is required to take a decision on whether that [transaction] raises serious doubts as to its compatibility with the internal market. In view of the fact that the [EC] must, where appropriate, carry out a fairly comprehensive substantive examination of the [transaction] during that phase, it can reasonably be expected that an examination preceding the sending of an invitation letter under Article 22 [EUMR], which implies only a preliminary assessment of the criteria set out in paragraph 1 of that article, does not exceed such a period of 25 working days.” (para. 234)
The parties to a transaction that does not require notification would suffer a considerable disadvantage compared with the parties to a transaction which has to be notified if the period between, first, informing the EC on the existence of the transaction and, second, the adoption by the EC of the decision on the acceptance of a referral request was the same length as the detailed examination phase under Article 8 EUMR, which involves complex economic assessments as to the compatibility of a transaction with the internal market.
The mere fact that the EC has demonstrated continuous activity in the investigation of the case is not sufficient for it to be considered that that period constituted a reasonable period of time.
However, the General Court recalled that the infringement of the reasonable time principle, justifies the annulment of a decision taken at the end of an administrative procedure concerning competition only in so far as it also constitutes an infringement of the rights of defence of the undertaking concerned. As Illumina, according to the General Court, failed to demonstrate that was the case here – inter alia because it was the Contested Decisions, and not the Invitation Letter, which adversely affected them, and in relation to which the undertakings concerned had the right to be heard – the General Court’s findings in relation to the infringement of the reasonable period of time principle did not have any consequences.
(iii) Alleged Breach of the Principles of the Protection of Legitimate Expectations and Legal Certainty
The General Court dismissed Illumina’s argument that the EC infringed the principles of legal certainty and the protection of legitimate expectations (given that the Vice-President of the EC had stated that the EC’s policy would not change until the Article 22 Guidance was in place), holding, inter alia that:
The right to rely on the principle of the protection of legitimate expectation presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union – which was not the case here.
Given the position that the EC set out in the Invitation Letter, adopted specifically with regard to the Transaction at issue, Illumina could not rely on those documents to prove that specific assurances that an alleged policy to the contrary would be maintained were made.
With Illumina v Commission, the General Court has confirmed the EC’s authority under Article 22 EUMR to examine a transaction that does not have a European dimension, but which is the subject of a referral request made by a Member State even if the transaction is not notifiable in that Member State. That said, as is also outlined in the General Court’s judgment, the EC has in principle always had these powers. However, following the publication of its Article 22 Guidance, the EC now no longer discourages Member States not having jurisdiction from submitting a referral request, and by virtue of the General Court’s Judgment, the EC’s far-reaching powers under the Article 22 Guidance are now solidified.
However, perhaps the more striking element to highlight from the circumstances in Illumina v Commission, is that the EC invited the Member States to make a referral request after having received a complaint. In light of the Judgment, and the EC’s Article 22 Guidance, it may well be expected that complaints regarding mergers will become (even) more frequent and – especially in the digital and pharmaceutical sectors – will encourage the EC to invite Member States to make referral requests more frequently going forward so it can take jurisdiction over the case in a situation where it would otherwise have not been able to do so.
The Illumina v Commission judgment therefore paves the way for more uncertainty for companies seeking to engage in M&A activities in the European Union especially those active in the digital and pharma sectors. At the stage when M&A deals are being signed, when ordinarily an assessment has already been made whether filings in or across the European Union are needed, no guarantees can be made that the deal will not eventually end up on the EC’s desk. This obviously has significant consequences in relation to the timing and implementation of the deal (given the standstill obligation – which prohibits the deal from being implemented before clearance has been received) and will need to be carefully factored in. In that respect, it is worth pointing to the fact that the EC is set to charge Illumina for “gun-jumping” and closing the Grail deal prematurely (in August 2021) whilst it was still under review by the EC. As the past has demonstrated, gun-jumping fines can be very hefty in the EU – with the biggest fine to date being the EUR 124.5 million fine imposed on Altice.
Illumina v Commission quashes the hopes of those that perhaps thought Judgment may have provided an opportunity for the General Court to scale back the EC’s power of authority. However, Illumina has announced it will appeal the Judgment, so the saga is not entirely over yet.