The European Court of Justice Confirms Illumina-GRAIL Merger Was Wrongly Reviewed by the European Commission

Latham & Watkins is pleased to announce a significant victory before the European Court of Justice (ECJ), which has invalidated the European Commission’s unlawful assertion of jurisdiction over the Illumina/GRAIL transaction under the EU Merger Regulation.

The ECJ’s ruling marks a pivotal moment in the development of EU merger control, reinforcing the principles of legal certainty, institutional balance, and procedural fairness. Latham had the privilege of representing GRAIL in this landmark case, advocating for a fair and just interpretation of the regulatory framework.

“This is one of the most remarkable and complex cases in merger control history, with significant implications on the product in focus, a multi-cancer test that can detect cancer early,” said Michael Egge, partner and Global Chair of Latham’s Antitrust & Competition Practice. “The judgment underscores the importance of adhering to established legal principles and ensuring that regulatory actions are grounded in clear and predictable rules. This decision not only vindicates our client’s position but also sets a crucial precedent for future cases involving merger control and competition policy.”

The case centered on the European Commission’s attempt to review the Illumina/GRAIL transaction by soliciting an Article 22 “referral” request from EU Member States, despite the transaction not meeting the Commission’s or any individual Member State’s jurisdictional thresholds. The ECJ’s ruling invalidates the Commission’s novel approach, affirming that the Commission must respect the procedural boundaries set forth in the EU Merger Regulation.

Over the past four years, Latham’s antitrust team has represented GRAIL at all possible jurisdictional levels, including five separate administrative and seven litigation proceedings as well as a prohibition decision by the European Commission, who, as the ECJ has now confirmed, should have not taken on this case.

“We extend our gratitude to our client, GRAIL, for their trust, collaboration, and resilience throughout the process,” added David Little, antitrust partner in Latham’s London and Brussels offices. “The ECJ’s ruling is a welcome reminder of the importance of predictable and certain thresholds for determining when and to whom a deal must be notified. The successful and hard-fought outcome is a testament to the strength of our team and our commitment to delivering exceptional results for our clients.”

“We are especially pleased that the court’s reasoning closely aligns with our arguments,” said Javier Ruiz-Calzado, antitrust partner in the firm’s Brussels office. “This was a highly sensitive and complex case, as expressly noted by the court, which will have significant implications for merger control cases going forward.”

Representing GRAIL in the European Commission’s challenge were antitrust partners David Little in London/Brussels; Javier Ruiz-Calzado and Carles Esteva Mosso in Brussels; Adrien Giraud in Paris; and José María Jiménez-Laiglesia in Madrid; with Brussels associates Anna Escrigas Cañameras, Simon Troch, Daniel Muheme, Jérôme de Ponsay, Clément Pradille, Thomas Milleville, Julia Weber, and Zhijin Liu; and Sarah Miller in London.

The team that successfully defended GRAIL against the US Federal Trade Commission included Washington, D.C. partners Michael Egge, Maggy Sullivan, and Anna Rathbun; Bay Area partner Al Pfeiffer; Washington, D.C. counsel Monica Groat and associate Sean Mulloy; and San Diego associate Nathaniel Amann.

Advising GRAIL on the original acquisition by Illumina in 2020 and on corporate and capital markets matters during the antitrust proceedings was a Latham corporate team led by Los Angeles partner Alex Voxman, Century City partner Andrew Clark, Orange County partner Ross McAloon, and Chicago partner Alexa Berlin; with assistance from Century City partners David Zaheer and Brian Duff, and Century City counsel Alexandra McArthur.