In a setback for EU antitrust regulators, an adviser to Europe’s top court has criticized the decision to block Illumina Inc’s (NASDAQ:ILMN) $7.1 billion bid for Grail Inc., stating that they exceeded their powers.
The adviser’s opinion, if upheld by judges, could impact the EU competition enforcer’s approach to other merger deals, including one involving Qualcomm Inc (NASDAQ:QCOM).
Related: Gene Sequencing Firm Illumina Escapes Carl Icahn’s Second Proxy Battle Amid Grail Divestment Efforts.
The European Commission invoked Article 22 in 2021 to assess the Illumina-Grail deal despite it falling below the EU merger revenue threshold, following requests from several EU countries.
Despite Illumina completing the transaction before regulatory approval, the Commission vetoed the deal and ordered its unwinding, leading to legal challenges from Illumina.
Citing CJEU Advocate General Nicholas Emiliou, Reuters highlighted that the General Court’s judgment was flawed in its interpretation of Article 22.
He emphasized that member states cannot request the Commission to review a concentration without a Community dimension, even if they lack the authority to review it under national law.
Emiliou warned against granting the Commission broad powers, stating it would enable them to review almost any concentration globally, regardless of turnover or presence in the EU.
He criticized the proposed procedures’ lack of efficiency, predictability, and legal certainty.
Illumina welcomed the recommendation, stating that the Commission’s assertion of jurisdiction over the merger was improper.
In December, Illumina agreed to divest Grail as the companies battled with the U.S. and European antitrust regulators for almost three years after announcing the acquisition.
Judges are expected to rule in the coming months, with their decisions likely influenced by Emiliou’s non-binding opinion.
Price Action: ILMN shares are up 3.60% at $137.98 on the last check Thursday.
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