The EU Commission prohibits the acquisition of a nascent biotech firm working on a pioneering technology to detect cancer by blood tests by a major American-based biotech company, despite the fact that the requisite merger thresholds have not been reached (Illumina / Grail)

On September 6, 2022, the European Commission (the “Commission”) blocked the acquisition of Grail by Illumina—although the deal didn’t meet the turnover threshold of the EU or any Member State—arguing that the merger would have prevented innovation and competition in the blood-based early cancer detection test market. This case represents a significant breakthrough in the Commission’s exercise of its merger control powers because it was the first such instance falling under the new interpretation of Article 22 of the EU Merger Regulation (Regulation No. 139/04, or “EUMR”), which allows the Commission to scrutinize below-threshold transactions. BACKGROUND OF THE CASE AND THE RENEWED APPLICATION OF ARTICLE 22 EUMR In September 2020, Illumina, the global leader in next-generation sequencing