Case T-591/23: Action brought on 26 September 2023 — Illumina v Commission
Date: 2023-09-26
Institutions: General Court
Subjects: economic concentration, equal treatment, merger control, pharmaceutical industry, principle of legal certainty, principle of proportionality, retroactivity of a law, rights of the defence, sanction (EU)








C_202300543EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/543


6.11.2023





Action brought on 26 September 2023 — Illumina v Commission
(Case T-591/23)
(C/2023/543)
Language of the case: English

Parties


Applicant: Illumina, Inc. (Wilmington, Delaware, United States) (represented by: F. González Díaz, M. Siragusa, A. Setari and E. Chutrova, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul Commission’s Decision C(2023) 4263 final of 12 July 2023 imposing fines under Article 14(2) of Council Regulation (EC) No 139/2004 (Case M.10483 — Illumina/GRAIL (Article 14 procedure));










—


in the alternative, annul the fine imposed on the applicant;










—


in the further alternative, impose a symbolic fine or substantially reduce the fine imposed on the applicant;










—


order the Commission to pay the applicant’s costs and expenses in connection with the present proceeding.





Pleas in law and main arguments

In support of the action, the applicant relies on fifteen pleas in law.






1.


First plea in law, alleging that the Decision violated essential procedural requirements and Illumina’s presumption of innocence.










2.


Second plea in law, alleging that the Decision violated the duty to state reasons to justify international jurisdiction to sanction Illumina. The Commission acted ultra vires in asserting such jurisdiction.










3.


Third plea in law, alleging that the Decision erred in law, fact, and assessment in applying Art. 7(1) of the EU Merger Regulation (1) (EUMR). In the alternative, Art. 7(1) EUMR should be declared illegal for breach of subsidiarity and proportionality principles set out the plea in law.










4.


Fourth plea in law, alleging that the Decision erred in law, fact, and assessment by finding that Illumina acquired the possibility to exert control over GRAIL.










5.


Fifth plea in law, alleging that the Decision erred in law, fact, and assessment in concluding that Illumina exerted actual control over GRAIL.










6.


Sixth plea in law, alleging that the Decision erred in law, fact, and assessment in considering that Art. 7(2) EUMR is not applicable. In the alternative, Art. 7(2) EUMR is invalid for breach of the principle of equal treatment.










7.


Seventh plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina in violation of the principles of legal certainty, protection of legitimate expectations, non-retroactivity of criminal sanctions, and equal treatment.










8.


Eighth plea in law, alleging that the Decision erred in law, fact, and assessment in concluding that Illumina’s conduct was intentional.










9.


Ninth plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina and in considering that Illumina committed an infringement, let alone a serious or very serious infringement by its very nature.










10.


Tenth plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina and in assessing the gravity of the infringement.










11.


Eleventh plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina and in assessing exonerating or at least mitigating circumstances.










12.


Twelfth plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina, in assessing deterrence and in using the break-up fee.










13.


Thirteenth plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina and in assessing duration.










14.


Fourteenth plea in law, alleging that the Decision erred in law, fact, and assessment in setting the fine and applying the maximum 10 % cap to Illumina’s 2022 turnover.










15.


Fifteenth plea in law, alleging that the Decision erred in law, fact, and assessment in imposing a fine on Illumina in violation of the principle of proportionality.






(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).


ELI: http://data.europa.eu/eli/C/2023/543/oj
ISSN 1977-091X (electronic edition)