CELEX: 62014TJ0574
Competition
Agreements, decisions and concerted practices
Parallel trade in medicines
Agreement operating a distinction between prices charged for products intended for resale in Spain and prices charged for products intended for export to other Member States
Request for re-examination of a complaint following judgments of the Court of Justice and the General Court
Article 266 TFEU
Rejection of a complaint
No Union interest
Cessation of the anti-competitive practice
Absence of persisting anti-competitive effects
Case being dealt with by a competition authority of a Member State
Obligations in relation to the investigation of a complaint
Article 105 TFEU
Article 7 of Regulation (EC) No 1/2003
Procedural rights of a complainant
Obligation to state reasons

Background to the dispute
The applicant, European Association of Euro-Pharmaceutical Companies (EAEPC), is a European association established in Brussels (Belgium) which represents the interests of independent companies operating in the export or import and re-packaging of finished pharmaceutical products within the European Economic Area (EEA).
GlaxoSmithKline SA, formerly Glaxo Wellcome SA, is a company regulated by Spanish law established in Madrid (Spain) whose main activity is the development, manufacture and marketing of medicines in Spain. GlaxoSmithKline plc, the parent company of GlaxoSmithKline SA (together ‘GSK’ or ‘the interveners’), is established in Brentford (United Kingdom) and is one of the world’s main producers of pharmaceutical products.
Initial administrative procedure
On 6 March 1998, Glaxo Wellcome SA notified to the Commission of the European Communities its new general sales conditions to authorised wholesalers in Spain (‘the agreement’) with a view to obtaining negative clearance pursuant to Article 2 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [85 and 86 of the EC Treaty, which became Articles 81 and 82 EC and then Articles 101 and 102 TFEU] (OJ, English Special Edition 1959-62, p. 87), or, alternatively, an individual exemption pursuant to Article 4 of that regulation, now repealed by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC [now Articles 101 and 102 TFEU] (
OJ 2003 L 1, p. 1
). By letter of 28 July 1998, Glaxo Wellcome plc, the parent company of Glaxo Wellcome SA, sent a supplementary notification to the Commission, drawing attention to certain factors which affected its business and that of its subsidiaries throughout the territory of the European Union and which were not specific to Glaxo Welcome’s business.
The agreement concerned 82 medicines intended for sale to wholesalers established in Spain with whom GSK had commercial relations. Those wholesalers could intend to resell them to hospitals or pharmacies in Spain, or in other Member States. Article 4 of the agreement distinguished between the prices charged to wholesalers for medicines that were to be resold on the national market and those charged for medicines that were to be exported. The agreement was signed by GSK and 75 wholesalers, entered into force on 9 March 1998 and was suspended by the Tribunal de Defensa de la Competencia (Competition Tribunal, Spain) on 16 October 1998.
On 19 January 1999, the applicant lodged a complaint with the Commission pursuant to Article 3(2) of Regulation No 17 (‘the 1999 complaint’), whereby it requested the Commission to refuse to grant negative clearance or an exemption and to order GSK to bring the pricing policy provided for in the agreement to an end. The applicant claimed that the dual-pricing scheme provided for in the agreement entailed an indirect prohibition on exports and an instrument for sealing off of the market contrary to Article 101(1) TFEU and could not benefit from an exemption under Article 101(3) TFEU.
On 8 May 2001, the Commission adopted Decision 2001/791/EC relating to a proceeding pursuant to Article 81 of the EC Treaty (Cases: IV/36.957/F3
Glaxo Wellcome (notification)
, IV/36.997/F3
Aseprofar and Fedifar (complaint)
, IV/37.121/F3
Spain Pharma (complaint)
, IV/37.138/F3
BAI (complaint)
, IV/37.380/F3
EAEPC (complaint)
) (
OJ 2001 L 302, p. 1
, ‘the 2001 decision’), according to which the agreement notified had the object and effect of restricting competition within the meaning of Article 101(1) TFEU. Article 1 of that decision provides that Glaxo Wellcome ‘has infringed Article [101(1) TFEU] by entering into an agreement with Spanish wholesalers operating a distinction between prices charged to wholesalers in the case of domestic resale of reimbursable drugs to pharmacies or hospitals and higher prices charged in the case of exports to any other Member State’. Article 2 of the 2001 decision provides that the notified conditions of sale did not meet the conditions for exemption in Article 101(3) TFEU. Lastly, Articles 3 and 4 of the 2001 decision order Glaxo Wellcome to ‘immediately bring to an end the infringement referred to in Article 1’ and to inform the Commission of the steps taken to that effect, respectively.
Proceedings before the General Court and the Court of Justice
On 23 July 2001, GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc, brought an action for annulment of the 2001 decision. The applicant intervened in support of the form of order sought by the Commission.
By judgment of 27 September 2006,
GlaxoSmithKline Services
v
Commission
(T‑168/01, ‘the judgment in Case T‑168/01’,
EU:T:2006:265
), the General Court dismissed the action in so far as it concerned Article 1 of the 2001 decision. In that regard, the General Court considered that, although the principal conclusion reached by the Commission, namely that Clause 4 of the agreement had as its object the restriction of competition, was incorrect, GlaxoSmithKline Services had not succeeded in calling in question the Commission’s subsidiary conclusion that that provision had the effect of restricting competition and was, therefore, contrary to Article 101(1) TFEU (the judgment in Case T‑168/01, paragraphs 147 and 194). Conversely, the General Court upheld the action as regards Articles 2 to 4 of the 2001 decision and annulled those articles on the ground that the Commission had not carried out an adequate examination of whether the conditions laid down in Article 101(3) TFEU had been fulfilled (the judgment in Case T‑168/01, paragraphs 308 and 316 to 318).
By their appeals, GlaxoSmithKline Services, the Commission and the applicant requested the Court of Justice to set aside in part the judgment in Case T‑168/01.
By judgment of 6 October 2009,
GlaxoSmithKline Services and Others
v
Commission and Others
(C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, ‘the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P’,
EU:C:2009:610
), the Court of Justice, first, held that the General Court’s reasoning was flawed and upheld the Commission’s conclusion in the 2001 decision that the agreement had as its object the restriction of competition and thus infringed Article 101(1) TFEU. However, the Court of Justice considered that the error of law on the part of the General Court did not constitute a ground for setting aside its judgment, since it had been held in that judgment that the agreement was contrary to Article 101(1) TFEU (judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, paragraphs 64 to 67). Secondly, the Court of Justice upheld the General Court’s finding that the Commission had not carried out a full examination of the arguments put forward by GlaxoSmithKline Services concerning the exemption under Article 101(3) TFEU (judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, paragraphs 68 to 168). The Court of Justice therefore dismissed the appeals brought.
Procedure before the Commission following the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P
On 26 January 2010, GSK formally withdrew its request of 6 March 1998 for negative clearance or an individual exemption, for considerations of procedural economy and in order to avoid needless expenditure of time and resources, emphasising that the notification had been filed in 1998, that it had not operated the pricing scheme in Spain since then and that market conditions had changed substantially.
Following delivery of the judgment of the Court of Justice in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, the Commission held a series of meetings with the applicant and other interested parties, maintained contacts with the Spanish authorities, examined new observations submitted by the applicant and opened an investigation on 24 January 2012 regarding alleged dual-pricing practices in Spain engaged in by undertakings other than GSK (Case AT.39973
Pricing schemes for distribution of medicines in Spain
).
By letter of 9 April 2013, the applicant asked the Commission, in accordance with Article 265 TFEU, to ‘adopt a decision in relation to [the 1999 complaint] and to fulfil its obligation to re-examine the Glaxo case as ordered by the European Courts’.
By letter of 6 June 2013 pursuant to Article 7 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (
OJ 2004 L 123, p. 18
), the Commission informed the applicant that it intended to reject the 1999 complaint. Following the applicant’s request of 19 June 2013, the Commission provided it with access on 5 July 2013 to the documents that had served as the basis for its provisional assessment, pursuant to Article 8(1) of Regulation No 773/2004.
By letter of 18 July 2013, the applicant submitted its observations in response to the Commission’s letter of 6 June 2013 and argued that the Commission should continue with its investigation.
On 11 September 2013 and 3 October 2013, the Commission met representatives of the applicant in order to discuss its position and the arguments set out in its letter of 6 June 2013.
Contested decision
By Decision C(2014) 3654 final of 27 May 2014 (Case COMP/AT.36957 —
Glaxo Wellcome
) (‘the contested decision’), the Commission rejected the 1999 complaint pursuant to Article 7(2) of Regulation No 773/2004 for lack of sufficient Union interest in continuing to investigate the alleged infringements. After noting, in recitals 19 to 22 of the contested decision, that it had a discretion when dealing with complaints, which enabled it, inter alia, to reject a complaint on the ground that there was insufficient Union interest in further investigating the case, the Commission concluded that the 1999 complaint should be rejected for the following reasons.
First, in recitals 24 and 25 of the contested decision, the Commission stated that the conduct at issue had no longer been implemented since 16 October 1998 and that there was nothing in the file or all of the facts and arguments in the applicant’s submissions to indicate that GSK had resumed or intended to resume its dual-pricing scheme in Spain.
Secondly, in recital 26 of the contested decision, the Commission noted the lack of persisting effects of the presumed infringements. In particular, it stated that there was no evidence that the Spanish wholesalers’ ability to export the 82 medicines covered by the agreement had been restricted since the suspension of the agreement on 16 October 1998. In addition, the Commission found that the persisting effects were unlikely, having regard also to the fact that the practices had lasted only seven months, namely from 9 March to 16 October 1998. The Commission also observed, in recital 27 of the contested decision, that there was no causal link between its conduct in the present case and the adoption of other pricing practices by other manufacturers in Spain.
Thirdly, the Commission found, in recitals 39 to 41 of the contested decision, that the case could be brought before the national authorities and that it had not been shown that the applicant’s rights would not be adequately protected by the national competition authorities and the national courts.
Fourth and lastly, in recitals 42 to 47 of the contested decision in answer to the arguments put forward by the applicant, the Commission found that it was not required to adopt a new decision, in the light of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P and on the basis of Article 266 TFEU, examining whether the agreement satisfied the conditions laid down in Article 101(3) TFEU. The Commission emphasised (i) that a failure to act, within the meaning of Articles 265 and 266 TFEU, consisted in a failure to take a decision or to define a position, not in the adoption of a measure different from that desired by the persons concerned, (ii) that it could not rule on a request for exemption that had been withdrawn, (iii) that it was not required to act on the 1999 complaint on account of the annulment of the 2001 decision by the Court of Justice and (iv) that a complainant under Article 7 of Regulation No 1/2003 could not require the Commission to adopt a decision as to the existence of an infringement.
Procedure and forms of order sought
By application lodged at the General Court Registry on 1 August 2014, the applicant brought the present action.
The Commission lodged a defence on 16 October 2014.
By decision of the President of the Court of 28 October 2014, the present case was assigned to a Judge-Rapporteur sitting in the Sixth Chamber.
The applicant lodged a reply on 19 December 2014.
By document lodged at the Court Registry on 7 January 2015, GSK sought leave to intervene in the present proceedings in support of the form of order sought by the Commission, in accordance with Article 115 of the Rules of Procedure of the General Court of 2 May 1991.
The Commission lodged a rejoinder on 25 February 2015.
By document lodged at the Court Registry on 10 March 2015, the applicant requested confidential treatment of certain material in the application, the defence, the reply and the annexes to those documents, with regard to GSK.
By order of 6 May 2015, the President of the Sixth Chamber of the Court granted GSK’s application to intervene. GSK lodged its statement in intervention on 8 July 2015 and the Commission and the applicant lodged their observations on that statement on 8 and 9 September 2015, respectively.
By order of 9 November 2015, EAEPC v Commission (
T‑574/14
, not published,
EU:T:2015:872
), the President of the Sixth Chamber of the Court granted the request for confidential treatment with regard to GSK.
On 18 April 2016, the present case was assigned to a new Judge-Rapporteur sitting initially in the Third Chamber, then, following the new composition of the Chambers of the Court, in the Fourth Chamber, to which the case was, therefore, assigned.
On a proposal from the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure.
The parties presented oral argument and answered the questions put by the Court at the hearing on 4 April 2017.
The applicant claims that the Court should:
–
annul the contested decision;
–
order the Commission and the interveners to pay the costs.
The Commission contends that the Court should:
–
dismiss the action as unfounded;
–
order the applicant to pay the costs, including those incurred by the Commission in connection with the intervention.
The interveners contend that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs, including those incurred by the interveners in connection with the intervention.
Law
In support of its action, the applicant puts forward three pleas in law. The first plea in law alleges a manifest error of assessment in the application of Articles 266, 101 and 105 TFEU and Article 7 of Regulation No 1/2003 in relation to the interpretation of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P and a breach of the obligation to state reasons and of the right to be heard. The second plea in law, which is raised in the alternative, alleges a manifest error of assessment and a breach of the obligation to state reasons regarding the Union’s interest in continuing the investigation, and a breach of the right to be heard. The third plea alleges, in essence, failure to provide adequate reasons in that the contested decision does not contain an analysis of certain matters of fact and of law communicated to the Commission by the applicant following delivery of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P.
The Commission and GSK dispute all of the applicant’s arguments.
The first plea in law, alleging a manifest error of assessment in the application of Articles 266, 101 and 105 TFEU and Article 7 of Regulation No 1/2003 in relation to the interpretation of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, and a breach of the obligation to state reasons and of the right to be heard
By its first plea in law, the applicant submits that, in rejecting the 1999 complaint, the Commission manifestly misapplied Articles 266, 101 and 105 TFEU and Article 7 of Regulation No 1/2003. It maintains that the contested decision is based on the incorrect premiss that the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P declare the 2001 decision ‘null and void’, whereas that decision remains valid in part in that it finds that the agreement is contrary to Article 101(1) TFEU. Accordingly, in the applicant’s submission, the Commission ought to have given effect to those judgments not by ‘conduct[ing] a new in-depth investigation of the [1999] [c]omplaint’, in the words of the Commission, but by resuming the administrative procedure at the precise point at which the illegality took place, in order to examine whether the agreement could be exempted on the basis of Article 101(3) TFEU. In addition, the applicant submits that the Commission infringed its obligation to state reasons within the meaning of Article 296 TFEU, by failing to explain why it considered that the 2001 decision was ‘null and void’ and, moreover, infringed the applicant’s right to be heard concerning the effects to be given to the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P.
According to the Commission and the interveners, the first plea in law is ineffective and, in any event, wholly unfounded.
The effectiveness of the first plea in law
The Commission and the interveners contend that the first plea in law must be rejected as ineffective, since a possible misinterpretation of the effects of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P would not be capable of calling in question the lawfulness of the contested decision. More specifically, the rejection of the 1999 complaint is solely premised on the Commission’s discretion in dealing with complaints and the applicant’s argument cannot, therefore, legitimately lead to the contested decision’s annulment. The applicant does not seek to challenge the Commission’s main assessment on which the contested decision is based, namely the absence of a Union interest in continuing with the investigation.
It must be borne in mind, first of all, that, in an action for annulment, the ineffective nature of a plea which has been raised refers to its capacity, in the event that it is well founded, to lead to the annulment sought by an applicant (judgments of 21 September 2000, EFMA v Council,
C‑46/98 P
,
EU:C:2000:474
, paragraph
, and of 12 September 2007, Prym and Prym Consumer v Commission,
T‑30/05
, not published,
EU:T:2007:267
, paragraph
).
In the present case, by its first plea in law, the applicant relies on the Commission’s obligation to comply with the operative part of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, in order to state that the Commission was obliged, in the light of the provisions of Articles 266, 101 and 105 TFEU and Article 7 of Regulation No 1/2003, to decide whether the conditions for exemption under Article 101(3) TFEU were fulfilled, thereby a fortiori responding to its complaint as to the substance. In other words, the applicant submits that the Commission may not, without failing to comply with those judgments, find that there is no need to continue with the investigation. The Commission, first, is required to correct the illegalities of the 2001 decision, found in those judgments, and, secondly, was not entitled to close the investigation on the ground of lack of sufficient Union interest.
It follows that, given that the contested decision is based, precisely, on a lack of Union interest in continuing with the examination of the complaint, in the event that the first plea in law is well founded, it could lead to the annulment which the applicant seeks.
It follows from the foregoing that the present plea in law may not from the outset by rejected as ineffective. The merits of the plea must, therefore, be examined.
The merits of the first plea in law
The first plea in law is divided, in essence, into three parts, alleging, first, an infringement of Article 266 TFEU, secondly, an infringement of Articles 101 and 105 TFEU read in conjunction with Article 7 of Regulation No 1/2003 and, thirdly, a failure to state reasons and a breach of the right to be heard.
–
The first part of the first plea, alleging infringement of Article 266 TFEU
The applicant submits that the Commission failed to fulfil its obligation to take all necessary measures to comply with the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, and thus infringed Article 266 TFEU. The Commission misinterpreted those judgments in stating, first, that the 2001 decision was, in essence, ‘null and void’, secondly, that it was not ‘obliged to take up the Complaint on account of the annulment of the Decision by the ECJ’ and, thirdly, that it would be necessary to ‘conduct a new in-depth investigation [on the basis of the [1999] [c]omplaint’. The applicant submits that, following those judgments, first, the 2001 decision was annulled only in part, in so far as Article 1 of that decision finding an infringement of Article 101(1) TFEU had not been annulled and, secondly, the Commission was required only to assess, on the basis of the evidence already provided to it by GSK, whether the infringement by object found could be exempted under Article 101(3) TFEU.
At the outset, it must be borne in mind that, under the first paragraph of Article 266 TFEU, the institution whose act has been declared void was required to take the necessary measures to comply with the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P. Those rules provide for the sharing of powers between the judicial authority and the administrative authority, according to which it is for the institution that issued the act annulled to determine what measures are required to comply with a judgment annulling a decision (see judgment of 5 September 2014, Éditions Odile Jacob v Commission,
T‑471/11
,
EU:T:2014:739
, paragraph
and the case-law cited).
It is settled case-law that annulment judgments given by the European Union Courts have force of
res judicata
with absolute effect as soon as they become final. This applies not only to the operative part of the judgment annulling a decision, but also to the grounds which are its essential basis and are inseparable from it (see judgment of 5 September 2014, Éditions Odile Jacob v Commission,
T‑471/11
,
EU:T:2014:739
, paragraph
and the case-law cited).
The principle of
res judicata
of a judgment extends, however, only to the matters of fact and law actually or necessarily settled (judgment of 19 February 1991, Italy v Commission,
C‑281/89
,
EU:C:1991:59
, paragraph
). Thus, Article 266 TFEU requires the institution which adopted the annulled act only to take the necessary measures to comply with the judgment annulling its act (judgment of 6 March 2003, Interporc v Commission,
C‑41/00 P
,
EU:C:2003:125
, paragraph
).
In addition, partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the act. That requirement is not satisfied where the partial annulment of an act would cause the substance of that act to be altered, a point which must be determined on the basis of an objective criterion and not of a subjective criterion linked to the political intention of the authority which adopted the act at issue (see, to that effect, judgment of 6 December 2012, Commission v Verhuizingen Coppens,
C‑441/11 P
,
EU:C:2012:778
, paragraph
and the case-law cited).
In addition, the procedure for replacing an annulled act must be resumed at the very point at which the illegality occurred (see, to that effect, judgment of 3 July 1986, Council v Parliament,
34/86
,
EU:C:1986:291
, paragraph
), the annulment of an act not necessarily affecting the preparatory acts (see, to that effect, judgment of 13 November 1990, Fédesa and Others,
C‑331/88
,
EU:C:1990:391
, paragraph
). The annulment of an act concluding an administrative proceeding which comprises several stages does not necessarily entail the annulment of the entire procedure prior to the adoption of the contested act regardless of the grounds, procedural or substantive, of the judgment pronouncing the annulment (see judgment of 15 October 1998, Industrie des poudres sphériques v Council,
T‑2/95
,
EU:T:1998:242
, paragraph
and the case-law cited). The author of the act must, therefore, have reference to the date on which it had adopted the annulled act with a view to adopting the replacement act (see, to that effect, judgment of 2 May 2006, O2 (Germany) v Commission,
T‑328/03
,
EU:T:2006:116
, paragraphs
and
). It may, however, rely, in its new decision, on grounds other than those on which it based its first decision (see, to that effect, judgment of 6 March 2003, Interporc v Commission,
C‑41/00 P
,
EU:C:2003:125
, paragraphs
to
). In addition, it is not required to rule again on aspects of the initial decision which were not called into question by the judgment annulling that decision (see, to that effect, judgment of 27 November 1997, Tremblay and Others v Commission,
T‑224/95
,
EU:T:1997:187
, paragraph
).
It is in the light of the foregoing considerations that the Court must verify whether the Commission, in the present case, has taken the necessary measures to comply with the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P and, in that context, in particular to examine whether the operative part and the grounds of those judgments obliged the Commission to act on the 1999 complaint irrespective of whether there was a sufficient Union interest in acting on it.
First of all, it is necessary to refer to the grounds and operative part of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, in order better to assess the measures necessary to comply with those judgments.
First, as regards the infringement of Article 101(1) TFEU, it must be borne in mind that by the judgment in Case T‑168/01, the General Court held, in essence, that the agreement did not have as its ‘object’, but rather its ‘effect’, a restriction of competition within the meaning of Article 101(1) TFEU (see paragraph 8 above). The Court of Justice, on the other hand, found that the agreement had as its ‘object’ the restriction of competition and that the General Court had, therefore, erred in law in the grounds of the judgment. However, that error of law was not, in the view of the Court of Justice, such as to lead to the judgment in Case T‑168/01 being set aside, because the operative part of that judgment was well founded on that point, in that it confirmed, in essence, that the agreement infringed Article 101(1) TFEU (see paragraph 9 above). It follows that Article 1 of the 2001 decision, cited in paragraph 6 above, finding an infringement of Article 101(1) TFEU was never in fact annulled.
Secondly, as regards the infringement of Article 101(3) TFEU, it must be borne in mind that the General Court, having found that the Commission had not correctly examined the request for exemption of the agreement under Article 101(3) TFEU, annulled Articles 2 to 4 of the 2001 decision, and concluded, in paragraphs 319 and 320 of the judgment in Case T‑168/01, that ‘pursuant to the first paragraph of Article [266 TFEU], the Commission [wa]s required to take the necessary measures to comply with this judgment’ and that, ‘to that end, although the notification procedure provided for in Regulation No 17 no longer exist[ed] under [Regulation No 1/2003], it f[ell] upon the Commission, in the light of the partial annulment of the [contested decision] and the retroactive effect thereof, to rule on the request for exemption presented by GSK by reference to the date of that request … in so far as that request remain[ed] before it.’ The Court of Justice confirmed the General Court’s analysis in that regard, finding that ‘it [wa]s not for the [General Court] to substitute its economic assessment for that of the author of the decision whose legality it [wa]s requested to review’ (judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, paragraph 163). Accordingly, as is apparent from the operative part of the judgment in Case T‑168/01, Articles 2 to 4 of the 2001 decision, cited in paragraph 6 above, were annulled.
It follows from the foregoing that, in order to comply with the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, the Commission was required, because of the retroactive effect of the partial annulment of the 2001 decision, to rule solely on the request for exemption presented by GSK by reference to the date of the notification of the agreement and thus carrying out its examination in the context of Regulation No 17. Under the previous regime of administrative authorisation of Regulation No 17, only the Commission could adopt a decision subsequent to a request for individual exemption under Article 101(3) TFEU, it having no discretion as to whether or not to examine the request for an exemption. In addition, in accordance with the case-law, the fact that Regulation No 1/2003, which has since 1 May 2004 governed the implementation of the rules on competition laid down in Articles 101 and 102 TFEU, put an end to the notification procedure which previously existed has no effect on the enforcement of a judgment granting the application for annulment (see, to that effect, judgment of 2 May 2006, O2 (Germany) v Commission,
T‑328/03
,
EU:T:2006:116
, paragraph
).
However, as is apparent from paragraph 320 of the judgment in Case T‑168/01, the Commission was required to adjudicate on the request for exemption only ‘in so far as that request remain[ed] before it’. In other words, it was relieved of that obligation only if the applicant decided to withdraw its request. That is precisely what occurred in the present case, since, on 26 January 2010, several months after the delivery of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, GSK withdrew its request of 6 March 1998 for negative clearance or individual exemption under Article 101(3) TFEU. Consequently, the Commission was in fact no longer required to adjudicate on a request for exemption no longer before it.
As regards the Commission’s alleged obligation to act on the 1999 complaint merely because the application for re-examination submitted by the applicant related to the 2001 decision, which was only partially annulled, it must be found that Article 266 TFEU requires the institution which adopted the annulled act only to take the necessary measures to comply with the judgment annulling its act (see paragraph 50 above). As the interveners correctly observe, the General Court, in paragraph 320 of the judgment in Case T‑168/01, expressly requested the Commission to rule on the request for an exemption, not on the various complaints lodged against GSK.
Consequently, since the request for negative clearance or an exemption lodged by GSK no longer remained before the Commission, it complied with the grounds and operative part of the judgment in Case T‑168/01 for the purposes of Article 266 TFEU, since it is not apparent from that judgment that the Commission was obliged to carry out a fresh investigation as to the complaints connected to the 2001 decision, but was required to do so only in respect of the request for exemption.
That conclusion cannot be called in question by the applicant’s arguments alleging a manifest error of assessment of the effects of the judgment in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P in recitals 9, 18 and 46 of the contested decision.
As regards, first of all, the alleged mischaracterisation of the 2001 decision as being, in essence, ‘null and void’, it must be found, as is apparent from paragraphs 55 and 56 above, that the effect of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P was clearly to annul the 2001 decision in part, since Article 1 of the 2001 decision was never annulled while Articles 2 to 4 of that decision were.
It follows that the Commission’s assessment in recitals 9 and 46 of the contested decision — according to which, respectively, ‘the effect of the judgment of the ECJ is that the [2001 decision] was considered null and void and the situation was to be regarded as if the Commission had never adopted [that d]ecision’ and, ‘in this case given that the effect of the judgments of the ECJ is that the [2001 decision] was considered null and void and the situation was to be regarded as if the Commission had never adopted [that d]ecision, the Commission is not obliged to take up the Complaint on account of the annulment of the [2001 decision] by the ECJ’ — is mistaken, since Article 1 of the 2001 decision was in fact never annulled.
The same applies to the wording — which is at the very least ambiguous — of recital 18 of the contested decision, according to which the Commission would have had to ‘conduct a new in-depth investigation of the [1999 complaint]’, if that phrase had to be interpreted as referring to a new investigation on all the aspects of Article 101 TFEU, including the very existence of the infringement of Article 101(1) TFEU, as the applicant claims.
In addition, those findings cannot be invalidated by the Commission’s arguments that, first, the legal effects of the 2001 decision arise solely from Articles 2 to 4 of that decision, which were annulled, not from Article 1 thereof, and, secondly, under the previous regime of Regulation No 17, GSK did not infringe Article 101 TFEU as a whole, as the situation was as if no decision on the request for exemption had been taken.
However, even though the Commission failed to find that Article 1 of the 2001 decision was still valid, it must be held that, as determined in paragraphs 57 and 58 above, under the regime of Regulation No 17, the Commission was no longer under an obligation to take measures of compliance, since GSK had withdrawn its request for negative clearance or for an exemption. Consequently, since the application for re-examination of the 1999 complaint had been brought before it on 9 April 2013, more than three years after GSK’s request for negative clearance or for an exemption had been withdrawn on 26 January 2010, the Commission was entitled to deal with the 1999 complaint in the light of the new circumstances, including the fact that the request for negative clearance or for an exemption had in the meantime been withdrawn. In the context of that very specific factual background, the Commission was, therefore, entitled to assess the Union interest, as at the date on which the contested decision was adopted, notwithstanding the maintenance in force of the 2001 decision in part.
In the light of the foregoing, the first part of the first plea in law, alleging an infringement of Article 266 TFEU, must be rejected.
–
The second part of the first plea, alleging an infringement of Articles 101 and 105 TFEU read in conjunction with Article 7 of Regulation No 1/2003
First, the applicant submits that, in deciding to ‘abandon the case’ on the ground that GSK had withdrawn its request for an exemption, the Commission failed to fulfil its obligation, under Article 105 TFEU, to ensure the application of Article 101 TFEU. In its submission, under both the old regime governed by Regulation No 17 and the regime governed by Regulation No 1/2003, since an infringement ‘by object’ of Article 101(1) TFEU was identified by the Commission and GSK refused to prove that the conditions of Article 101(3) TFEU might be fulfilled, the Commission had only one alternative if it were not to infringe Article 105 TFEU: to conduct the Article 101(3) analysis itself, ‘using the means available to it’, or, should that option prove impossible, to prohibit the agreement and prevent the conduct from being repeated. In the present case, the Commission ought to have considered that, by withdrawing its request for an exemption, GSK waived its right to put forward a defence on the basis of Article 101(3) TFEU.
Secondly, the applicant maintains that the Commission ought at least to have replaced Articles 3 and 4 of the 2001 decision, which had been annulled by the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, by a new decision setting out the consequences of the infringement identified, pursuant to Article 7 of Regulation No 1/2003, which provides that the Commission must ‘effectively bring the infringement to an end’, and in accordance with the principle of legal certainty, in so far as the Commission is required to inform the undertakings clearly and precisely of the consequences of an infringement of Article 101(1) TFEU being found.
Thirdly, the applicant notes that the Commission is always entitled to adopt individual decisions under Article 101 TFEU and Article 11(6) of Regulation No 1/2003, even when a national competition authority is already dealing with the case. In the reply, it states that in the present case the Commission had relieved the Spanish competition authority of its competence to continue dealing with the case which concerned GSK’s dual-pricing system (see decision R 515/02 of the Spanish competition authority of 30 June 2003). Consequently, the Commission was required to continue with the investigation, having regard to the letter and the spirit of Article 105 TFEU and of Articles 7 and 11 of Regulation No 1/2003.
First of all, it must be noted that, according to settled case-law, Article 7 of Regulation No 1/2003 does not give the complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (see, to that effect, judgments of 19 September 2013, EFIM v Commission,
C‑56/12 P
, not published,
EU:C:2013:575
, paragraphs
and
, and of 11 January 2017, Topps Europe v Commission,
T‑699/14
, not published,
EU:T:2017:2
, paragraph
; see, also, point 41 of the Commission Notice on the handling of complaints by the Commission under Articles [101] and [102 TFEU] (
OJ 2004 C 101, p. 65
, ‘the notice on the handling of complaints’).
The Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of Articles 101 and 102 TFEU, is responsible for defining and implementing EU competition policy. The Commission has only limited resources, which it must use in taking action against a potentially wide range of conduct which is contrary to competition law. Consequently, in order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and may exercise its discretion in that regard (see, to that effect, judgment of 11 January 2017, Topps Europe v Commission,
T‑699/14
, not published,
EU:T:2017:2
, paragraph
and the case-law cited).
In order to assess the Union interest in further investigation of a case, the Commission must take account of the circumstances of the individual case, especially the matters of law and fact set out in the complaint referred to it (see judgment of 17 May 2001, IECC v Commission,
C‑450/98 P
,
EU:C:2001:276
, paragraph
and the case-law cited). In particular, it must, after evaluating with all due care the matters of fact and of law put forward by the complainant, weigh the significance of the alleged infringement as regards the functioning of the internal market against the probability of its being able to establish the existence of the infringement and the extent of the investigative measures necessary in order to fulfil in the best conditions its task of ensuring the observance of Articles 101 and 102 TFEU (judgments of 18 September 1992, Automec v Commission,
T‑24/90
,
EU:T:1992:97
, paragraph
, and of 12 September 2007, UFEX and Others v Commission,
T‑60/05
,
EU:T:2007:269
, paragraph
).
However, given that the assessment of the Union interest raised by a complaint depends on the circumstances of each individual case, the number of assessment criteria to which the Commission may refer should not be limited, nor, conversely, should the Commission be required to have recourse exclusively to certain criteria. In view of the fact that, in an area such as that governed by competition law, the legal and factual context may vary considerably from one case to another, it is possible to apply criteria which may vary considerably, and not predetermined criteria which must be applied, or to apply criteria which had not hitherto been envisaged or to give priority to a single criterion in assessing the Union interest (see, to that effect, judgments of 19 September 2013, EFIM v Commission,
C‑56/12 P
, not published,
EU:C:2013:575
, paragraph
and the case-law cited, and of 11 January 2017, Topps Europe v Commission,
T‑699/14
, not published,
EU:T:2017:2
, paragraph
and the case-law cited; see, also point 43 of the notice on the handling of complaints).
In addition, the Court notes the case-law according to which the Commission may take a decision to take no further action on a complaint for lack of a sufficient Union interest not only before commencing an investigation of the case but also after taking investigative measures, if that course seems appropriate to it at that stage of the procedure (see, to that effect, judgments of 17 May 2001, IECC v Commission,
C‑449/98 P
,
EU:C:2001:275
, paragraph
, and of 24 January 1995, BEMIM v Commission,
T‑114/92
,
EU:T:1995:11
, paragraph
; see, also, point 45 of the notice on the handling of complaints).
The Commission’s discretion is not unlimited, however. First, in order to assess the Union interest in further investigation of a case, the Commission must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention (see judgments of 17 May 2001, IECC v Commission,
C‑450/98 P
,
EU:C:2001:276
, paragraph
and the case-law cited, and of 11 July 2013, BVGD v Commission,
T‑104/07 and T‑339/08
, not published,
EU:T:2013:366
, paragraph
and the case-law cited; see, also, point 42 of the notice on the handling of complaints). In that regard, it follows from settled case-law that where the institutions have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 21 January 2015, easyJet Airline v Commission,
T‑355/13
,
EU:T:2015:36
, paragraph
and the case-law cited).
Secondly, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the General Court effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (judgment of 4 March 1999, UFEX and Others v Commission,
C‑119/97 P
,
EU:C:1999:116
, paragraphs
and
, and order of 31 March 2011, EMC Development v Commission,
C‑367/10 P
, not published,
EU:C:2011:203
, paragraph
).
Lastly, it must be pointed out that review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it in the handling of complaints must not lead them to substitute their assessment of the Union interest for that of the Commission, but seeks to verify that the contested decision is not based on materially incorrect facts and is not vitiated by an error of law, manifest error of appraisal or misuse of powers (see judgment of 15 December 2010, CEAHR v Commission,
T‑427/08
,
EU:T:2010:517
, paragraph
and the case-law cited). The General Court cannot substitute its own assessment of the Union interest for that of the Commission by considering whether criteria other than those applied by the Commission in the contested decision should have led it to conclude that there was a Union interest in continuing its investigation of the case (see judgments of 17 December 2014, Si.mobil v Commission,
T‑201/11
,
EU:T:2014:1096
, paragraph
(not published), and of 30 September 2016, Trajektna luka Split v Commission,
T‑70/15
,
EU:T:2016:592
, paragraph
(not published)). Similarly, it is settled case-law, in the case of the rejection of complaints, that the Commission’s assessments concerning allegations of infringement of Article 101 TFEU or Article 102 TFEU involve complex economic appraisals, all the more so when the Commission carries out prospective analyses, the review of which by the Courts of the European Union is limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated, and whether there has been any manifest error of appraisal or a misuse of powers (see judgment of 27 September 2006, Haladjian Frères v Commission,
T‑204/03
,
EU:T:2006:273
, paragraph
and the case-law cited; judgment of 11 July 2013, Spira v Commission,
T‑108/07 and T‑354/08
, not published,
EU:T:2013:367
, paragraph
).
The applicant’s objections must be examined in the light of those principles governing Commission decisions rejecting complaints.
In the present case, the applicant, in essence, submits that the Commission ought to have given effect to the judgments in T‑168/01 and C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, in accordance with Article 105 TFEU read in conjunction with Article 7 of Regulation No 1/2003, either by examining whether the anti-competitive conduct by object could be exempted on the basis of Article 101(3) TFEU, or by prohibiting the agreement and preventing the conduct from being repeated. In other words, the applicant submits that the Commission ought to have taken a final decision as to the existence or non-existence of the infringement alleged in the 1999 complaint.
In the first place, it must be borne in mind, first, that, in accordance with the settled case-law cited in paragraphs 71 to 79 above, the Commission has a discretion in the investigation of cases stemming from a complaint and that it is not required take a final decision as to the existence or non-existence of the infringement alleged in the complaint. The obligation of the Commission to take into consideration all the relevant matters of law and of fact in order to decide what action to take in response to a complaint relates, as regards a complaint rejected on the ground of a lack of sufficient Union interest, not to the constituent elements of an infringement of Article 101 TFEU or Article 102 TFEU, but to the matters relevant to the test used in order to conclude that there was an insufficient Union interest (judgment of 11 July 2013, Spira v Commission,
T‑108/07 and T‑354/08
, not published,
EU:T:2013:367
, paragraph
).
Accordingly, given that in law the Commission is not required to adopt a final decision as to the existence or non-existence of the infringement alleged in a complaint, it must be held that, notwithstanding the merits of the claim alleging a misinterpretation of the effects of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, the applicant cannot maintain that the Commission had to rule definitively on the existence or non-existence of an infringement of the provisions of Article 101 TFEU and, more specifically, adjudicate on whether conduct which infringes Article 101(1) TFEU nonetheless fulfils the four conditions for obtaining an individual exemption under Article 101(3) TFEU.
Secondly, moreover, it must be borne in mind that the existence of the Commission’s discretion does not depend on the more or less advanced stage of the investigation of a case. In accordance with the case-law cited in paragraph 75 above, the Commission may take a decision to take no further action on a complaint for lack of a sufficient Union interest not only before commencing an investigation of a case but also after taking investigative measures, if that course seems appropriate to it at that stage of the procedure. Consequently, the Commission’s discretion applies whatever the stage of the procedure, irrespective of whether the examination sought concerns a new complaint or, as in the present case, a complaint underway before the Commission following proceedings before the Courts of the European Union.
In the second place, as regards more specifically the alleged infringement of Article 101 TFEU read in conjunction with 105 TFEU, it is indeed for the Commission to ensure the application of the principles laid down in Article 101 TFEU by investigating cases of suspected infringement and by ‘propos[ing] appropriate measures to bring it to an end.’ However, in the present case, not only had the application of the agreement been suspended from October 1998 by the Tribunal de Defensa de la Competencia (Competition Tribunal), but the Commission verified that there were no persisting effects on the market from GSK’s conduct in 1998 and that there was no risk of the infringement being repeated either (see paragraphs 18 to 20 above).
In the third place, as regards the alleged infringement of Article 7 of Regulation No 1/2003 and of respect for the principle of legal certainty owing to the failure to replace Articles 3 and 4 of the 2001 decision, as the Commission observes Article 7 of that regulation provides that it ‘may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end’, thereby leaving it discretion when determining the course of action to be followed when enforcing competition law. The Commission found that since there was no Union interest in conducting a review of an agreement that had long lapsed with no persisting effects, there was no need to adopt a decision under Article 7 of Regulation No 1/2003. In that regard, the Court will examine the legality of the contested decision in the light of the absence of a sufficient Union interest in continuing with the examination of the complaint, when it examines the second plea in law (see paragraphs 97 to 138 below).
In the fourth place, as regards the applicant’s reference to Article 11(6) of Regulation No 1/2003, it must be noted that the Commission’s decision to initiate a procedure with a view to adopting a decision had the effect of relieving the Spanish competition authority of its competence to apply Article 101 TFEU in this case. However, contrary to the applicant’s claims, merely because a procedure has been initiated and the Spanish competition authority relieved of its competence cannot mean that the Commission was obliged to adopt a decision under Article 7 of Regulation No 1/2003. As stated in paragraph 83 above, the Commission may take a decision to take no further action on a complaint for lack of a sufficient Union interest even after taking investigative measures, if that course seems appropriate to it at that stage of the procedure. In addition, there is nothing to preclude the Spanish competition authority from recovering its competence to apply Article 101 TFEU, following the rejection of the 1999 complaint. It is apparent from the case-law that Article 11(6) of Regulation No 1/2003 does not cause the national competition authorities to lose their power permanently, but only during the duration of the procedure before the Commission (see, to that effect, judgment of 14 February 2012, Toshiba Corporation and Others,
C‑17/10
,
EU:C:2012:72
, paragraphs
to
).
Furthermore, in the fifth place, it must be pointed out that, as the Commission states in its observations, following the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, it re-assessed the case and undertook a series of actions which resulted, in particular, in the opening of a separate investigation regarding current pricing practices related to parallel trade in Spain (Case AT.39973 —
Pricing schemes for distribution of medicines in Spain
). It is, therefore, incorrect to state that the Commission decided to ‘abandon’ the case, as the applicant claims.
The second part of the first plea in law must, therefore, be rejected as unfounded.
–
Third part of the first plea in law, alleging failure to state sufficient reasons and a breach of the right to be heard
First, the applicant submits that the Commission failed to fulfil its obligation to state reasons, within the meaning of Article 296 TFEU, in particular by not disclosing in the contested decision the reasons why it considered that Article 1 of the 2001 decision had also been annulled by the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P.
Secondly, the applicant submits that in the absence of any reference to the effects of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P in the letter of 6 June 2013, whereby the Commission had informed it of its intention to reject the 1999 complaint, it never had the opportunity to submit its written observations on the interpretation of the effects of those judgments, and that there was thus a breach of its right to be heard under Article 27 of Regulation No 1/2003 and Article 11 of Regulation No 773/2004.
In the first place, as regards the objection alleging a failure to state reasons, it must be borne in mind that, according to settled case-law, the statement of reasons for a measure must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (see judgment of 29 September 2011, Elf Aquitaine v Commission,
C‑521/09 P
,
EU:C:2011:620
, paragraph
and the case-law cited).
In the present case, it is apparent from the grounds of the contested decision that the Commission found that additional action by it was not in the Union interest for reasons clearly set out in that decision (see paragraphs 18 to 21 above) and in the letter of 6 June 2013 sent under Article 7(1) of Regulation No 773/2004. Accordingly, the Commission set out the facts justifying the contested decision and the legal considerations on the basis of which it was adopted (see, to that effect, judgment of 9 March 2012, Comité de défense de la viticulture charentaise v Commission,
T‑192/07
, not published,
EU:T:2012:116
, paragraph
and the case-law cited). The fact that the Commission did not correctly or sufficiently analyse the effects of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P in no way changes that finding (see, also, paragraph 106 below). In addition, it must be noted in that regard that the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned in support of their complaint. It only needs to set out the facts and legal considerations which are of decisive importance in the context of the decision (see judgment of 12 July 2007, AEPI v Commission,
T‑229/05
, not published,
EU:T:2007:224
, paragraph
and the case-law cited; see also, to that effect, judgment of 17 January 1984, VBVB and VBBB v Commission,
43/82 and 63/82
,
EU:C:1984:9
, paragraph
). The applicant cannot, therefore, validly claim that there is a lack of reasoning in that regard in the contested decision.
In the second place, as regards the alleged infringement of the right to be heard, the Court points out that it is apparent from the case-law that the procedure initiated following a complaint does not constitute adversary proceedings between the companies concerned; it is a procedure commenced by the Commission, upon application, in fulfilment of its duty to ensure that the rules on competition are observed. It follows that the companies which are the object of the investigation and the companies which have submitted a complaint are not in the same procedural situation and the latter cannot invoke the right to a fair hearing. The complainants must, on the other hand, be given the opportunity to defend their legitimate interests in the course of the procedure initiated by the Commission and thereby be closely associated with that procedure, even if the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the object of the Commission’s investigation (see, to that effect, judgments of 17 November 1987, British American Tobacco and Reynolds Industries v Commission,
142/84 and 156/84
,
EU:C:1987:490
, paragraphs
and
, and of 30 November 2000, Industrie des poudres sphériques v Commission,
T‑5/97
,
EU:T:2000:278
, paragraph
; see, also, recital 8 of Regulation No 773/2004 and point 59 of the notice on the handling of complaints). It is also clear from the case-law that third parties cannot claim a right of access to the file held by the Commission on the same basis as the undertakings under investigation (judgments of 15 July 1994, Matra Hachette v Commission,
T‑17/93
,
EU:T:1994:89
, paragraph
; of 30 March 2000, Kish Glass v Commission,
T‑65/96
,
EU:T:2000:93
, paragraph
; and of 30 November 2000, Industrie des poudres sphériques v Commission,
T‑5/97
,
EU:T:2000:278
, paragraph
; see, also, point 59 of the notice on the handling of complaints). It is also apparent from points 7, 8, 30 and 31 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (
OJ 2005 C 325, p. 7
) that the complainants’ right of access is limited solely to the documents on which the Commission bases its provisional assessment and does not have the same scope as the right of access to the Commission file afforded to persons, undertakings and associations of undertakings that have been sent a statement of objections by the Commission, which relates to all documents which have been obtained, produced or assembled by the Commission during the investigation.
In the present case, by its letter of 6 June 2013 sent under Article 7(1) of Regulation No 773/2004, the Commission indicated the decisive factors as regards the lack of Union interest in continuing with the examination of the complaint, and the interpretation of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P was not one of those decisive factors in the context of its provisional assessment. In that regard, the applicant has not shown how it had been precluded from submitting its written observations on the effects of the abovementioned judgments, given that in its letter of 18 July 2013, first, it summarises the Commission’s letter of 6 June 2013 as ‘describ[ing] the steps taken by the Commission following the judgment of the European Court of Justice’ and, secondly, at point 4.3, entitled ‘The Commission’s obligation under Article 266 TFEU’, it sets out its reading of the effects of those judgments without challenging the lack of any analysis of those judgments in the Commission’s letter.
Accordingly, none of the alleged infringements relied on by the applicant in the context of the third part of the first plea in law is established.
For the reasons set out in paragraphs 47 to 95 above, the first plea in law must be rejected in its entirety as unfounded.
Second plea in law, alleging a manifest error of assessment in the application of Articles 101 and 105 TFEU, failure to state reasons, contrary to Article 296 TFEU, when evaluating the existence of a Union interest, and a breach of the applicant’s right to be heard
By its second plea in law, which is put forward in the alternative, the applicant disputes all the assessments that led the Commission to reject the 1999 complaint for lack of sufficient Union interest. More specifically, it maintains that the Commission infringed Articles 101 and 105 TFEU when assessing the Union interest, infringed the obligation to state reasons within the meaning of Article 296 TFEU and infringed the fundamental right to be heard concerning the assessment of the Union interest in continuing with an investigation.
First of all, while acknowledging that the Commission has a degree of discretion as regards rejecting a complaint, the applicant submits that the present case has a ‘special feature’, in particular because the Commission has adopted a decision which has been the subject of two important judgments of the Court of Justice of the European Union, in the light of which it cannot be concluded that there is no Union interest.
Next, referring to the different criteria which have been considered relevant in the case-law for the purposes of assessing the Union interest, the applicant concludes that the contested decision erroneously and selectively refers to only three reasons on which the Commission relies in order to find a lack of Union interest: first, the fact that the conduct alleged in the 1999 complaint had ceased many years ago, secondly, the fact that the infringement at issue is not producing persisting effects and, thirdly, the fact that the case had been, and could still be, handled by national courts and authorities.
The second plea may, therefore, be divided, in essence, into four parts.
The first part of the second plea in law, alleging the existence of a Union interest solely on account of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P
The applicant submits that there is a Union interest solely on account of the special feature of the present case that distinguishes it from previous cases analysed thus far by the Courts of the European Union concerning the Union interest in continuing with the examination of the complaint, namely the fact that the Commission adopted a decision which has been the subject of two judgments delivered by the Court of Justice and the General Court — in this case the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P — which have been widely discussed in the legal literature.
In order to respond to the applicant’s arguments, in accordance with the case-law, it must be verified that the contested decision, rejecting the 1999 complaint on the basis of Article 7(2) of Regulation No 773/2004, is not based on facts which have not been accurately stated and that it is not vitiated by an error of law, a manifest error of appraisal or a misuse of powers (see, to that effect, judgment of 15 December 2010, CEAHR v Commission,
T‑427/08
,
EU:T:2010:517
, paragraph
and the case-law cited). The General Court cannot substitute its own assessment of the Union interest for that of the Commission by considering whether criteria other than those applied by the Commission in the contested decision should have led it to conclude that there was a Union interest in continuing its investigation of the case (judgment of 17 December 2014, Si.mobil v Commission,
T‑201/11
,
EU:T:2014:1096
, paragraph
(not published)).
In the present case, in the first place, the fact that the Commission did not take into account the effects of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P for the purposes of assessing whether there was a Union interest is not unlawful. As has already been pointed out, first, the Commission has a discretion as regards the choice of the criteria to which it may refer in order to assess whether there is such an interest (see judgment of9 March 2012, Comité de défense de la viticulture charentaise v Commission,
T‑192/07
, not published,
EU:T:2012:116
, paragraph
) and, secondly, as has been found in paragraph 66 above, in the context of the very specific factual background of the present case, the Commission was entitled to assess the Union interest as at the date on which the contested decision was adopted, in the light of the new circumstances.
In the second place, it must indeed be found that, as the applicant submits, the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P have given rise to legal interest in relation to the analysis of the dual-pricing systems in the light of Article 101 TFEU. However, that finding cannot in itself give grounds for continuing to examine the applicant’s complaint. The subject matter of the contested decision does not concern whether there is an abstract and academic interest arising from the compliance with those two judgments, but whether there is a specific and genuine interest justifying the Commission’s resources being made available in order to act further on the 1999 complaint, having regard to all the relevant circumstances.
In the light of the foregoing, the General Court cannot substitute its own assessment of the Union interest for that of the Commission by taking into account another criterion, namely the fact that the Court of Justice has delivered a judgment involving the same subject matter as the 1999 complaint, notwithstanding the fact that that judgment is unquestionably relevant for the purposes of examining the 1999 complaint as to the substance. In other words, that additional criterion relied on by the applicant cannot in itself prevent the Commission from concluding that there is not a sufficient Union interest on the basis of other considerations, in particular the three considerations set out in paragraph 99 above and examined below.
Lastly, even if the applicant’s argument must be understood as being also directed, as regards the existence of a Union interest, at a failure by the Commission to have regard to the scope of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, in that they partially maintain in force the 2001 decision, the error committed in the contested decision, found in paragraphs 62 to 64 above, must be borne in mind. It remains to be assessed whether that error was capable of having a decisive effect, in the circumstances of the case, on the Commission’s assessment of whether there was a sufficient Union interest in pursuing the investigation of the complaint (see, to that effect, judgments of 14 May 2002, Graphischer Maschinenbau v Commission,
T‑126/99
,
EU:T:2002:116
, paragraphs
and
, and of 12 September 2007, UFEX and Others v Commission,
T‑60/05
,
EU:T:2007:269
, paragraphs
and
). In the present case, it is apparent from recital 23 of the contested decision that, in order to conclude that there was a lack of Union interest, the Commission relies on three criteria relating to the cessation of the conduct at issue in October 1998, the absence of persisting effects and the fact that the national courts and authorities were well placed to handle the issues raised. The Commission was, in that regard, entitled to limit the number of criteria to which it intended to refer to the three in question (see, to that effect, judgments of 17 May 2001, IECC v Commission,
C‑449/98 P
,
EU:C:2001:275
, paragraphs
to
, and of 24 November 2011, EFIM v Commission,
T‑296/09
, not published,
EU:T:2011:693
, paragraph
). Accordingly, the effect which the Commission’s incorrect assessment of the scope of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P and, therefore, of that of the 2001 decision, may have had must be assessed in the light of the three criteria applied in the contested decision. However, none of those criteria may be decisively affected, in their application, by the partial maintenance in force of the 2001 decision. The existence of the 2001 decision, which is a legal circumstance, does not affect the persistence of the conduct at issue or its effects, which is a factual circumstance. The same is true as regards the intervention of the national authorities and courts, which remains possible, as was noted in paragraph 86 above, even after the Commission has itself taken a decision on the conduct at issue (judgment of 14 February 2012, Toshiba Corporation and Others,
C‑17/10
,
EU:C:2012:72
, paragraphs
to
). Furthermore, it is also apparent from recitals 39 to 41 of the contested decision that the Commission examines that criterion only in the light of the possible application by the national authorities and courts of Article 101(3) TFEU, which it is common ground the 2001 decision, having been annulled in part, does not apply.
The first part of the second plea in law must, therefore, be rejected as unfounded.
The second part of the second plea in law, alleging a manifestly incorrect assessment and a failure to state reasons by the Commission regarding the cessation of GSK’s conduct in 1998 as a criterion for assessing whether there was a Union interest
First, the applicant complains that the Commission failed to examine and properly state reasons for its conclusions, in particular in recitals 24 and 25 of the contested decision, that the infringement had already ceased in 1998 and had lasted only seven months (from 9 March to 16 October 1998), whereas the Commission relied on that limited duration and the disappearance of the risk of a repetition of the infringement by GSK to justify the lack of Union interest. Secondly, the applicant notes a contradiction between the fact that the conduct had ceased in October 1998 and the Commission’s decision to continue with the investigation after that date, between 1998 and 2009, in adopting the 2001 decision and defending it before the Courts of the European Union.
According to the case-law, the Commission may decide that it is not appropriate to investigate a complaint where the alleged practices have ceased. In addition, the Commission may find that there is no longer a sufficient Union interest when the undertakings concerned agree to amend their conduct in a manner conducive to the general interest (judgment of 17 May 2001, IECC v Commission,
C‑449/98 P
,
EU:C:2001:275
, paragraphs
and
; see, also, point 44, sixth indent, of the notice on the handling of complaints).
In the present case, in the first place, the applicant’s objection alleging a manifestly erroneous assessment and a failure to state reasons relating to the cessation of the conduct in 1998 cannot be upheld. First, the fact that GSK’s conduct actually came to an end in October 1998 is not directly challenged by the applicant and it does not put forward any specific evidence which proves the contrary. Secondly, the statement of reasons of the contested decision is sufficient in that regard, since, in recital 7 of the contested decision, it is clearly stated that the application of the disputed clauses of the agreement had been suspended by the Tribunal de Defensa de la Competencia (Competition Tribunal) on 16 October 1998 and that GSK had refrained from implementing them from the date of the suspension until the date of the 2001 decision. Thirdly, in recital 24 of the contested decision, the Commission mentions that nothing in the file seems to indicate that GSK was planning to implement those measures again in Spain.
In the second place, it must be found that the date of the cessation of the conduct cannot be called in question by the Commission’s decision to defend the 2001 decision until the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P was delivered in 2009. That alleged contradiction in no way proves that GSK’s conduct had not ceased and, therefore, that the Commission erroneously concluded that the conduct had no longer been implemented since that date.
In those circumstances, since the applicant has failed to provide specific evidence that the conduct had continued to exist after 16 October 1998 or that GSK intended to implement those measures again in Spain, the Commission did not vitiate the contested decision by a manifest error of assessment in finding that GSK’s conduct had in fact ceased in 1998.
The second part of the second plea in law must, therefore, be rejected.
The third part of the second plea in law, alleging a manifestly incorrect assessment by the Commission of the lack of persistent effects in the Spanish market resulting from the agreement
The applicant submits, in essence, that the anti-competitive effects of the infringement continue to be very much present in the Spanish market as a result of the many dual-pricing systems currently being implemented by most manufacturers of pharmaceutical products. According to the applicant, the Commission’s reasoning in recitals 27 to 37 of the contested decision is vitiated by such serious and manifest errors of assessment that the Commission could not properly conclude that there was no Union interest. In particular, the applicant disputes the finding that there is no causal link between GSK’s practices and the subsequent introduction of dual pricing by other manufacturers (recitals 27 and 28 of the contested decision).
According to settled case-law, in deciding to take no further action for lack of Union interest on a complaint against practices alleged to be contrary to the FEU Treaty, the Commission cannot rely solely on the fact that those practices have ceased, without having ascertained that anti-competitive effects have ceased and, if appropriate, that the seriousness of the alleged interferences with competition or the persistence of their consequences has not been such as to give the complaint a Union interest (judgments of 4 March 1999, Ufex and Others v Commission,
C‑119/97 P
,
EU:C:1999:116
, paragraph
, and of 14 February 2001, SEP v Commission,
T‑115/99
,
EU:T:2001:54
, paragraph
; see, also, point 44, fifth indent, of the notice on the handling of complaints). That case-law only applies where the Commission bases its decision on the fact that the alleged anti-competitive practices have ceased (judgments of 12 September 2007, UFEX and Others v Commission,
T‑60/05
,
EU:T:2007:269
, paragraph
, and of 11 July 2013, Spira v Commission,
T‑108/07 and T‑354/08
, not published,
EU:T:2013:367
, paragraph
).
In the first place, it is apparent from the foregoing that the Commission was fully entitled not simply to find, in the contested decision, that the agreement had ceased in 1998 but also verified that the anti-competitive effects did not persist.
In the second place, it must be held that the applicant has not adduced any specific evidence proving that the capacity of Spanish wholesalers to export medicines which were directly affected by the dual-pricing clause applied by GSK in 1998 was restricted or that the extent of that restriction in 1998 was such that the anti-competitive effects had persisted in the Spanish market. The Commission did not, therefore, commit a manifest error of assessment, in recital 26 of the contested decision, in concluding that ‘the purchase prices and volumes that Spanish wholesalers currently face in order to export those 82 medicines are determined by today’s market dynamics rather than by GSK’s conduct in 1998’.
In the third place, it must be stated that the case-law cited in paragraph 115 above is directed essentially at the anti-competitive effects directly linked to the alleged anti-competitive practices which ceased and are the subject matter of the 1999 complaint. Anti-competitive effects cannot, therefore, generally, be proved by reference to third-party practices. However, anti-competitive effects are not precluded from being examined in the light of the practices carried out by third parties, when a causal link between those practices and the practice the subject matter of the complaint is clearly proven. However, in the present case, the applicant provides no evidence capable of proving a causal link between GSK’s practices carried out in 1998 and the subsequent establishment of dual pricing by other manufacturers. In addition, the fact that those practices of the other undertakings potentially give rise to the same competition problems as those of the case forming the subject matter of the 1999 complaint has no bearing in itself, since the fact that conduct is comparable in two cases does not mean that the conduct in one case triggered or influenced that in the other.
In the fourth place, the Court must also reject the contention that such a causal link between those practices could be proven from the fact that Commission’s alleged inaction in the case forming the subject matter of the 1999 complaint ‘
de facto
gave … a green light’ to introduce export restrictions in Spain. First, as the Commission correctly observes, the fact of not adopting a decision on an infringement cannot in itself be determinative of the self-assessment carried out by the undertakings under Article 101(3) TFEU, since that self-assessment should be based on the current market circumstances, not on a decision rejecting a complaint for lack of Union interest concerning an infringement which ceased producing effects in 1998. Secondly, the Commission’s action following the delivery of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P (see paragraph 14 above) and the opening of a new investigation concerning alleged dual-pricing practices in Spain by undertakings other than GSK (AT.39973 —
Pricing schemes for distribution of medicines in Spain
) cannot be perceived by the other undertakings as ‘inaction’ giving them the green light to introduce export restrictions in Spain.
In the fifth place, it must be held that a contradiction cannot be discerned between, on the one hand, recital 28 of the contested decision, according to which the alleged widespread use of dual-pricing systems by manufacturers in Spain is linked, among other factors, to the legislative measures introduced during the GSK case, in particular the Ley 29/2006 de garantías y uso racional de los medicamentos y productos sanitarios (Law No 29/2006 on the guarantees and rational use of medicines and health products), of 26 July 2006 (BOE No 178 of 27 July 2006, p. 28122), and, on the other hand, the rejection by the Commission’s letter dated 4 November 2008 of another complaint filed by the applicant in respect of those new legislative changes introduced by Law No 29/2006. First, it is apparent from the wording of recital 28 of the contested decision that those legislative measures are one of the factors, not the only factor, for the alleged use of dual-pricing systems and, secondly, that contradiction pertains to considerations which exceed the scope of the 1999 complaint and which, in any event, cannot prove the persisting effects of the practice disputed in the present case.
In the light of the foregoing, the applicant’s argument that GSK’s conduct continues to have anti-competitive effects is unfounded, since the applicant has failed to establish the existence of a causal link between the system briefly implemented by GSK in 1998 and the alleged ‘anti-competitive effects’ resulting from practices currently implemented by other pharmaceutical manufacturers.
It must, therefore, be concluded that it is not proven that the Commission committed a manifest error of assessment relating to the absence of persisting effects in the Spanish market stemming from the agreement.
The fourth part of the second plea in law, alleging a manifestly incorrect assessment by the Commission relating to the fact that the case forming the subject matter of the 1999 complaint might properly be brought before the national authorities
The applicant submits that, contrary to the Commission’s contention, the case forming the subject matter of the 1999 complaint cannot be effectively brought before the national authorities, since they are not well placed to assess a case of this nature. In the applicant’s view, the Commission is generally better placed than the national authorities. First, it has the relevant evidence in the case. Secondly, because of its particular nature, parallel trade by definition affects several Member States. Thirdly, it is indisputable that the Spanish authorities and courts do not have the necessary means, knowledge or even experience to obtain and analyse the complex economic data that would be essential in the context of an analysis carried out pursuant to Article 101(3) TFEU. Fourthly, the applicant observes that the Commission manifestly misinterpreted Articles 5 and 10 of Regulation No 1/2003 by stating that the Spanish competition authority could ‘adopt a valid decision concerning Article 101(3) TFEU in the GSK case’. According to the applicant, under Article 5 of Regulation No 1/2003, the national authorities cannot adopt individual decisions stating that the conditions of Article 101(3) TFEU are fulfilled and, under Article 10 of that regulation, only the Commission may by decision find that the four conditions set out in Article 101(3) TFEU are applicable. Fifthly, the Commission was also better placed to examine and adopt a decision relating to Article 101(3) TFEU, in order to ensure, first, administrative efficiency, given that the Commission had already invested a serious amount of effort in that case and, secondly, legal certainty for the national competition authorities when faced with similar cases in the future.
In the first place, it must be borne in mind that Articles 4 and 5 of Regulation No 1/2003 provide that the Commission and the competition authorities of the Member States have parallel powers for the purpose of the application of Articles 101 and 102 TFEU and that the system established by Regulation No 1/2003 is based on close cooperation between the Commission and those authorities (judgment of 16 October 2013, Vivendi v Commission,
T‑432/10
, not published,
EU:T:2013:538
, paragraph
). Accordingly, in the context of its assessment, the Commission may also take into account the measures undertaken by the national authorities (see judgment of 3 July 2007, Au Lys de France v Commission,
T‑458/04
, not published,
EU:T:2007:195
, paragraph
and the case-law cited). The Commission can reject a complaint on the ground that the complainant can bring an action to assert its rights before national courts and authorities (see, to that effect, judgments of 18 September 1992, Automec v Commission,
T‑24/90
,
EU:T:1992:97
, paragraphs
to
; of 24 January 1995, Tremblay and Others v Commission,
T‑5/93
,
EU:T:1995:12
, paragraphs
to
; and of 9 January 1996, Koelman v Commission,
T‑575/93
,
EU:T:1996:1
, paragraphs
and
; see, also, notice on the handling of complaints, point 44, first indent, and Chapter II). On the other hand, neither Regulation No 1/2003 nor the Commission Notice on cooperation within the Network of Competition Authorities (
OJ 2004 C 101, p. 43
) provides for a rule for dividing up competences between the Commission and the Member States’ competition authorities or creates rights or expectations for an undertaking to have its case dealt with by a specific competition authority (judgments of 13 July 2011, ThyssenKrupp Liften Ascenseurs v Commission,
T‑144/07, T‑147/07 to T‑150/07 and T‑154/07
,
EU:T:2011:364
, paragraph
, and of 17 December 2014, Si.mobil v Commission,
T‑201/11
,
EU:T:2014:1096
, paragraphs
and
).
Accordingly, even on the assumption, as the applicant argues, that the Commission is particularly well placed to deal with a case and the national authorities are less well placed to do so, complainant undertakings, such as the applicant, do not have a right to have their case dealt with by the Commission (see, to that effect, judgments of 17 December 2014, Si.mobil v Commission,
T‑201/11
,
EU:T:2014:1096
, paragraph
, and of 30 September 2016, Trajektna luka Split v Commission,
T‑70/15
,
EU:T:2016:592
, paragraph
(not published)).
In the second place, it must be borne in mind that it is apparent from the preamble to Regulation No 1/2003, in particular recitals 1, 6, 8 and 35 thereto, that the purpose of the greater participation of the competition authorities of the Member States in the implementation of Articles 101 and 102 TFEU and the obligation they are under to apply those provisions when trade between Member States is liable to be affected is precisely to ensure that the objective pursued by the regulation, namely the effective application of EU competition rules, is attained. Accordingly, the requirement to ensure the effective application of EU competition rules cannot, without calling into question the scope of Article 13 of Regulation No 1/2003, under which the Commission may reject a complaint on the ground that a competition authority of a Member State is dealing with the case, have the effect of imposing an obligation on the Commission to verify, in implementing that particular provision, whether the competition authority concerned has the institutional, financial and technical means available to it to enable it to accomplish the task entrusted to it by that regulation (judgment of 17 December 2014, Si.mobil v Commission,
T‑201/11
,
EU:T:2014:1096
, paragraphs
and
).
Consequently, having regard to the system of cooperation established by Regulation No 1/2003 between the Commission and the competition authorities of the Member States, it must be held that the Commission could, without committing an error of assessment, presume that the national authorities had the ability to implement effectively the rules, standards and policies forming the EU legal framework (see, to that effect, judgment of 30 September 2016, Trajektna luka Split v Commission,
T‑70/15
,
EU:T:2016:592
, paragraph
) and, in particular, find that the Spanish national authorities were in a position to take action in the case concerned with the 1999 complaint at the national level, by obtaining all the necessary evidence, including having recourse to the cooperation mechanisms referred to in Articles 12 and 15 of Regulation No 1/2003. Further, and in any event, the evidence produced by the applicant before the Commission, in particular that relating to an alleged lack of necessary expertise in order to conduct an economic analysis or to a difficulty in obtaining essential information, does not prove sufficiently that there are institutional shortcomings within the Spanish competition authority which would prevent it from carrying out that task.
Similarly, it has not been proven that the Spanish courts would not be capable of verifying whether the decisions of the Spanish competition authority were lawful. As the Commission correctly observes, none of the proceedings pending concerning alleged dual-pricing practices in Spain, which the applicant relies on, can prove the alleged inability of the Spanish courts to apply Article 101(3) TFEU correctly. First, none of those judicial proceedings concern the agreement and, secondly, as regards those which concern practices allegedly carried out by other undertakings, it is not apparent from the evidence provided by the applicant that the national courts incorrectly interpreted the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P. By way of illustration, the judgment of the Tribunal Supremo (Supreme Court, Spain) delivered on 3 December 2014 in Case No 4792/2011,
Pharma
v
Pfizer SLU
, which refers moreover to those judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, even if principally concerned with the interpretation of Article 101(1) TFEU, shows that that court has all the means necessary to carry out an analysis in accordance with the case-law derived from those judgments, also, if necessary, in the light of Article 101(3) TFEU.
In the third place, it must be pointed out that even if the disputed practice affects the territory of several Member States, because of the specific nature of the parallel trade, that fact cannot be sufficient in itself to conclude that the 1999 complaint had sufficient Union interest. If that were not the case, the Commission would be required to act on any complaint concerning an alleged infringement encompassing several Member States, irrespective of the assessment of the other criteria for evaluating the Union interest and whether or not the complaint is well founded (see, to that effect, judgments of 12 September 2007, UFEX and Others v Commission,
T‑60/05
,
EU:T:2007:269
, paragraph
, and of 13 September 2012, Protégé International v Commission,
T‑119/09
, not published,
EU:T:2012:421
, paragraph
). It follows from this that the transnational scope of the conduct at issue is not sufficient in itself to confer a Union interest.
In the fourth place, as regards the application of Article 5 of Regulation No 1/2003, it is clear from the wording of that article that ‘the competition authorities of the Member States shall have the power to apply Articles [101] and [102 TFEU] in individual cases’ and that, ‘for this purpose, acting on their own initiative or on a complaint, they may take the following decisions: … requiring that an infringement be brought to an end, … ordering interim measures, … accepting commitments [and] imposing fines, periodic penalty payments or any other penalty provided for in their national law’. In accordance with the second paragraph of Article 5 of Regulation No 1/2003, the national competition authorities ‘may likewise decide that there are no grounds for action on their part’. In addition, it must be borne in mind that Regulation No 1/2003 brought to an end the centralised scheme of Regulation No 17, which was based on a system of notification by means of a request for negative clearance or, failing that, for individual exemption, by replacing it by a directly applicable exception system, in which the competition authorities and courts of the Member States have the power to apply not only Articles 101(1) and 102 TFEU, but also Article 101(3) TFEU (see recitals 3 and 4 of Regulation No 1/2003). Accordingly, contrary to the applicant’s claims, the national competition authorities may clearly assess whether the conditions laid down in Article 101(3) TFEU are met.
That conclusion cannot be called in question by the applicant’s argument that, on the basis of Article 10 of Regulation No 1/2003, and in accordance with the judgment of 3 May 2011, Tele2 Polska (
C‑375/09
,
EU:C:2011:270
), only the Commission may find, by way of decision, that the four conditions laid down in Article 101(3) TFEU are applicable.
First of all, it must be observed that Article 10 of Regulation No 1/2003 provides that the Commission ‘may by decision find that Article [101 TFEU] is not applicable to an agreement … either because the conditions of Article [101(1) TFEU] are not fulfilled, or because the conditions of Article [101(3) TFEU] are satisfied’. In accordance with the first sentence of that article, such a decision, which does not create or alter the law, but is purely declaratory, may be adopted by the Commission only ‘acting on its own initiative’ and ‘where the [Union] public interest relating to the application of Articles [101 and 102 TFEU] so requires’ (see also recital 14 of Regulation No 1/2003). Given that the contested decision does not conclude that the national authorities may adopt a decision under Article 10 of Regulation No 1/2003, the present objection must also be rejected.
Next, as regards the judgment of 3 May 2011, Tele2 Polska (
C‑375/09
,
EU:C:2011:270
), the Court of Justice did indeed find, in paragraph 32 of that judgment, that ‘a national competition authority [could] not take a decision stating that there has been no breach of Article 102 TFEU’. That case-law applies, by analogy, also to Article 101 TFEU, since the Court of Justice has held that ‘such a “negative” decision on the merits would risk undermining the uniform application of Articles 101 and 102 TFEU’ (judgment of 3 May 2011, Tele2 Polska,
C‑375/09
,
EU:C:2011:270
, paragraph
; see also, to that effect, judgment of 21 January 2015, easyJet Airline v Commission,
T‑355/13
,
EU:T:2015:36
, paragraph
).
However, the fact that a national authority may not adopt decisions finding that there has been no infringement of Article 101 TFEU cannot amount to an inability of the national competition authority to apply Article 101(3) TFEU. More specifically, under the second paragraph of Article 5 of Regulation No 1/2003, a national competition authority may decide, where on the basis of the information in its possession the conditions for prohibition laid down in Article 101 TFEU are not met, that there are no grounds for action on its part. Consequently, a national competition authority may assess whether the conditions laid down in Article 101(3) TFEU are met and, if so, decide that there are no grounds for action.
In addition, it must be pointed out that what matters, for the purposes of assessing whether a case may be validly brought before a national authority, is not the outcome of the review of the complaint by that competition authority, but the fact that it is possible for it to be reviewed by that authority (see, by analogy, judgment of 21 January 2015, easyJet Airline v Commission,
T‑355/13
,
EU:T:2015:36
, paragraph
), which is unquestionably true in the present case.
Lastly, and in the fifth place, as regards the applicant’s argument that the Commission was also required to continue with the investigation since it had removed the Spanish competition authority’s power to continue dealing with the case, first, it must be noted that, according to the case-law of the Court of Justice, Regulation No 1/2003 does not indicate that the opening of a proceeding by the Commission permanently and definitively removes the national competition authorities’ power to apply national legislation on competition matters. The power of the national competition authorities is restored once the proceeding initiated by the Commission is concluded (judgment of 14 February 2012, Toshiba Corporation and Others,
C‑17/10
,
EU:C:2012:72
, paragraphs
to
). Secondly, and in any event, in accordance with recital 18 of Regulation No 1/2003, a possible suspension or closure of a case by a competition authority on the ground that another authority is dealing with it or has already dealt with it ‘should not prevent the Commission from rejecting a complaint for lack of [Union] interest, as the case-law of the Court of Justice has acknowledged it may do, even if no other competition authority has indicated its intention of dealing with the case’.
In the light of the foregoing, it must be concluded that it is not proven that the Commission committed a manifest error of assessment in stating that the case could be brought before the national authorities. It follows that the fourth part of the second plea in law must be rejected.
It follows from all the foregoing that the second plea in law must be rejected in its entirety as unfounded.
The third plea in law, alleging lack of analysis and failure to state sufficient reasons in relation to certain matters of fact and of law communicated to the Commission by the applicant following delivery of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P
The applicant submits that the Commission failed to examine all the matters of law and of fact which the applicant communicated to it after delivery of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, namely those set out in the memoranda submitted by the applicant on 4 March 2010 and 8 October 2011, and that the grounds of the contested decision do not reveal any analysis of those matters by the Commission.
In the first place, as regards the Commission’s alleged failure to examine, it is apparent from the case-law that in order to assess the Union interest in further investigation of a case, the Commission must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. More particularly, it must consider attentively all the matters of fact and of law which the complainant brings to its attention (see paragraph 76 above).
In the present case, it must be recalled that it is apparent from the contested decision that the Commission followed the procedure laid down in Article 7 of Regulation No 773/2004. Thus, in its letter of 6 June 2013, the Commission communicated to the applicant its analysis of the 1999 complaint and enabled it to put forward its arguments. The applicant indeed submitted observations on 18 July 2013, which the Commission took into account in the contested decision. As regards the memoranda submitted by the applicant on 4 March 2010 and 8 October 2011, which form the subject matter of the present plea in law, it is apparent from recital 11 of the contested decision that the Commission ‘carefully reviewed’ them. In that regard, it must be stated that of those two memoranda the first concerned the analysis of GSK’s dual-pricing system, following the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, concluding, in essence, that the agreement cannot be exempted under Article 101(3) TFEU, and the second the need for urgent action by the Commission and suggested courses of action. While it cannot, on the basis of the contents of the contested decision, be confirmed that those memoranda were indeed examined by the Commission, it is apparent from their contents that they do not raise points which had not been raised during the administrative procedure, including that subsequent to the delivery of the judgments in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P. It was, therefore, rightly not essential in order for them to be taken into account for their contents to be expressly referred to in the contested decision. Consequently, the objection that those memoranda were not taken into account must be rejected.
In the second place, as regards the objection alleging a failure to state reasons, according to settled case-law, the statement of reasons for a measure must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (see judgment of 29 September 2011, Elf Aquitaine v Commission,
C‑521/09 P
,
EU:C:2011:620
, paragraph
and the case-law cited). In that regard, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the General Court to review effectively the Commission’s use of its discretion to define priorities (judgment of 21 January 2015, easyJet Airline v Commission,
T‑355/13
,
EU:T:2015:36
, paragraph
), the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (see judgment of 9 March 2012, Comité de défense de la viticulture charentaise v Commission,
T‑192/07
, not published,
EU:T:2012:116
, paragraph
and the case-law cited). Lastly, the Commission is not obliged to adopt a position on all the arguments relied on by the complainant in support of its complaint. It only needs to set out the facts and legal considerations which are of decisive importance in the context of the decision (judgment of 17 January 1984, VBVB and VBBB v Commission,
43/82 and 63/82
,
EU:C:1984:9
, paragraph
; see also, to that effect, judgment of 12 July 2007, AEPI v Commission,
T‑229/05
, not published,
EU:T:2007:224
, paragraph
and the case-law cited).
In the present case, as regards the alleged infringement of the Commission’s obligation to state reasons, even if the Commission did not respond to all of the applicant’s arguments submitted in the two memoranda mentioned in paragraph 142 above, it did, however, clearly explain the reasoning which it had followed, in particular the three criteria set out in recital 23 of the contested decision which led it to conclude that there was a lack of Union interest, thereby enabling the applicant to understand the reasons why its complaint was rejected. As stated in paragraph 142 above, the Commission is not obliged to expressly adopt a position on all the arguments relied on by the complainant in support of its complaint. It only needs to set out the facts and legal considerations which are of decisive importance in the context of the decision.
It is, therefore, apparent from those observations that the Commission complied with its obligation to examine and its obligation to state reasons in setting out in a clear and unequivocal manner the facts and legal considerations which led it to reject the 1999 complaint. Given that those details enable the General Court to review effectively the Commission’s use of its discretion when it adopted the contested decision, it must be concluded that the contested decision is sufficiently reasoned in that regard, even though the Commission did not state its views on the arguments raised in the context of the applicant’s memoranda of 4 March 2010 and 8 October 2011.
The third plea in law must, therefore, be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, pursuant to Article 135(1) of those rules, if equity so requires, the General Court may decide that an unsuccessful party is to pay a proportion of the costs of the other party in addition to bearing his own, or even that he is not to be ordered to pay any.
In the present case, the applicant has failed in its pleas. However, in the course of examining the present action, it has become apparent that the Commission, first, mischaracterised the 2001 decision in recitals 9 and 46 of the contested decision (see paragraphs 62 and 63 above) and, secondly, used wording at the very least ambiguous concerning the investigation which it had to carry out on the basis of the 1999 complaint in recital 18 of the contested decision (see paragraph 64 above).
Accordingly, the Court considers that it is equitable for each party, including the interveners, to bear its own costs.

On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders each party to bear its own costs.

Kanninen
Iliopoulos
Calvo-Sotelo Ibáñez-Martín
Delivered in open court in Luxembourg on 26 September 2018.
E. Coulon
Registrar
H. Kanninen
President
Table of contents

Background to the dispute

Initial administrative procedure

Proceedings before the General Court and the Court of Justice

Procedure before the Commission following the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P

Contested decision

Procedure and forms of order sought

Law

The first plea in law, alleging a manifest error of assessment in the application of Articles 266, 101 and 105 TFEU and Article 7 of Regulation No 1/2003 in relation to the interpretation of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, and a breach of the obligation to state reasons and of the right to be heard

The effectiveness of the first plea in law

The merits of the first plea in law

– The first part of the first plea, alleging infringement of Article 266 TFEU

– The second part of the first plea, alleging an infringement of Articles 101 and 105 TFEU read in conjunction with Article 7 of Regulation No 1/2003

– Third part of the first plea in law, alleging failure to state sufficient reasons and a breach of the right to be heard

Second plea in law, alleging a manifest error of assessment in the application of Articles 101 and 105 TFEU, failure to state reasons, contrary to Article 296 TFEU, when evaluating the existence of a Union interest, and a breach of the applicant’s right to be heard

The first part of the second plea in law, alleging the existence of a Union interest solely on account of the judgments in Case T‑168/01 and Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P

The second part of the second plea in law, alleging a manifestly incorrect assessment and a failure to state reasons by the Commission regarding the cessation of GSK’s conduct in 1998 as a criterion for assessing whether there was a Union interest

The third part of the second plea in law, alleging a manifestly incorrect assessment by the Commission of the lack of persistent effects in the Spanish market resulting from the agreement

The fourth part of the second plea in law, alleging a manifestly incorrect assessment by the Commission relating to the fact that the case forming the subject matter of the 1999 complaint might properly be brought before the national authorities

The third plea in law, alleging lack of analysis and failure to state sufficient reasons in relation to certain matters of fact and of law communicated to the Commission by the applicant following delivery of the judgment in Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P

Costs
(
*1
)	Language of the case: English.