# C_2007056EN.01001802.xml

| 10.3.2007 | EN | Official Journal of the European Union | C 56/18 |
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10.3.2007

EN

Official Journal of the European Union

C 56/18

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Appeal brought on 20 December 2006 by Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc v Commission of the Eurooean communities

(Case C-519/06 P)

(2007/C 56/32)

Language of the case: English

Parties

Appellant: Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) (represented by: M. Araujo Boyd, abogado, J. L. Buendía Sierra, membre du service juridique)

Appellant:

Other parties to the proceedings: Commission of the European Communities, European Association of Euro Pharmaceutical Companies (EAEPC), Bundesverband der Arzneimittel-Importeure eV, Spain Pharma, SA, GlaxoSmithKline Services Unlimited, anciennement Glaxo Wellcome plc

Other parties to the proceedings:

Form of order sought

The applicant claims that the Court should:

| — | set aside point 1 of the judgment of the Court of First Instance of 27 September 2006 in case T-168/01; |
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set aside point 1 of the judgment of the Court of First Instance of 27 September 2006 in case T-168/01;

| — | give final judgment in case T-168/01 by entirely rejecting GLAXO's claim and confirming Commission Decision 2001/791/EC; and |
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give final judgment in case T-168/01 by entirely rejecting GLAXO's claim and confirming Commission Decision 2001/791/EC; and

| — | set aside points 3, 4, and 5 of the said judgment relating to costs, and to order GLAXO to bear entirely the costs of case T-168/01 and of the present appeal. |
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set aside points 3, 4, and 5 of the said judgment relating to costs, and to order GLAXO to bear entirely the costs of case T-168/01 and of the present appeal.

Pleas in law and main arguments

The applicant submits that the contested judgment should be annulled on the following grounds:

Erroneous application of Article 81(1) EC

The applicant maintains that the Court of First Instance (hereinafter ‘CFI’) wrongly rejected the Commission's finding that GLAXO'S dual pricing had as its object the prevention, restriction or distortion of competition and argues that dual pricing and export bans are anticompetitive by their very nature. The applicant also submits that the CFI has wrongly applied article 81(1) EC in the context of a regulated sector, that the contested judgment incorrectly analyses the legal and economic context of the case and that the CFI is manifestly wrong in law in its assessment of the goal of the competition rules contained in the EC Treaty and in its analysis of consumer welfare arising from parallel trade.

Erroneous application of Article 81(3) EC

According to the contested judgment the Commission failed in its assessment of the causal link between parallel trade and innovation and between article 4 of the General Sales Conditions and innovation. The CFI also held that the Commission's conclusions regarding the effect of the currency fluctuations on the parallel trade between Spain and the UK were erroneous. The applicant submits that the Commission's appraisal regarding these points was entirely correct and that there was no manifest error of assessment and that the CFI therefore wrongly interpreted article 81(3) EC.

Finally the applicant submits that the CFI reversed the burden of proof regarding article 81(3) EC and did not correctly analyse the Commission's evaluation of the second, third and fourth conditions of that article. The applicant maintains that the four conditions for granting an exemption under article 81(3) are cumulative and therefore the non-fulfilment of only one of these conditions is sufficient grounds for the Commission to reject the application for exemption. As a consequence the CFI cannot annul a negative decision if it has not previously completely assessed the Commission's analysis of the four conditions contained in article 81(3) and concluded that the Commission committed manifest errors of assessment as regards those conditions.

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