# C_2007042EN.01001101.xml

| 24.2.2007 | EN | Official Journal of the European Union | C 42/11 |
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24.2.2007

EN

Official Journal of the European Union

C 42/11

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Appeal brought on 11 December 2006 by GlaxoSmithKline Services Unlimited (GSK), anciennement Glaxo Wellcome plc 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 v Commission of the European Communities

(Case C-501/06 P)

(2007/C 42/18)

Language of the case: English

Parties

Appellant: GlaxoSmithKline Services Unlimited, anciennement Glaxo Wellcome plc (represented by: I. Forrester QC, J. Venit, member of the New York Bar, S. Martínez Lage, abogado, A. Komninos, Δικηγόρος, A. Schulz, Rechtsanwalt)

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, Asociación de exportadores españoles de productos farmacéuticos (Aseprofar)

Other parties to the proceedings:

Form of order sought

The applicant claims that the Court should:

| — | annul the Judgment of the Court of First Instance in so far as it rejects GSK's claim for annulment of Article 1 of the contested Decision, or take such other action as justice may require. |
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annul the Judgment of the Court of First Instance in so far as it rejects GSK's claim for annulment of Article 1 of the contested Decision, or take such other action as justice may require.

| — | award GSK the costs. |
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award GSK the costs.

Pleas in law and main arguments

The applicant submits that the contested judgment should be annulled, in so far as it rejects GSK's claim for annulment of article 1 of the contested decision on the following grounds:

| — | The Court of First Instance erred in reaching the conclusion that the General Sales Conditions produce ap0preciable anti-competitive effects and thus violate Article 81(1) EC, failing appropriately to assess their actual legal and economic context. Furthermore, (i) the intra-brand price competition that the Court refers to in its Judgment is itself the result of a market distortion, and (ii) the Court relied on alleged marginal advantages that final consumers in importing countries could have derived from the participation of the Spanish wholesalers in intra-brand competition. |
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The Court of First Instance erred in reaching the conclusion that the General Sales Conditions produce ap0preciable anti-competitive effects and thus violate Article 81(1) EC, failing appropriately to assess their actual legal and economic context. Furthermore, (i) the intra-brand price competition that the Court refers to in its Judgment is itself the result of a market distortion, and (ii) the Court relied on alleged marginal advantages that final consumers in importing countries could have derived from the participation of the Spanish wholesalers in intra-brand competition.

| — | The Court lacked the competence to draw factual conclusions concerning the possible effect upon patients and those who paid for their medicines, given the absence of a basis for such conclusions in the contested Commission decision. |
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The Court lacked the competence to draw factual conclusions concerning the possible effect upon patients and those who paid for their medicines, given the absence of a basis for such conclusions in the contested Commission decision.

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