# C_2017030EN.01002301.xml

| 30.1.2017 | EN | Official Journal of the European Union | C 30/23 |
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30.1.2017

EN

Official Journal of the European Union

C 30/23

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Appeal brought on 18 November 2016 by Generics (UK) Ltd against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-469/13: Generics (UK) v Commission

(Case C-588/16 P)

(2017/C 030/28)

Language of the case: English

Parties

Parties

Appellant: Generics (UK) Ltd (represented by: I. Vandenborre, advocaat, T. Goetz, Rechtsanwalt)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | annul the judgment or take such other action as justice may require. |
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annul the judgment or take such other action as justice may require.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | First plea-in-law. The Court has failed to demonstrate that the Settlement Agreements constitute infringements ‘by object’, within the meaning of the Cartes Bancaires judgment. In particular, the Court does not explain how the Settlement Agreements reveal in themselves a sufficient degree of harm to competition without the need to assess their actual and potential effects. Instead, the Court expresses doubt and uncertainty in relation to critical points of the analysis of the Settlement Agreements. |
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1.

First plea-in-law. The Court has failed to demonstrate that the Settlement Agreements constitute infringements ‘by object’, within the meaning of the Cartes Bancaires judgment. In particular, the Court does not explain how the Settlement Agreements reveal in themselves a sufficient degree of harm to competition without the need to assess their actual and potential effects. Instead, the Court expresses doubt and uncertainty in relation to critical points of the analysis of the Settlement Agreements.

First plea-in-law

| 2. | Second plea-in-law. The evidence supporting the Court's findings does not meet the requirement of accurate, reliable, consistent and comprehensive evidence, which this Court has identified as necessary to meet the burden of proving a ‘by object’ infringement. |
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2.

Second plea-in-law. The evidence supporting the Court's findings does not meet the requirement of accurate, reliable, consistent and comprehensive evidence, which this Court has identified as necessary to meet the burden of proving a ‘by object’ infringement.

Second plea-in-law

| 3. | Third plea-in-law. The Court reverses the burden of proof when it imposes a requirement on Generics (UK) to demonstrate that litigation certainly would have ensued in case of a launch at risk, and that Generics (UK) would certainly have lost in litigation, to support the legality of the Settlement Agreements. |
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3.

Third plea-in-law. The Court reverses the burden of proof when it imposes a requirement on Generics (UK) to demonstrate that litigation certainly would have ensued in case of a launch at risk, and that Generics (UK) would certainly have lost in litigation, to support the legality of the Settlement Agreements.

Third plea-in-law

| 4. | Fourth plea-in-law. The Court failed to exercise a full review of the rejection of the applicability of Article 101(3) TFEU by the Commission. |
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4.

Fourth plea-in-law. The Court failed to exercise a full review of the rejection of the applicability of Article 101(3) TFEU by the Commission.

Fourth plea-in-law

| 5. | Fifth plea-in-law. The Court erred in law by applying its powers of judicial review ultra vires in establishing a new infringement of Article 101(1) TFEU that was not formulated in the Decision and substituting its own findings for those of the Commission. |
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5.

Fifth plea-in-law. The Court erred in law by applying its powers of judicial review ultra vires in establishing a new infringement of Article 101(1) TFEU that was not formulated in the Decision and substituting its own findings for those of the Commission.

Fifth plea-in-law

| 6. | Sixth plea-in-law. The Court failed to identify clear, precise and consistent evidence to support a finding that Generics (UK) committed the alleged infringement intentionally or negligently as required pursuant to Article 23(2) of Council Regulation (EC) No 1/2003 (1) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. |
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6.

Sixth plea-in-law. The Court failed to identify clear, precise and consistent evidence to support a finding that Generics (UK) committed the alleged infringement intentionally or negligently as required pursuant to Article 23(2) of Council Regulation (EC) No 1/2003 (1) of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.

Sixth plea-in-law

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(1)  OJ 2003, L 1, p. 1.

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