Opinion of the Advocate General — ECLI:EU:C:2012:293
Date: 2012-05-15
Language of the case: English
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: United Kingdom;Sweden

summary at paragraph 191 of the judgment under appeal. 23 – Case C‑127/00 [2003] ECR I‑14781. 24 – Case T‑111/96 [1998] ECR II‑2937, paragraphs 54 to 60. 25 – Cited in footnote 24. 26 – See paragraph 356 of the judgment under appeal. 27 – See paragraph 493 of the judgment under appeal. 28 – See paragraph 495 of the judgment under appeal. 29 – See, for example, paragraphs 491, 495 and 497 of the judgment under appeal. 30 – See paragraphs 573, 588 and 599 of the judgment under appeal. 31 – Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑9555, paragraph 174 and the case-law cited. 32 – I consider that the General Court correctly stated that proof of intention to resort to practices falling outside the scope of competition on the merits may, however, be relevant where it supports the conclusion based on objective factors that an undertaking abused its dominant position. See, to that effect, paragraph 359 of the judgment under appeal. 33 – See Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 200. 34 – Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1, p. 1. See also Article 15(4) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition 1959-1962(I), p. 87. 35 – Cited in footnote 23. 36 – Case cited in footnote 24. 37 – In that case the Commission stated that, in order to be able to determine the cases in which legal proceedings are an abuse, two cumulative criteria must be met. It is necessary that the action firstly, cannot reasonably be considered as an attempt to establish the rights of the undertaking concerned and can therefore only serve to harass the opposite party and secondly, it is conceived in the framework of a plan whose goal is to eliminate competition. It must, however, be noted that the General Court examined whether the Commission correctly applied the two cumulative criteria and did not rule on the correctness of the criteria chosen by the Commission. See paragraph 58 of that judgment. 38 – Joined Cases C‑468/06 to C‑478/06 [2008] ECR I‑7139. 39 – See, to that effect, Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 91, and Case C‑62/86 AKZO v Commission [1991] ECR I‑3359, paragraph 69. 40 – Deutsche Telekom v Commission, cited in footnote 31, paragraph 250. In that case the Court found that the anti-competitive effect which the Commission is required to demonstrate, as regards pricing practices of a dominant undertaking resulting in a margin squeeze of its equally efficient competitors, relates to the possible barriers which the appellant’s pricing practices could have created for the growth of products on the retail market in end-user access services and, therefore, on the degree of competition in that market (emphasis added) (see paragraph 252). It was also found in that case that the particular pricing practices gave rise to actual exclusionary effects (see paragraph 259). 41 – I dislike the use of the term ‘likely effects’ in the case-law in this context. It brings to mind the tort law standard of ‘on the balance of probabilities’ and thus sets the evidentiary bar too high. On the other side of the spectrum, the term ‘capable’ may set the evidentiary bar too low, whereby any remote possibility of anti-competitive effects is sufficient to establish abuse. 42 – If a practice at the time of implementation is incapable of hindering competition, then that practice does not infringe Article 102 TFEU. See, to that effect, Deutsche Telekom v Commission, cited in footnote 31, paragraph 254. 43 – I consider that the General Court correctly found at paragraph 548 of the judgment under appeal in relation to the initial SPC application to the United Kingdom office (a country in which no SPC was granted to AZ) that ‘it is absolutely clear from all the documentary evidence submitted for the Court’s attention, … that the initial SPC application filed with the United Kingdom patent office was part of an overall strategy on SPC applications, designed to base those applications on the date of 21 March 1988 instead of on the date of 15 April 1987, which corresponded to the first marketing authorisation granted in the Community’. 44 – See, by analogy, Deutsche Telekom v Commission, cited in footnote 31, paragraph 254. In that regard, I also fully concur with the General Court’s finding at paragraph 379 of the judgment under appeal that ‘[t]he fact that AZ was no longer in a dominant position at the time when its abusive behaviour was able to produce its effects does not alter the legal classification to be attached to its acts, since those acts were committed at a time when AZ was under a special responsibility not to allow its behaviour to impair genuine undistorted competition on the common market’. I consider that the effects referred to by the General Court are actual effects which are clearly not required pursuant to the Court’s case-law. I consider that the Commission has correctly argued in its pleadings that the legality of an act must be assessed at the time it is implemented rather than at the time actual concrete effects arise. 45 – K-Lath Division of Tree Island Wire (USA) Iinc v Davis Wire Corporation and Others, 15 F.Supp. 2d 952 (C:D: Cal. 1998). 46 – Case C‑94/98 [1999] ECR I‑8789. 47 – Case C‑172/00 [2002] ECR I‑6891. 48 – See point 75 above. 49 – Cited in footnote 46. 50 – Cited in footnote 47. 51 – Case C‑418/01 [2004] ECR I‑5039. 52 – OJ 1987 L 15, p. 36. 53 – See IMS Health, cited in footnote 51, paragraph 22. 54 – Case C‑15/01 Paranova Läkemedel and Others [2003] ECR I‑4175, paragraphs 25 to 28 and 33, and Case C‑113/01 Paranova [2003] ECR I‑4243, paragraphs 26 to 29 and 34. 55 – See paragraph 492(b). 56 – The abridged procedure was however unavailable due to the positive actions of AZ in requesting deregistration of the marketing authorisations for Losec capsules in the relevant countries. 57 – Who are not granted direct access to the data in question pursuant to Directive 65/65. 58 – Or duty to deal or essential facility case-law. 59 – See Case T‑65/98 Van den Bergh Foods v Commission [2003] ECR II‑4653, paragraph 161, upheld by the Court of Justice in Case C‑552/03 P Unilever Bestfoods v Commission [2006] ECR I‑9091, paragraph 137. 60 – See IMS Health, cited in footnote 51, paragraph 52. 61 – See paragraph 834 of the judgment under appeal. 62 – It is clear from paragraph 315 of the contested decision that, as a result of replies to a questionnaire returned to AZ by the SMPA in 1997, there was documentary evidence about the possible/plausible effects of the deregistration of Losec capsules on parallel imports in Sweden. 63 – Paranova Läkemedel and Others, cited in footnote 54, paragraphs 25 to 28 and 33, and Paranova, cited in footnote 54, paragraphs 26 to 29 and 34. 64 – Cited in footnote 39. 65 – See points 41 to 43 above. 66 – Case 322/81 [1983] ECR 3461 (‘Michelin I’). 67 – Case C‑8/08 [2009] ECR I‑4529. 68 – Case T‑137/94 [1999] ECR II‑303. 69 – Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 31, and Baustahlgewebe v Commission, cited in footnote 12, paragraph 129. 70 – See paragraph 908 of the contested decision which refers to the use of public procedures and regulation with an exclusionary intent. 71 – See points 47 et seq. and 77 et seq. above. 72 – Which consisted firstly, in misleading representations made deliberately in order to obtain exclusive rights to which AZ was not entitled or to which it was entitled for a shorter period and secondly, the deregistration of the marketing authorisations in order to create obstacles to the market entry of generic products in Denmark, Norway and Sweden and to parallel imports in Sweden, thus resulting in partitioning of the common market. 73 – Case cited in footnote 31, paragraph 124. 74 – Case cited in footnote 66. 75 – In the Michelin I case the Court referred to discount systems having the same features (cited in footnote 66). 76 – [2008] ECR II‑477, paragraphs 312 and 313. 77 – Upheld on appeal. See Case C‑280/08 P Deutsche Telekom v Commission, cited in footnote 31, paragraphs 279 and 286. 78 – It is clear from the context that the effects in question are actual effects. 79 – See, by analogy, Joined Cases C‑101/07 P and C‑110/07 P Coop de France Bétail et Viande v Commission [2008] ECR I‑10193, paragraphs 96 to 98. 80 – See Hoffmann-La Roche v Commission, cited in footnote 39, paragraph 41. 81 – Case T‑30/89 Hilti v Commission [1991] ECR II‑1439, paragraph 92. 82 – See paragraph 245 of the judgment under appeal. At paragraph 294 of the judgment under appeal the General Court concluded that the Commission did not commit a manifest error of assessment in finding that AZ held a dominant position within the meaning of Article 82 EC and Article 54 of the EEA Agreement on the PPI market in Germany from 1993 until the end of 1997, in Belgium from 1993 until the end of 2000, in Denmark from 1993 until the end of 1999, in Norway from 1994 until the end of 2000, in the Netherlands from 1993 until the end of 2000, in the United Kingdom from 1993 until the end of 1999, and in Sweden from 1993 until the end of 2000. 83 – Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 65. Unlike a monopoly or quasi-monopoly situation, such a position does not preclude some competition but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it and without suffering any adverse effects as a result of its attitude. See Hoffmann-La Roche v Commission, cited in footnote 39, paragraph 39. 84 – See paragraph 261 of the judgment under appeal. 85 – See paragraphs 259 to 262 of the judgment under appeal. 86 – See paragraph 264 of the judgment under appeal. 87 – See paragraph 269 of the judgment under appeal. 88 – See paragraph 256 of the judgment under appeal. 89 – AZ was the first-mover on a market which it pioneered. See paragraph 260 of the judgment under appeal. 90 – See paragraphs 259 and 264 of the judgment under appeal. 91 – See paragraph 259 of the judgment under appeal. 92 – See, inter alia, paragraph 264 of the judgment under appeal. 93 – Joined Cases C‑241/91 P and C‑242/91 P [1995] ECR I‑743. 94 – Case cited in footnote 51. 95 – See paragraph 47 of Magill (cited in footnote 93). 96 – Joined Cases 6/73 and 7/73 [1974] ECR 223. 97 – Magill, cited in footnote 93; IMS Health, cited in footnote 51; and Case 238/87 Volvo [1988] ECR 6211. 98 – Indispensability, however, is of paramount importance in order to establish an abuse in such essential facility cases. 99 – See Michelin I, cited in footnote 66, paragraph 57, and Joined Cases C‑395/96 P and C‑396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I‑1365, paragraph 37. 100 – Takeda, Byk Gulden and Eisai. 101 – Including, inter alia, extremely high market shares. 102 – See, paragraph 753 of the judgment under appeal. 103 – See, paragraph 846 of the judgment under appeal, see also paragraph 839. 104 – See paragraph 862 of the judgment under appeal which refers to paragraph 315 of the contested decision. 105 – See, for example, paragraphs 780 and 848. 106 – Which according to the Commission was based on thorough, exhaustive research. 107 – Losec Post Patent Strategy.