Judgment — ECLI:EU:T:2018:921
Date: 2018-12-12
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible
Origin: United Kingdom

summary of the pleas in law on which the application is based — Pleas in law not set out in the application — General reference to documents annexed to the application — Inadmissibility (Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court (1991), Art. 44(1)(c) and (d)) (see paras 113-116) 6. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Description of an undertaking as a potential competitor — Criteria — Essential evidence — Ability of the undertaking to enter the relevant market — Generic medicine undertaking — Obstacles linked to the originator company’s patents and to the technical, regulatory and financial difficulties faced by the generic medicine undertaking — Real concrete possibilities of overcoming those difficulties and entering the relevant market (Art. 101(1) TFEU) (see paras 117-183) 7. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Distinction between infringements by object and infringements by effect — Infringement by subject-matter — Sufficient degree of harmfulness — Assessment (Art. 101(1) TFEU) (see paras 217, 218, 227-230) 8. Competition — EU rules — Substantive scope — Amicable agreement on patents — Included — Balancing of patent law and the competition rules (Art. 101(1) TFEU; Council Regulation No 1/2003) (see paras 232-250) 9. Agreements, decisions and concerted practices — Adverse effect on competition — Amicable agreement on patents — Agreement concluded between an originator company and a generic medicine undertaking — Agreement containing clauses prohibiting patent challenges and clauses prohibiting the marketing of products — Inducive reverse payment received by the generic undertaking — Restriction by object (Art. 101(1) TFEU) (see paras 255-287) 10. Agreements, decisions and concerted practices — Adverse effect on competition — Amicable agreement on patents — Agreement concluded between an originator company and a generic medicine undertaking — Agreement containing clauses prohibiting patent challenges and clauses prohibiting the marketing of products — Payment received by the generic medicine undertaking — Classification as an inducive reverse payment — Conditions (Art. 101(1) TFEU) (see paras 291-300) 11. Agreements, decisions and concerted practices — Adverse effect on competition — Ancillary restriction — Concept — Restriction necessary to the implementation of a main operation which is not anti-competitive — Main operation constituting a restriction of competition by object — Ancillary restraints doctrine inapplicable in the presence of an inducive reverse payment (Art. 101(1) TFEU) (see paras 310-320) 12. Action for annulment — Purpose — Decision based on several pillars of reasoning, each sufficient to justify the operative part — Annulment of such a decision — Conditions (Art. 263 TFEU) (see paras 323-327) 13. Agreements, decisions and concerted practices — Prohibition — Exemption — Conditions — Improvement of the production or distribution of goods or contribution to technical or economic progress — Appreciable objective advantages of such a character as to compensate for the disadvantages for competition resulting from that agreement — Burden of proof — Cumulative nature of the conditions for exemption (Art. 101(1) and (3) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 338-358) 14. Competition — Fines — Amount — Determination — Determination of the basic amount — Methodology established by the Guidelines not applied — Breach of the principle of equal treatment — None (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13 and 37) (see paras 369-404) 15. Fundamental rights — Charter of Fundamental Rights of the European Union — Principle that offences and penalties must have a proper legal basis — Scope — Foreseeability of the infringing nature of the penalised conduct — Patent dispute settlement agreement between an originator company and a generic medicine undertaking — Agreement contrary to competition law — Generic medicine undertaking which could not have been unaware of the anti-competitive nature of its conduct (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49(1)(a)); (see paras 428-454) 16. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 101(1) TFEU; Commission Communication 2006/C 210/02, point 29) (see para. 460) 17. Competition — Fines — Amount — Determination — Whether the Commission is obliged to abide by its previous decision-making practice — No such obligation (Art. 101 TFEU) (see para. 461) 18. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Cooperation of the undertaking concerned outside the scope of the Leniency Notice — Criteria for assessment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see paras 475-484) Re: Application under Article 263 TFEU and seeking, principally, the annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding pursuant to Articles 101 and 102 TFEU (Case AT.39612 — Périndopril (Servier)), in so far as it concerns the applicant and, in the alternative, the annulment or reduction of the amount of the fine imposed by that decision Operative part The Court: 1. Dismisses the action; 2. Orders Niche Generics Ltd to pay the costs.