Judgment — ECLI:EU:T:2018:915
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

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 173-176) 8. 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 medicines undertaking — Obstacles linked to the originator company’s patents and to the technical, regulatory and financial difficulties faced by the generic undertaking — Real concrete possibilities of overcoming those difficulties and entering the market (Art. 101(1) TFEU) (see paras 177-243, 250-258) 9. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Distinction between infringements by object and infringements by effect — Infringement by object — Whether sufficiently damaging — Assessment (Art. 101(1) TFEU) (see paras 288, 289, 298-301) 10. 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 302-320) 11. 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 325-357) 12. 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 undertaking — Classification as an inducive reverse payment — Conditions (Art. 101(1) TFEU) (see paras 361-371) 13. Agreements, decisions and concerted practices — Adverse effect on competition — Ancillary restriction — Meaning — 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 381-391) 14. 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 394-398) 15. 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 409-429) 16. 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 451-486) 17. 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 undertaking — Agreement contrary to competition law — Generic 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)) (see paras 510-537) 18. 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 notice 2006/C 210/02, point 29) (see para. 545) 19. Competition — Fines — Amount — Determination — Whether the Commission is obliged to abide by its previous decision-making practice — No obligation (Art. 101 TFEU) (see para. 546) 20. 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 560-569) Re: Application under Article 263 TFEU for annulment of Commission Decision C(2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 TFEU [Case AT.39612 — Perindopril (Servier)] in so far as it concerns the applicant and, in the alternative, for annulment or reduction of the fine imposed on the applicant by that decision. Operative part The Court: 1. Dismisses the action; 2. Orders Unichem Laboratories Ltd to pay the costs.