Judgment of the General Court (Ninth Chamber) of 12 December 2018 –

Krka v Commission

(Case T‑684/14)

(Competition — Agreements, decisions and concerted practices — Market for perindopril, a medicinal product intended for the treatment of cardiovascular diseases, in its originator and generic versions — Decision finding an infringement of Article 101 TFEU — Patent dispute settlement agreement — Licensing agreement — Technology acquisition agreement — Restriction of competition by object — Restriction of competition by effect — Balance between competition law and patent law)

1. 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 — Whether sufficiently damaging — Assessment (Art. 101(1) TFEU) (see paras 122-124)

2. 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 125-131, 383)

3. 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 — None (Art. 101(1) TFEU) (see paras 135-155, 201-268)

4. 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 — Licence agreement side deal providing for a transfer of value to the generic undertaking — Lawfulness — Classification of the value transfer as an inducive reverse payment — Conditions (Art. 101(1) TFEU) (see paras 156-199)

5. Agreements, decisions and concerted practices — Adverse effect on competition — Assessment of the anti-competitive nature of an agreement as regards its effects on the market — Procedures — Examination of the competition that would have existed in the absence of the agreement at issue — Agreement implemented before the adoption of the decision by the Commission — Obligation for the Commission to analyse the actual effects of the agreement on competition (Art. 101(1) TFEU) (see paras 315, 345-376)

Re:

Application under Article 263 TFEU for partial 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.

Operative part

The Court:

1. Annuls Article 4 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 finds that Krka Tovarna Zdravil d.d. participated in the agreements referred to in that article;

2. Annuls Article 7(4)(a) of Decision C(2014) 4955 final;

3. Annuls Articles 8 and 9 of Decision C(2014) 4955 final, in so far as they concern Krka Tovarna Zdravil;