JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

12 December 2018 ( *1 )

(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 Articles 101 and 102 TFEU — Agreements intended to delay, or even prevent, entry into the market of generic versions of perindopril — Participation of a subsidiary in the infringement committed by its parent company — Imputation of the infringement — Joint and several liability — Ceiling for the fine)

In Case T‑677/14,

Biogaran, established in Colombes (France), represented by T. Reymond, O. de Juvigny and J. Jourdan, lawyers,

applicant,

v

European Commission, represented initially by F. Castilla Contreras, T. Vecchi and B. Mongin, and subsequently by F. Castilla Contreras, B. Mongin and C. Vollrath, acting as Agents,

defendant,

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 reduction of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,

Registrar: G. Predonzani, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 October 2017,

gives the following

Judgment

I. Background to the dispute

A. Perindopril

1 The Servier group, composed, of Servier SAS, and several subsidiaries (individually or jointly, ‘Servier’), developed perindopril, a medicinal product used in cardiovascular medicine, primarily intended for the treatment of hypertension and heart failure, by inhibiting the angiotensin converting enzyme (‘ACE’).

2 The active pharmaceutical ingredient (‘API’) of perindopril, that is to say, the biologically active chemical substance which produces the desired therapeutic effects, takes the form of a salt. The salt used initially was erbumine (or tert-butylamine), which is in its crystalline form on account of the synthesis process applied by Servier.

1. Compound patent

3 The perindopril compound patent (patent EP0049658, ‘the 658 patent’) was filed with the European Patent Office (EPO) on 29 September 1981. The 658 patent was due to expire on 29 September 2001, but protection was prolonged in a number of EU Member States, including the United Kingdom, until 22 June 2003, in accordance with Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1). In France, protection under the 658 patent was prolonged until 22 March 2005 and, in Italy, until 13 February 2009.

2. Secondary patents

4 In 1988, Servier also filed a number of patents before the EPO relating to processes for the manufacture of the perindopril compound with an expiry date of 16 September 2008: patents EP0308339, EP0308340, EP0308341 and EP0309324 (respectively, ‘the 339 patent’, ‘the 340 patent’, ‘the 341 patent’ and ‘the 324 patent’).

5 Servier filed new patents relating to erbumine and its manufacturing processes with the EPO in 2001, including patent EP1294689 (known as ‘the beta patent’ — ‘the 689 patent’), patent EP1296948 (known as ‘the gamma patent’ — ‘the 948 patent’), and patent EP1296947 (known as ‘the alpha patent’ — ‘the 947 patent’). The 947 patent application relating to the alpha crystalline form of erbumine and the process for its preparation was filed on 6 July 2001 and granted by the EPO on 4 February 2004.

3. Second generation perindopril

6 From 2002, Servier began developing a second generation perindopril product, manufactured using another salt, arginine, instead of erbumine. Perindopril arginine showed improvements in terms of shelf life, which increased from two to three years; stability, enabling the use of a single type of packaging for all climatic zones; and storage, since it required no particular storage conditions.

7 Servier applied for a European patent for perindopril arginine (patent EP1354873B, ‘the 873 patent’) on 17 February 2003. The 873 patent was granted to Servier on 17 July 2004 with an expiry date of 17 February 2023. The introduction of perindopril arginine in the European Union markets started in 2006.

B. The applicant

8 Biogaran (‘the applicant’ or ‘Biogaran’), a generic company whose distribution activity is almost exclusively limited to France, was founded in 1996 and is a wholly owned subsidiary of Laboratoires Servier SAS, itself a subsidiary of Servier SAS.

C. Niche’s activities in relation to perindopril

9 The generic company Niche Generics Ltd (‘Niche’) assumed all of the obligations and responsibilities of Bioglan Generics Ltd under the development and licensing agreement which it had concluded on 26 March 2001 with Medicorp Technologies India Ltd (‘Medicorp’), of which Matrix Laboratories Ltd (‘Matrix’) was the successor company, with a view to marketing a generic version of perindopril (‘the Niche/Matrix agreement’). Under that agreement, the two companies were to market generic perindopril in the European Union, with Matrix responsible primarily for developing and supplying the perindopril API, while Niche was responsible primarily for taking the necessary steps to obtain marketing authorisations and for the business strategy.

10 In April 2003, Matrix provided a pilot batch of perindopril API and the corresponding drug master file in order for Niche to prepare the marketing authorisation applications.

11 Unichem Laboratories Ltd (‘Unichem’), the parent company of Niche, was responsible for the production of perindopril in final dosage form under an agreement for the development and manufacture of perindopril tablets concluded on 27 March 2003 with Medicorp (subsequently Matrix), which was responsible for developing the perindopril API and providing it to Unichem.

D. Disputes relating to perindopril

1. Disputes before the EPO

12 Ten generic companies, including Niche, filed opposition proceedings against the 947 patent before the EPO in 2004, seeking the revocation in full of that patent on grounds of lack of novelty, lack of inventive step and insufficient disclosure of the invention. However, Niche withdrew from the opposition procedure on 9 February 2005.

13 On 27 July 2006, the Opposition Division of the EPO confirmed the validity of the 947 patent after Servier made some minor amendments to its original claims (‘the EPO decision of 27 July 2006’). Seven companies brought an appeal against that decision. By decision of 6 May 2009, the EPO’s Technical Board of Appeal annulled the EPO decision of 27 July 2006 and revoked the 947 patent. Servier’s request for a revision of that decision was rejected on 19 March 2010.

14 On 11 August 2004, Niche also filed an opposition against the 948 patent before the EPO, but withdrew from the procedure on 14 February 2005.

2. Disputes before the national courts

15 The validity of the 947 patent has, moreover, been challenged by generic companies before the courts of certain Member States, notably in the Netherlands and the United Kingdom.

16 In the United Kingdom, on 25 June 2004, Servier brought an action for infringement before the High Court of Justice (England & Wales), Chancery Division (Patents Court), against Niche, in relation to the 339, 340 and 341 patents, after Niche applied for marketing authorisations in the United Kingdom for a generic version of perindopril, developed in partnership with Matrix under the Niche/Matrix agreement. On 9 July 2004 Niche served on Servier a counterclaim for a declaration of invalidity of the 947 patent.

17 The hearing before the High Court of Justice (England & Wales), Chancery Division (Patents Court), concerning the merits of the alleged infringement, was finally scheduled for 7 and 8 February 2005, but lasted for only half a day because a settlement agreement was concluded between Servier and Niche on 8 February 2005, which put an end to the litigation between those two parties.

18 Matrix was kept informed by Niche on the progress of that litigation procedure and was also associated with that procedure as it gave evidence before the High Court of Justice (England & Wales), Chancery Division (Patents Court), on behalf of Niche. Moreover, on 7 February 2005, Servier sent a formal warning letter to Matrix, accusing it of infringing the 339, 340 and 341 patents and threatening to bring an action for infringement.

19 In the autumn of 2004, Servier began to consider acquiring Niche. To that end, Servier carried out a due diligence, of which the first phase was completed on 10 January 2005, the date on which Servier submitted a preliminary non-binding offer to acquire Niche’s capital for an amount between 15 and 45 million pounds sterling (GBP). Following the second phase of the due diligence, which took place on 21 January 2005, Servier informed Niche verbally on 31 January 2005 that it did not wish to proceed with the acquisition.

E. The settlements

1. The agreements concluded between Niche, Unichem, Matrix and Servier

20 Servier entered into a series of patent settlement agreements with a number of generic companies with which it was involved in patent disputes.

21 On 8 February 2005, Servier concluded a settlement agreement with Niche and Unichem (‘the settlement agreement’ or ‘the settlement agreement between Servier and Niche’). The territorial scope of the agreement covered all the countries in which the 339, 340, 341 and 947 patents existed (Clause 3 of the agreement).

22 Under the settlement agreement, Niche and Unichem were to refrain from making, having made, keeping, importing, supplying, offering to supply or disposing of generic perindopril made using the process developed by Niche, which Servier regarded as infringing the 339, 340 and 341 patents, as validated in the United Kingdom, using a substantially similar process or using any other process that would infringe the 339, 340 and 341 patents (‘the process at issue’) until the local expiry date of those patents (Clause 3 of the agreement) (‘the non-marketing clause’). However, they would be free, under the agreement, to market perindopril made using the process at issue without infringing the patents after the expiry of those patents (Clauses 4 and 6 of the agreement). Moreover, Niche was required to cancel, terminate or suspend until the expiry date of the patents all of its existing contracts relating, on the one hand, to perindopril made using the process at issue and, on the other, to marketing authorisation applications for that perindopril (Clause 11 of the agreement). Furthermore, Niche and Unichem undertook not to make any applications for marketing authorisations for perindopril made using the process at issue and not to assist any third parties to obtain such a marketing authorisation (Clause 10 of the agreement). Lastly, they were to abstain from any invalidity and non-infringement actions against the 339, 340, 341, 947, 689 and 948 patents until their expiry, except as a defence to a patent infringement action (Clause 8 of the agreement) (‘the non-challenge clause’). Niche also agreed to withdraw its oppositions to the 947 and 948 patents before the EPO (Clause 7 of the agreement).

23 In return, Servier undertook, first, not to bring any infringement actions against Niche, Niche customers or Unichem based on the 339, 340, 341 and 947 patents in respect of any act of alleged infringement occurring before the conclusion of the agreement (Clause 5 of the agreement) (‘the non-assertion clause’), and, secondly, to pay Niche and Unichem the sum of GBP 11.8 million in two instalments (Clause 13 of the agreement). That sum was to be paid in consideration for the commitments made by Niche and Unichem and for the ‘substantial costs and potential liabilities that may be incurred by Niche and Unichem as a consequence of ceasing their programme to develop perindopril made using the process [at issue]’.

24 On 8 February 2005, Servier also concluded a settlement agreement with Matrix (‘the Matrix agreement’) covering all the countries in which the 339, 340, 341 and 947 patents existed, with the exception of one non-Member State of the European Economic Area (EEA) (Section 1(1)(xiii) of the agreement).

25 Under the Matrix agreement, Matrix committed to refrain from making, having made, keeping, importing, supplying, offering to supply or disposing of perindopril made using the process at issue until the local expiry date of those patents (Clauses 1 and 2 of the agreement). However, the agreement stipulated that Matrix would be free to deal in perindopril made using the process at issue without infringing the patents after the expiry of those patents (Clause 4 of the agreement). Moreover, Matrix was required to cancel, terminate or suspend until the expiry date of the patents all of its existing contracts relating to perindopril made using the process at issue and to marketing authorisation applications for that perindopril by 30 June 2005 at the latest (Clauses 7 and 8 of the agreement). Furthermore, it committed not to apply for marketing authorisations for perindopril made using the process at issue and not to assist any third parties to obtain such a marketing authorisation (Clause 6 of the agreement). Finally, Matrix was to abstain from any invalidity and non-infringement actions against the 339, 340, 341, 947, 689 and 948 patents until their expiry, except as a defence to a patent infringement action (Clause 5 of the agreement).

26 In return, Servier committed, first, not to bring any infringement actions against Matrix based on the 339, 340, 341 and 947 patents in respect of any act of alleged infringement occurring before the conclusion of the Matrix agreement (Clause 3 of the agreement) and, secondly, to pay Matrix the sum of GBP 11.8 million in two instalments (Clause 9 of the agreement). That sum was consideration for the commitments made by Matrix and for the ‘substantial costs and potential liabilities that may be incurred by Matrix as a consequence of ceasing its programme to develop and manufacture perindopril made using the process [at issue]’.

2. The agreement concluded between Niche and Biogaran

27 On 8 February 2005 (the day of the conclusion of the settlement agreement between Servier and Niche), a licensing and supply agreement was concluded between Niche and Biogaran concerning the transfer from Niche to Biogaran of three product dossiers (that is to say ‘any and all information and/or data in possession of Niche related to the products and necessary for the obtention of marketing authorisations’) and of an existing marketing authorisation in return for a payment by Biogaran to Niche of GBP 2.5 million (‘the Biogaran agreement’).

28 Under the Biogaran agreement, Niche undertook to transfer to Biogaran the product dossier relating to product A for exclusive use by Biogaran in order to obtain marketing authorisations in France, the United Kingdom and a non-EEA country and for non-exclusive use for the rest of the world. As regards the two other product dossiers, relating to product B and product C, the transfer of the dossiers was made on a non-exclusive basis worldwide. As regards product B in particular, Niche agreed to transfer its marketing authorisation for France to Biogaran. The Biogaran agreement provided that, once Biogaran had obtained its marketing authorisations, it would order the products concerned from Niche (Clause 2.2 of the agreement). Pursuant to Clause 2.5 of the agreement, Niche undertook to provide Biogaran with all the information and all the data owned or controlled by it and constituting the product dossier necessary to obtain the corresponding marketing authorisations. Moreover, Biogaran was required to make all reasonable efforts to ensure that orders for the product or products were placed at the appropriate time, to allow Niche to maintain a consistent production rate for the full duration of that agreement (Clause 4.1 of the agreement). However, the Biogaran agreement stipulated that that agreement would be automatically terminated if the marketing authorisations were not obtained within 18 months (Clause 14.4 of the agreement). Similarly, the agreement provided that neither party would be entitled to compensation in the event of termination in accordance with Clauses 14.2 and 14.4 of the agreement.

29 In consideration for the product dossiers, Clause 2.3 of the Biogaran agreement provided for the payment by Biogaran of GBP 2.5 million and set out payment terms that obliged Biogaran to pay Niche GBP 1.5 million on 14 February 2005 at the latest and GBP 1 million on 5 October 2005 at the latest, the same dates as agreed under the settlement agreement between Servier and Niche for the payment of GBP 11.8 million.

F. The sector inquiry

30 On 15 January 2008, the Commission of the European Communities decided to open an inquiry into the pharmaceutical sector pursuant to Article 17 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) in order to identify the factors contributing to the decline in innovation in that sector, measured by the number of new medicines reaching the market, and the reasons for the delayed entry into the market of certain generic medicines.

31 The Commission published a preliminary report on the results of its inquiry on 28 November 2008, followed by a public consultation. On 8 July 2009, it adopted a communication giving a summary of its pharmaceutical sector inquiry report. The Commission stated, inter alia, in that communication, that the monitoring of patent settlements concluded between originator companies and generic companies should continue in order better to understand the use of that type of agreement and to identify those agreements that delay generic market entry to the detriment of EU consumers and may constitute an infringement of competition rules. The Commission subsequently published six annual reports on the monitoring of patent settlement agreements.

G. The administrative procedure and the contested decision

32 On 24 November 2008, the Commission made unannounced inspections of the premises of the companies concerned. The Commission sent requests for information to several companies in January 2009.

33 On 2 July 2009, the Commission decided to open proceedings against Servier and the applicant as well as other generic companies.

34 In August 2009 and then between December 2009 and May 2012, the Commission sent several requests for information both to Servier and to Niche. Following two refusals by Servier to communicate information relating to the Biogaran agreement, the Commission adopted a decision based on Article 18(3) of Regulation No 1/2003, requesting that certain information be communicated to it. The response to that request was provided on 7 November 2011.

35 On 27 July 2012, the Commission issued a Statement of Objections to several companies including the applicant, which submitted its reply on 14 January 2013.

36 The hearing of the companies concerned, including the applicant, was held from 15 to 18 April 2013.

37 On 18 December 2013, the Commission granted access to evidence gathered or more widely disclosed after the Statement of Objections and sent a Letter of Facts to which the applicant replied on 21 January 2014.

38 The hearing officer issued his final report on 7 July 2014.

39 On 9 July 2014, the Commission adopted Decision C(2014) 4955 final relating to a proceeding under Article 101 and Article 102 TFEU (Case AT.39612 — Perindopril (Servier)) (‘the contested decision’).

40 Article 1 of the contested decision finds that Unichem, including its subsidiary Niche, and Servier, including its subsidiary Biogaran, infringed Article 101 TFEU by participating in a reverse payment patent dispute settlement agreement covering all Member States, except Croatia and Italy, for the period starting 8 February 2005, except as regards Latvia (period starting 1 July 2005), Bulgaria and Romania (period starting 1 January 2007) and Malta (period starting 1 March 2007), and ending on 15 September 2008, except as regards the Netherlands (period ending 1 March 2007) and the United Kingdom (period ending 6 July 2007).

41 The Commission considered that the Biogaran agreement had constituted an additional inducement intended to persuade Niche not to enter the market and revealed Biogaran’s direct involvement in the infringement committed by Servier, its parent company.

42 In recitals 1349 to 1354 of the contested decision, the Commission found that, in addition to the net value transfer, Servier had provided an additional inducement to Niche through the Biogaran agreement. The Commission pointed out that, on 8 February 2005, that is to say on the same day that the settlement agreement between Servier and Niche was concluded, Niche had also concluded the Biogaran agreement and that, under that agreement, Biogaran had paid Niche GBP 2.5 million in consideration for the transfer of the product dossiers and of a marketing authorisation for pharmaceutical products unrelated to perindopril.

43 According to Article 7(1)(b) of the contested decision, a fine of EUR 131532600 is imposed on Servier and Biogaran jointly and severally. Biogaran is also required, under Article 8 of that decision, to refrain both from repeating the infringement found and penalised therein and from any act or conduct having the same or similar object or effect.

II. Procedure and forms of order sought by the parties

44 By application lodged at the Registry of the General Court on 19 September 2014, the applicant brought the present action.

45 The applicant claims that the Court should: – annul Articles 1, 7 and 8 of the contested decision, in so far as they concern the applicant; – in the alternative, make use of its unlimited jurisdiction in order to reduce very substantially the fine imposed on the applicant; – grant the applicant the benefit of any annulment, in whole or in part, of the contested decision in the action brought by Servier and draw all appropriate conclusions therefrom in the exercise of the Court’s unlimited jurisdiction; – order the Commission to pay the costs.

46 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs.

III. Admissibility

A. The third head of claim, by which the applicant seeks to be granted the benefit of any annulment of the contested decision in the action brought by Servier

47 As a preliminary point, it must be recalled that, pursuant to Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991, each application is required to state the subject matter of the proceedings and a summary of the pleas in law on which the application is based.

48 According to settled case-law, that information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action. The same considerations must apply to all claims, which must be accompanied by pleas and arguments enabling both the defendant and the Court to assess their validity (see judgment of 7 July 1994, Dunlop Slazenger v Commission, T‑43/92, EU:T:1994:79, paragraph 183 and the case-law cited). It is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the text of the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case-law cited). A fortiori, a general reference in the application to the pleas and arguments relied on in support of another action, even one brought in a related case, does not meet the requirement referred to above (judgment of 24 March 2011, Legris Industries v Commission, T‑376/06, not published, EU:T:2011:107, paragraph 32).

49 In the present case, the general reference in the application, without any further detail or explanation, to the pleas and arguments relied on in support of the action brought in the case giving rise to the judgment delivered today, Servier and Others v Commission (T‑691/14), does not meet the requirement referred to above.

50 Moreover, even if, by the third head of claim in the application, the applicant was seeking to rely on the case-law according to which the Courts of the European Union must grant a company the benefit of any annulment in favour of another company in a situation where they comprise the same economic entity (judgment of 22 January 2013, Commission v Tomkins, C‑286/11 P, EU:C:2013:29, paragraphs 43 and 44), as the applicant argued in the reply, that claim cannot succeed. By its judgment delivered today, Servier and Others v Commission (Case T‑691/14), the General Court dismissed the action in so far as it concerned the settlement agreement between Servier and Niche. The applicant therefore cannot rely for its benefit on any annulment of the contested decision in the action brought by Servier.

51 It follows from the foregoing that the applicant’s third head of claim, seeking to adopt the form of order sought by Servier and its pleadings, must be rejected.

B. The admissibility of certain annexes to the defence and of some evidence adduced in that pleading

1. Arguments of the parties

52 As a preliminary point, the applicant maintains in the reply that the Commission produced in the defence new documents and arguments in support of the arguments put forward in the contested decision. The defence (which contains 40 pages) is claimed to be based in part on new factual matters, primarily intended to support the contested decision, which devotes only 6 out of a total of 919 pages to condemning Biogaran. Relying on the case-law, the applicant claims that the use of new evidence at the stage of the judicial proceedings infringes the rights of the defence.

53 The applicant requested that certain annexes to the defence be declared inadmissible, on the ground that 23 of them were in English and had not been translated into the language of the case, namely French.

54 The Commission disputes that it put forward new evidence in support of the lawfulness of the contested decision and failed to fulfil its obligation to state reasons. The existence of the link between the Biogaran agreement and the settlement agreement is explained in detail in the contested decision in recitals 561 to 569 and 1351 to 1354 thereof.

55 According to the Commission, the three facts which confirm the existence of a link between the Biogaran agreement and the settlement cannot be described as ‘new’, since they are set out in the contested decision or may be inferred from the findings of that decision itself. First of all, the pre-eminent role of Mr M. in Niche’s negotiations with Servier is referred to in recitals 532 and 538 of the contested decision. Next, the discussions concerning Niche’s wish to obtain an amount higher than that allocated to Matrix are mentioned in recital 577 of the contested decision. Finally, Biogaran’s role in the relationship between Servier and the generic company Lupin Ltd is also referred to in recital 979 of the contested decision.

2. Findings of the Court

56 The applicant maintains that the Commission, in breach of the principle of respect for the rights of the defence, puts forward in the defence new documents and arguments in support of the arguments advanced in the contested decision in order to remedy an inadequate statement of reasons.

57 It must be borne in mind in that regard that, in an action for annulment, the Commission cannot, in support of the contested decision, produce new inculpatory evidence not contained in the decision. However, the Court of Justice and the General Court have recognised that the author of a contested decision is entitled to provide explanations at the stage of the judicial proceedings in order to supplement a statement of reasons which is already adequate in itself, since those explanations may serve a useful purpose in relation to review by the Courts of the European Union of the adequacy of the grounds of the decision, since they enable the institution to explain the reasons underlying its decision (see, to that effect, judgments of 16 November 2000, Finnboard v Commission, C‑298/98 P, EU:C:2000:634, paragraph 46; of 13 July 2011, ThyssenKrupp Liften Ascenseurs v Commission, T‑144/07, T‑147/07 to T‑150/07 and T‑154/07, EU:T:2011:364, paragraphs 146 to 149, and of 27 September 2012, Ballast Nedam v Commission, T‑361/06, EU:T:2012:491, paragraph 49).

58 In the present case, the Commission has not infringed either its obligation to state reasons or the applicant’s rights of defence by providing explanations in the defence. Indeed, the factual matters put forward in the defence and described by the applicant as ‘new’ merely support the Commission’s argument that there is a link between the Biogaran agreement and the settlement and are apparent from the contested decision.

59 First of all, as regards the question whether the Commission could provide additional evidence relating to the participation of certain employees of Biogaran and Servier in the negotiations for the Biogaran agreement and the settlement, it should be noted that the email of 4 February 2005 mentioned several times in the contested decision (recitals 566 and 1351) and reproduced in Annex B. 10 to the defence) shows, first, that Mr M. had played a role for Niche in the negotiation of the two agreements (see also recital 538 of the contested decision) and, secondly, that Ms L., the legal director of the Servier group, a recipient of a copy of that email, was involved in the discussions. That email shows that the person who negotiated the Biogaran agreement on behalf of the applicant was also the signatory of the letter of formal notice sent by Servier to Matrix on 7 February 2005, one day before the conclusion of the settlement.

60 Next, as regards the negotiations between Matrix and Niche and Niche’s wish to obtain a higher amount than that of Matrix, the Commission rightly argues that those elements are apparent from recital 577 of the contested decision.

61 Finally, as regards the alleged role played by a director of Biogaran in the conclusion of the settlement between Servier and the generic company Lupin, the Commission is entitled to respond in the defence to the applicant’s arguments, when the applicant seeks to establish that the Commission’s arguments are vitiated by an error of law, namely that the contested decision sought to impute to Biogaran liability for Servier’s acts (see, to that effect, judgments of 13 July 2011, ThyssenKrupp Liften Ascenseurs v Commission, T‑144/07, T‑147/07 to T‑150/07 and T‑154/07, EU:T:2011:364, paragraphs 146 to 149, and of 27 September 2012, Ballast Nedam v Commission, T‑361/06, EU:T:2012:491, paragraphs 49 and 50). The Commission refers to the role of Mr B., the founding chairman of Biogaran, in the agreement between Servier and Lupin, in order to illustrate that Biogaran could be held liable for its direct participation in the infringement and not for the acts alleged against its parent company.

62 As regards the admissibility of certain annexes to the defence, the applicant argues that the documents in question are drafted in English and are not accompanied by translations into the language of the case, namely French.

63 Under the first and second subparagraphs of Article 35(3) of the Rules of Procedure of 2 May 1991, in force at the time when the defence was lodged, the language of the case is to be used in the written and oral pleadings of the parties and in supporting documents, and any supporting documents expressed in another language must be accompanied by a translation into the language of the case. The second subparagraph of Article 7(5) of the Instructions to the Registrar of the General Court of 5 July 2007 provides that where documents annexed to a pleading or procedural document are not accompanied by a translation into the language of the case, the Registrar is to require the party concerned to make good the irregularity if such a translation appears necessary for the purposes of the efficient conduct of the proceedings. It follows from points 64 and 68 of the Practice Directions to the parties before the General Court of 24 January 2012 (OJ 2012 L 68, p. 23) that, if the defence does not comply with the procedural rules relating to the translation into the language of the case of any documents drafted in a language other than the language of the case, a reasonable period is to be prescribed for the purposes of putting it in order.

64 In the light of those provisions, it must be held that, in the absence of a request from a party to that effect, it is only if the translation into the language of the case appears necessary for the purposes of the efficient conduct of the proceedings that it is for the Registrar to have it carried out (see, to that effect, judgment of 15 June 2010, Mediaset v Commission, T‑177/07, EU:T:2010:233, paragraph 37).

65 In the present case, it should be pointed out that the applicant did not expressly request that the Court ask the Commission to translate into French, the language of the present case, the annexes to the defence drafted in English. The applicant only challenged the admissibility of those annexes on the ground that they were not drafted in the language of the case. However, within a reasonable period after lodging the defence, the Commission notified the Registry of the Court, by letter of 28 September 2015, of the translation into French of those annexes. Moreover, the applicant was able to comment on those documents at the hearing. Therefore, in any event, without it being necessary to determine whether that translation was necessary for the purposes of the efficient conduct of the proceedings, the objection of inadmissibility raised by the applicant against the annexes in question must be rejected.

66 Accordingly, the pleas of inadmissibility raised by the applicant must be rejected.

IV. Substance

67 The applicant raises three pleas in support of its claims. It submits, first, that the contested decision fails to establish that it participated in any infringement of the competition rules. Secondly, it challenges the Commission’s factual assessment of the existence of an additional inducive benefit resulting from the Biogaran agreement. Thirdly, it submits that the Commission erred in law by imposing a fine on it. The second plea must be examined first, then the first plea and finally the third plea.

A. The plea alleging distortion of the facts in that the contested decision wrongly finds that the Biogaran agreement served as an additional inducement for Niche to conclude the settlement with Servier

68 By this plea, the applicant disputes the Commission’s assessment of the facts in question, which led the Commission to find that there was a restriction of competition.

1. Arguments of the parties

(a) The error of assessment in the analysis of the link between the Biogaran agreement and the settlement agreement

(1) The chronology of the negotiations for the agreements

69 The applicant submits that the history of the negotiations of the two agreements differs, even though the Biogaran agreement and the settlement agreement between Servier and Niche were signed on the same day. Indeed, several contemporaneous documents show that Biogaran started to negotiate the Biogaran agreement in 2002, nearly two years prior to the start of the discussions relating to the settlement. The applicant thus disputes the claim that the two agreements were negotiated during the same period, as stated in recital 1351 of the contested decision.

70 The fact that the applicant started to negotiate the Biogaran agreement even before the beginning of the dispute between Servier and Niche demonstrates that Biogaran had its own, autonomous and separate interest in signing that agreement, irrespective of the settlement.

71 The applicant argues that the conclusion of the two agreements on the same day reveals not the existence of a link, but simply the fact that the dispute between Servier and Niche had the collateral effect of blocking the pre-existing negotiations between Niche and Biogaran, which resumed in February 2005, a few days before the signing of the settlement agreement.

72 The Commission maintains that it has established in the contested decision that the chronology of the negotiations confirmed the existence of a link between the settlement agreement and the Biogaran agreement.

73 In the first place, Niche confirmed, in a statement of 15 June 2011, that the settlement agreement and the Biogaran agreement had been negotiated at the same time. In the second place, the earlier negotiations between Niche and Biogaran related only to product A and were extended to other compounds only in February 2005. The scope of the agreement was therefore extended at the last moment, which is confirmed by an email of 4 February 2005 sent by Biogaran’s lawyer to Niche. In the third place, contacts between Biogaran and Niche were still in progress in August 2004, over a month after the start of the litigation in the United Kingdom. Even though those contacts were unsuccessful, negotiations between Biogaran and Niche resumed only during the negotiations for the settlement, although the litigation between Servier and Niche was still ongoing. The negotiations concerning product A therefore do not seem to have been paralysed on account of the litigation which had commenced in June 2004.

(2) The legal link between the settlement agreement and the Biogaran agreement

74 According to the applicant, contrary to what the Commission states in recital 1190 of the contested decision, the agreement signed by Biogaran was not ‘dependent’ on Niche’s acceptance of the terms of the settlement agreement. Under neither of those two agreements was the signing or performance of either agreement linked to or dependent on the signing or performance of the other.

75 Moreover, the applicant emphasises that the two agreements are governed by different laws and do not fall within the jurisdictions of the same courts. Similarly, the two agreements are not binding on the same legal persons within the Servier group and were not signed in the same place, since the Biogaran agreement was signed in Paris (France) while the settlement agreement was signed between Niche and Servier in London (United Kingdom).

76 Furthermore, the applicant states that the payment dates provided for by the two agreements were only identical in part, since Biogaran’s payments relating to the supply permitted under the licence were later.

77 The applicant adds that the Commission’s argument relating to the existence of a link between the two agreements is largely based on the statements made by Niche, even though the ambiguity of those statements should have led the Commission to use them with caution. The Commission simply rejected the statements which were contrary to its arguments, on the sole ground that they were subsequent to the Statement of Objections and therefore allegedly less conclusive than the statements made earlier in the context of the administrative procedure.

78 The Commission contends that the two agreements, negotiated simultaneously, were concluded on the same day and provided for payments to be made in instalments on exactly the same dates in relation to the transfer of the product dossiers, which transfer was the rationale for the payment of GBP 2.5 million. The Commission argues that Niche expressly confirmed on several occasions during the administrative procedure, in particular in response to the Statement of Objections, that the Biogaran agreement had been proposed to Niche by Servier in order to provide Niche with the total overall consideration agreed for entering into the global settlement agreement. The Commission refers to a draft settlement between Servier and Niche in which the handwritten word ‘ramipril’ appears in front of a reference to ‘2.5 million’. According to the Commission, those elements show that the price paid by Servier in consideration for Niche’s commitments includes the payment of GBP 2.5 million provided for in the context of the ramipril dossier, that is to say the Biogaran agreement.

79 The Commission acknowledges that Niche added, in its response to the Statement of Objections, that the Biogaran agreement was a genuine commercial agreement with real consideration. Nevertheless, in the same document, Niche maintained that occasionally, although it was not normal commercial practice, agreements could be signed for several products at the same time. Moreover, the Commission points out that Niche’s statements made at a time when Niche was aware of the complaints made against it do not have the same probative value as statements made earlier, in tempore non suspecto.

80 The Commission also argues that the email dated 4 February 2005 sent by Biogaran’s lawyer to Niche concerning the amount at stake corroborates the existence of a link between the two agreements. The parties agreed on an amount to be paid by Biogaran to Niche and subsequently discussed the content of the Biogaran agreement. The primary objective of the agreement was therefore to provide Niche with an additional inducement and not to conclude a commercial agreement, as Biogaran suggests in paragraph 75 of the application. That agreement demonstrates neither Biogaran’s interest in those products nor any incentive to market products which were included within the scope of the agreement only at the end of the negotiations.

81 Moreover, the Commission takes the view that, although the Biogaran and settlement agreements did not have the same signatories, the negotiators involved in the negotiations were, in part, the same. Similarly, the draft Biogaran agreement was circulated within the Servier group and the group’s legal director, Ms L., was a recipient of a copy of the email of 4 February 2005 sent by Biogaran to Niche, although that email related to a contract to be concluded by Biogaran, and also received a copy of the agreement concluded between Niche and Biogaran of 20 July 2004 concerning the capsules of product A.

(3) The intention to induce Niche

82 The applicant claims that the Commission failed to establish in the contested decision that Biogaran intended to induce Niche to sign the settlement. Similarly, nor does the Commission explain the reasons which allegedly led Servier to make that additional payment of GBP 2.5 million through Biogaran, while Servier itself undertook to pay directly to Niche the amount of GBP 11.8 million.

83 The Commission argues that when they concluded their respective settlements with Servier, Niche and Matrix discussed the distribution of the amounts between them. An internal Matrix document of September 2005 shows that the amounts forming the subject matter of the settlements were negotiated and divided equally between Niche and Matrix, although Matrix wished to receive more than Niche (recital 577 of the contested decision). The conclusion of a separate agreement between Biogaran and Niche clearly made it possible to increase the contribution paid by the Servier group to Niche while excluding Matrix. Moreover, Niche confirmed that the payment formed part of the ‘total overall compensation’ of GBP 15.7 million negotiated between Servier and Niche.

84 The Commission adds that it did not need to show that Biogaran intended to induce Niche to sign the settlement. The intention of the parties does not constitute a necessary element for determining the restrictive nature of the agreement. Moreover, the Commission considers that it has established the indissociable nature of the two agreements concluded, respectively, by Biogaran and its parent company, Servier, with Niche. Since Biogaran and Servier constitute a single economic entity, it was not necessary to show that, within that entity, each of its parts intended to induce Niche to sign the settlement agreement.

85 The Commission argues that the terms of the Biogaran agreement, according to which the parties could not claim reimbursement of the amounts paid in the event of a failure to obtain marketing authorisations, were not intended to encourage Biogaran to apply for marketing authorisations.

86 First of all, Biogaran’s contractual obligations did not include the obligation to apply for marketing authorisations on the basis of the dossiers transferred (Clauses 2.2 and 3 of the Biogaran agreement).

87 Next, if Biogaran had not obtained a marketing authorisation within 18 months and, pursuant to Clauses 14.2 and 14.4 of the Biogaran agreement, the agreement had been automatically terminated, the payment already paid to Niche was not refundable.

88 Moreover, Biogaran was not subject to any exclusivity as regards the product dossiers and could therefore easily avoid being bound to Niche, by not applying for a marketing authorisation on the basis of the dossiers, since Biogaran was under no obligation to do so. That is indeed what happened, as Biogaran concluded another agreement with company A. for the acquisition of several dossiers, also relating to product A in various dosages. The Commission notes that the agreement concluded with company A., unlike the Biogaran agreement, provided that company A. would reimburse the payments transferred by Biogaran in the event of a failure to obtain marketing authorisation. Such a difference between the terms of those two agreements suggests that Niche had no guarantee that Biogaran was going to apply for marketing authorisations and obtain supplies from Niche following the Biogaran agreement. In so far as the payment should, in any event, have been paid to Niche before it was possible to ascertain whether Biogaran was going to obtain the marketing authorisations, Niche had no guarantee that Biogaran was going to apply for the marketing authorisations and obtain supplies from Niche.

89 Finally, the Commission argues that Biogaran’s explanations concerning the payment of the amount of GBP 2.5 million are implausible. Biogaran was unable to justify, first, why it had paid that amount — whether as an incentive for it to apply for marketing authorisations, as a means of securing a second source of supply for product A or as a means of obtaining ‘security’ dossiers selected at random (except for product A) — and, secondly, why it had taken the risk of losing that payment. The Commission likewise questions the unusual structure of the Biogaran agreement and in particular the non-refundable nature of the payment. Indeed, the Biogaran agreement differs from the agreement concluded with company A., which stipulated that in the event of a failure to obtain marketing authorisations, company A. would reimburse the payment received.

(b) The taking into account of the applicant’s commercial interest in concluding the Biogaran agreement

90 The applicant argues that the Biogaran agreement was justified by Biogaran’s commercially legitimate and pro-competitive intention of securing several sources of supply in order to launch and develop products on the generic market, and in particular product A, by turning to Niche, a long-standing partner which had the requisite dossiers and supply capabilities. The fact that the GBP 2.5 million payment constituted reasonable consideration for the rights acquired under the Biogaran agreement is confirmed by the fact that that sum was not taken into account by the Commission in the contested decision in the calculation of the amount of the fine imposed on Niche.

91 The Commission rejects the applicant’s argument that it was securing sources of supply, which the Commission describes as ‘implausible’, on the ground that Biogaran took no steps to obtain the marketing authorisations.

(1) Product A

92 The applicant states that, in view of the commercial success of product A, obtaining the rights necessary for the launch of the generic version of that medicinal product represented a major challenge for Biogaran. Thus, in order to secure its supply, Biogaran wished to obtain two dossiers from different market operators, by concluding two agreements, the first with company A. in December 2004 and the second with Niche in February 2005. The applicant emphasises that acquiring several sources of supply is a common practice for generic companies due to the technical and regulatory difficulties encountered during the development of a generic.

93 The applicant submits that, in the present case, securing two sources of supply proved to be relevant for two reasons. First, Niche’s product A 10 mg dossier proved to be very weak from an analytical perspective, which could have delayed the assessment by the competent authorities (Annex A. 17 to the application). Secondly, the measures of inquiry taken by the Agence française de sécurité sanitaire des produits de santé (AFSSAPS) (Agency for the Safety of Health Products, France) in July 2005 in connection with several of company A.’s dossiers cast doubt on their validity (Annex A. 18 to the application).

94 Moreover, the securing of a second source of supply for product A from Niche offered several advantages by comparison with the agreement concluded with company A. First, the Biogaran agreement allowed Biogaran to obtain dossiers for product A in tablet form and product A 10 mg, which were not covered by the agreement with company A.; secondly, the agreement with Niche offered the prospect of opportunities in the United Kingdom and in a non-EEA country at a time when Biogaran was seeking to pursue its activities abroad.

95 However, the applicant preferred the dossiers of company A., because they allowed a faster entry into the market, since company A. had filed its marketing authorisation dossiers before Niche.

96 The applicant argues that the financial stakes justified its supply strategy. Since its launch in France, that generic product has generated a turnover of more than EUR 79 million (EUR 83 million, according to the update referred to in the reply). In the light of those factors, the applicant argues that it had to secure its supply of product A, in order to justify the payment to Niche of GBP 2.5 million and so as not to be limited solely to the turnover generated by the sales of product B.

97 Finally, the applicant adds that the payment of that amount to Niche was all the more justified because Niche had granted it exclusive rights to the product dossiers in France, the United Kingdom and a non-EEA country, which was not the case with other non-exclusive agreements concluded by Biogaran. In that context, the comparison made by the contested decision with those other agreements is therefore ineffective.

98 The Commission takes the view that the audit produced by Biogaran after the conclusion of the Biogaran agreement, revealing the alleged weaknesses of the Niche dossier, works to the detriment of the applicant’s case. That argument shows that Biogaran did not have any information about the performance of Niche’s product A before entering into that agreement and took the risk of paying GBP 2.5 million, even though the product A dossier was potentially worthless. Although that audit concerning the quality of the Niche dossiers might justify the securing of a second source of supply from company A., it cannot explain why the applicant wanted to pay a higher price than that for the dossier of company A. Biogaran paid company A. EUR 330000 in total under the two agreements relating to product A, an amount well below the amount paid to Niche.

99 The Commission points out that the opportunity for Niche to supply tablets and the 10 mg dosage could not justify the agreement at issue. Two months after the agreement, although Biogaran had the possibility of filing the Niche dossier with the competent authorities, it concluded a second agreement with company A. for product A in tablet form.

100 Moreover, the Commission disputes the applicant’s argument that Biogaran was encouraged to conclude the Biogaran agreement because of an investigation initiated by AFSSAPS in July 2005 concerning company A. That event could not have influenced Biogaran because it occurred after the Biogaran agreement.

101 Furthermore, Biogaran has not adduced any evidence of the usefulness of the Biogaran agreement in the context of its planned expansion abroad.

102 The Commission points out that, although Biogaran has generated a turnover of more than EUR 79 million since 2007, the income deriving from Niche’s product A is equivalent to 0 (recital 567 of the contested decision). In that context, the Commission disputes the claim that Biogaran had to acquire a second source of supply from Niche.

103 Finally, the Commission disputes the argument that the exclusivity granted by the Biogaran agreement makes the comparison with other agreements ineffective. The comparison shows that none of the other agreements provided for a non-refundable payment. According to the Commission, the payment was already lost and Biogaran made no effort to make a return on it. Similarly, exclusivity has no value if development of the product was not sufficiently advanced or if there were other regulatory barriers.

(2) Product B

104 The applicant claims that the Biogaran agreement enabled it to market product B 10 mg and to achieve a turnover of EUR 150000 (EUR 211000 according to the update in the reply). The marketing of that product was entrusted to Almus, one of the main wholesale distributors in France.

105 The Commission argues that the agreement previously concluded between Biogaran and Bioglan (now Niche) concerning product B provided that the payment by Biogaran was refundable in the event of a failure to obtain the marketing authorisations, which was not the case with the Biogaran agreement. Moreover, Niche provided no guarantee, by that agreement, to transfer the marketing authorisation it had obtained in France in 2001, since that transfer required a renewal of the marketing authorisation and Niche had not applied for its renewal to the competent authorities.

106 As regards the marketing contract awarded to Almus and its loyalty, the Commission argues that product B did not lead to the conclusion of that contract, in that product B was only one of the approximately 23 compounds covered by that contract.

(3) Product C

107 The applicant claims that it has been able to market product C since 2000 as a result of a number of agreements concluded with Disphar. However, it decided to secure other sources of supply because of the uncertainty concerning the renewal of the supply agreement with Disphar and its desire to expand its activities abroad. Biogaran did not ultimately make use of the product dossiers granted by Niche, because of the renewal of the agreement concluded with Disphar.

108 Accordingly, the fact that, for two of the three products, Biogaran did not obtain a marketing authorisation on the basis of the dossiers transferred by Niche cannot suggest the existence of a link between the Biogaran agreement and the settlement. This simply reveals Biogaran’s desire to secure several sources of supply in accordance with the practice in the sector concerned.

109 The Commission takes the view that it is not credible that Biogaran paid such a large amount solely for the opportunity to possess a product dossier which it never used. Biogaran did not even insist that Niche ensure that the transfer of the dossier take place before the agreement at issue was automatically terminated owing to the failure to obtain marketing authorisations.

2. Findings of the Court

(a) Preliminary remarks

110 As a preliminary point, it should be pointed out that the Biogaran agreement was regarded by the Commission in the contested decision as an inducement from Servier to Niche, in addition to that resulting from the settlement agreement between Servier and Niche, in order to convince Niche to give up its efforts to enter the perindopril market. The Biogaran agreement is, according to the Commission, a component of the infringement represented by that settlement agreement, which constitutes a restriction of competition by object. The Biogaran agreement can therefore be unlawful in nature only if the settlement agreement between Servier and Niche is of the same nature. In those circumstances, it is necessary to set out, for the purposes of the examination of the present action, the legal context of the settlement agreement with which the Biogaran agreement was linked.

111 It should be noted in that regard that a patent dispute settlement agreement may have no negative impact on competition. That is the case, for example, if the parties agree that the patent in question is not valid and therefore provide for the immediate market entry of the generic company.

112 In the present case, the agreement concluded between Servier and Niche does not fall into that category because it contains non-challenge clauses in respect of patents and non-marketing clauses in respect of products, which are, by themselves, restrictive of competition. The non-challenge clause undermines the public interest in eliminating any obstacle to economic activity which may arise where a patent was granted in error (see, to that effect, judgment of 25 February 1986, Windsurfing International v Commission, 193/83, EU:C:1986:75, paragraph 92) and the non-marketing clause entails the exclusion from the market of one of the patent holder’s competitors.

113 Nevertheless, the insertion of such clauses may be legitimate, but only in so far as it is based on the parties’ recognition of the validity of the patent in question (and, consequently, of the infringing nature of the generic products concerned).

114 The presence of non-marketing and non-challenge clauses whose scope is limited to that of the patent in question is, however, problematic when it is apparent that the generic company’s agreement to those clauses is not based on its recognition of the validity of the patent. As the Commission rightly points out, ‘even if the limitations in the agreement on the generic undertaking’s commercial autonomy do not go beyond the material scope of the patent, they constitute a breach of Article 101 [TFEU] when those limitations cannot be justified and do not result from the parties’ assessment of the merits of the exclusive right itself’ (recital 1137 of the contested decision).

115 In that respect, it should be noted that the existence of a ‘reverse payment’, that is to say a payment from the originator company to the generic company, is doubly suspect in the context of a settlement agreement. In the first place, it must be borne in mind that a patent is intended to reward the creative effort of the inventor by allowing him to make a fair profit from his investment and that a valid patent must, in principle, allow a transfer of value to its holder — for example, through a licence agreement — and not vice versa. In the second place, the existence of a reverse payment gives rises to doubts as to whether the settlement is actually based on the recognition, by the parties to the agreement, of the validity of the patent in question.

116 However, the mere presence of a reverse payment does not mean that there is a restriction by object. It is possible that some reverse payments, where they are inherent in the settlement of the dispute in question, may be justified. However, where an unjustified reverse payment occurs in the conclusion of the settlement, the generic company must then be regarded as having been induced by that payment to agree to the non-marketing and non-challenge clauses and it must be concluded that there is a restriction by object. In that case, the restrictions of competition introduced by the non-marketing and non-challenge clauses no longer relate to the patent and to the settlement, but rather can be explained by the conferral of a benefit inducing the generic company to abandon its competitive efforts.

117 It must be pointed out that, although neither the Commission nor the Courts of the European Union are competent to rule on the validity of the patent, it is nevertheless the case that those institutions may, in the context of their respective powers and without ruling on the intrinsic validity of the patent, find that it has been used abnormally, in a manner which has no relation to its specific subject matter (see, to that effect, judgments of 29 February 1968, Parke, Davis and Co., 24/67, EU:C:1968:11, pp. 71 and 72, and of 31 October 1974, Centrafarm and de Peijper, 15/74, EU:C:1974:114, paragraphs 7 and 8; see also, by analogy, judgments of 6 April 1995, RTE and ITP v Commission, C‑241/91 P and C‑242/91 P, EU:C:1995:98, paragraph 50, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 104 to 106).

118 Inducing a competitor to accept non-marketing and non-challenge clauses, in the sense described in paragraph 116 above, or its corollary, accepting such clauses because of an inducement, constitutes an abnormal use of the patent.

119 As the Commission rightly stated in recital 1137 of the contested decision, ‘patent law does not provide for a right to pay actual or potential competitors to stay out of the market or to refrain from challenging a patent prior to entering the market’. Likewise, according to the Commission, ‘patent holders are not entitled to pay generic companies to keep them off the market and reduce the risks of competition, whether in the context of a patent settlement agreement or otherwise’ (recital 1141 of the contested decision). Lastly, the Commission correctly added that ‘paying or otherwise inducing potential competitors to stay out of the market [was] not part of any patent right, nor [was] it one of the means provided for under patent law to enforce the patent’ (recital 1194 of the contested decision).

120 Where an inducement has been found, the parties may no longer rely on their recognition, in the context of the settlement, of the validity of the patent. The fact that the validity of the patent is confirmed by a judicial or administrative body is, in that regard, irrelevant.

121 It is then the inducement, and not the recognition of the validity of the patent by the parties to the settlement, which must be regarded as the real cause of the restrictions of competition introduced by the non-marketing and non-challenge clauses (see paragraph 112 above), which — since they are in that case entirely illegitimate — therefore reveal a sufficient degree of harm to the proper functioning of normal competition that a restriction by object may be found.

122 Where they involve an inducement, the agreements in question must therefore be regarded as market exclusion agreements, in which the ‘stayers’ are to compensate the ‘goers’. Such agreements actually constitute a buying-off of competition and must therefore be classified as restrictions of competition by object, as follows from the judgment of 20 November 2008, Beef Industry Development Society and Barry Brothers (C‑209/07, EU:C:2008:643, paragraphs 8 and 31 to 34), and the Opinion of Advocate General Trstenjak in Beef Industry Development Society and Barry Brothers (C‑209/07, EU:C:2008:467, point 75), referred to inter alia in recitals 1139 and 1140 of the contested decision. Moreover, the exclusion of competitors from the market constitutes an extreme form of market sharing and of limitation of production (judgment of 8 September 2016, Lundbeck v Commission, T‑472/13, under appeal, EU:T:2016:449, paragraph 435), which, in a context such as that of the agreements in question, reveals a degree of harm which is all the greater since the companies excluded are generic companies, the market entry of which is, as a rule, favourable to competition and which also contributes to the public interest in lowering the cost of healthcare. Lastly, that market exclusion is augmented, in the agreements at issue, by the fact that it is not possible for the generic company to challenge the patent in question.

123 It follows from all the foregoing that, in the context of patent dispute settlement agreements, a finding of a restriction of competition by object presupposes that the settlement agreement contains both an inducement in the form of a benefit for the generic company and a corresponding limitation of the generic company’s efforts to compete with the originator company. Where those two conditions are met, a finding of restriction of competition by object must be made in view of the harmfulness of that agreement to the proper functioning of normal competition.

124 By the judgments delivered today, Servier and Others v Commission (T‑691/14) and Niche Generics v Commission (T‑701/14), the Court held that those two conditions were met, in particular that the Commission correctly considered that the sum of GBP 11.8 million paid to Niche by Servier under the settlement agreement concluded between those two companies was an inducement intended to exclude Niche from the market and that that agreement constituted a restriction of competition by object.

125 Accordingly, the plea raised at the hearing by Biogaran, in response to the written question from the Court relating to the settlement agreement, alleging that that agreement did not constitute an infringement of Article 101 TFEU, must be dismissed, without it being necessary to rule on its admissibility.

(b) The existence of an inducement in the form of a benefit represented by the Biogaran agreement

126 Biogaran argues that the Biogaran agreement is not a further incentive for Niche to conclude the settlement agreement, but an autonomous commercial agreement concluded at arm’s length.

127 In that regard, it follows from Article 2 of Regulation No 1/2003 and from settled case-law that, in the field of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 58, and of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 86; see, also, judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 91 and the case-law cited).

128 In that context, any doubt on the part of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement in question to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 92 and the case-law cited).

129 It is necessary to take into account the principle of the presumption of innocence resulting in particular from Article 48 of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the penalties which may ensue, the presumption of innocence applies, inter alia, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 93 and the case-law cited).

130 In addition, account must be taken of the non-negligible stigma attached to a finding of involvement in an infringement of the competition rules for a natural or legal person (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 95 and the case-law cited).

131 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement and to support the firm conviction that the alleged infringement constitutes a restriction of competition within the meaning of Article 101(1) TFEU (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 96 and the case-law cited).

132 It is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the Commission, viewed as a whole, meets that requirement (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 97 and the case-law cited).

133 The existence of an anticompetitive practice or agreement must sometimes even be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 7 January 2004, Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraph 57).

134 For example, although parallel behaviour may not by itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not correspond to the normal conditions of the market (judgment of 14 July 1972, Farbenfabriken Bayer v Commission, 51/69, EU:C:1972:72, paragraph 25).

135 Likewise, the presence of a ‘side deal’ — the expression used by the Commission in recital 1190 of the contested decision — may constitute, as regards the settlement of a patent dispute, a strong indication of the existence of an inducement and, consequently, of a restriction of competition by object.

136 In this connection, it should be noted that the Biogaran agreement was regarded by the Commission as a ‘side deal’, the expression used by the Commission in recital 1190 of the contested decision. In recitals 1349 and 1351 of that decision, the Commission considered that, through the Biogaran agreement, which was in the Commission’s view linked to the settlement agreement, Servier provided Niche with an additional inducement for Niche to conclude the settlement and that the existence of such an inducement followed from certain elements indicating that the Biogaran agreement was not an arm’s length deal.

137 It should be explained that a side deal is a normal commercial agreement ‘linked’ to a dispute settlement agreement which contains clauses which are by themselves restrictive. Such a link exists, in particular, where the two agreements are concluded on the same day, where they are legally linked, the binding nature of one of the agreements being conditional upon the conclusion of the other agreement, or where, in the light of the context in which they are concluded, the Commission is able to establish that they are indissociable. It may be added that, the shorter the time between the conclusion of each agreement, the easier it will be for the Commission to establish that indissociable nature. The fact that the settlement agreement and the side deal are concluded on the same day or that there is a contractual link between them is an indication that those agreements form part of a single contractual framework. If those agreements were not concluded on the same day (and if there were no contractual link between them), one of the parties to the negotiation would grant the other party everything it wants without any certainty of ultimately obtaining the expected quid pro quo. That temporal or legal link between the two agreements is also an indication that they were negotiated together.

138 The side deal is a normal commercial agreement that could exist independently without the settlement of a dispute being at issue. Likewise, the conclusion of a settlement agreement does not require the concurrent conclusion of a commercial agreement. Thus, the two agreements do not need to be linked. Moreover, that linkage cannot be justified by the settlement of a dispute, because the purpose of the side deal is not to reach such a settlement but rather to carry out a commercial transaction.

139 In addition, a side deal involves value transfers, of a financial or non-financial nature, between the parties. It may involve, in particular, the transfer of value from the patent holder or from the subsidiary with which it constitutes a single economic entity to the generic company. There is therefore a risk that the linking of a commercial agreement with a settlement agreement containing non-marketing and non-challenge clauses, which are, by themselves, restrictive of competition, is actually intended — under the guise of a commercial transaction, taking the form, as the case may be, of a complex contractual arrangement — to induce the generic company to accept those clauses, through a value transfer provided for in the side deal.

140 Consequently, the fact that a commercial agreement, which does not normally have the settlement of a dispute as its subject matter, and which serves as a vehicle for a transfer of value from the originator company, or from the subsidiary with which that company constitutes a single economic entity, to the generic company, is, in the circumstances set out in paragraph 137 above, linked with a dispute settlement agreement containing competition-restricting clauses is a strong indication of the existence of a reverse payment.

141 However, the strong indication referred to in the preceding paragraph is not sufficient and the Commission must therefore support it with other consistent evidence justifying the conclusion that there is a reverse payment. Such a payment, in the specific context of side deals, corresponds to the part of the payment made by the originator company which exceeds the ‘normal’ value of the asset traded (or, as the case may be, to the part of the ‘normal’ value of the asset traded which exceeds the payment made by the generic company).

142 In the present dispute, in finding that the Biogaran agreement had served as an additional inducement for Niche, the Commission stated, in recital 1351 of the contested decision, on the basis of a number of indications, that that agreement ‘was not an arm’s length deal’ and that it ‘was not normal commercial practice’.

143 In that regard, it should be noted that the concept of ‘normal competitive conditions’, which is similar to that of ‘arm’s length commercial conditions’, even though it is not used in relation to agreements, decisions and concerted practices, is not alien to competition law, since it is used in the particular field of State aid in order to determine whether a State has acted like a private investor (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68), that is to say, whether the advantage granted to the undertakings in question constitutes the normal remuneration for a quid pro quo obtained by the State. That concept may therefore constitute, by analogy, a relevant reference parameter when determining whether two companies that concluded a commercial transaction did so on the basis of economic considerations limited to the economic value of the asset traded, for example to its prospects of profitability, and, thus, at arm’s length.

144 Where there are indicia or evidence put forward by the Commission in order to support a finding that the side deal was not concluded at arm’s length, the parties to the agreements may present their version of the facts, supporting their claims with the evidence that they are able to provide and which permits the conclusion that the commercial agreement, although linked to the settlement agreement, is justified by reasons other than the exclusion of a competitor by means of a reverse payment. The parties to the agreements may thus argue that the side deal was concluded at arm’s length by adducing relevant evidence concerning, for example, the industrial and commercial practices in the sector or the particular circumstances of the case.

145 In the light of all the evidence available to it and, as the case may be, the lack of an explanation or the lack of a plausible explanation from the parties to the agreements, the Commission may be justified in finding, following an overall assessment, that the side deal was not concluded at arm’s length, that is to say that the payment made by the originator company exceeds the value of the asset traded (or that the value of the asset transferred to the generic company exceeds the payment made by the latter). The Commission may thus conclude that there is a reverse payment.

146 A reverse payment, if it is not intended to compensate for costs inherent in the settlement, therefore constitutes an inducive benefit (see paragraph 116 above). That is the case where the purpose of a side deal is not to settle a dispute but rather to carry out a commercial transaction (see paragraph 138 above).

147 However, the parties to the agreement may still argue that the benefit in question is insignificant, if the amount of that benefit is insufficient to be regarded as a significant inducement to accept the competition-restricting clauses set out in the settlement agreement.

148 It is now appropriate to apply to the particular circumstances of the present case the principles set out in the foregoing paragraphs.

149 In the present case, it is common ground that Biogaran paid GBP 2.5 million to Niche. That payment stemmed from the Biogaran agreement, under which Niche undertook to transfer to Biogaran product dossiers and a marketing authorisation for products unrelated to perindopril.

150 Although the Biogaran agreement and the settlement agreement between Servier and Niche are formally separate legal acts, governed by different laws and not falling within the jurisdictions of the same courts, there are several elements which establish the existence of a link between those two agreements.

151 The Commission rightly pointed out, in recital 1351 of the contested decision, that the chronology of the agreements was one of the elements supporting a finding of the existence of such a link between them. Indeed, those agreements were concluded on the same day. Moreover, the payment dates stipulated by the two agreements were the same, that is to say no later than 14 February 2005 and 5 October 2005, and only the payments relating to the supply of medicinal products provided for by the Biogaran agreement were later.

152 The Commission also correctly pointed out that the Biogaran agreement was negotiated at the same time as the settlement agreement, based in particular on Niche’s statement of 15 June 2011. Although Niche qualified that statement subsequently, at the end of the administrative procedure, by producing several documents describing discussions concerning the licence almost two years before the start of the discussions concerning the settlement, that position of Niche, at a time when that company was aware of the complaints against it, does not have the same probative value as its previous statements.

153 Next, while the Commission does not deny that Biogaran and Niche were indeed in contact concerning product A even before the dispute between Servier and Niche began, there is no evidence in the file to support the claim made by the applicant that that dispute had the effect of paralysing the negotiations between Niche and Biogaran. In that regard, an email of 4 February 2005 shows that the negotiations for the conclusion of the Biogaran agreement were very advanced at that date, while the litigation between Niche and Servier was still ongoing and was only settled on 8 February 2005. The simultaneity of the negotiations is a strong indication of the existence of a link between the two agreements.

154 Moreover, while the two agreements do not have the same signatories and were signed respectively in Paris, as regards the Biogaran agreement, and in London, as regards the settlement agreement between Servier and Niche, they had, in part, the same negotiators. On the one hand, Mr M., one of the directors of Niche, participated in the negotiations for both agreements. On the other hand, it is clear from the email of 4 February 2005, sent by Biogaran’s lawyer to the director of Niche, that the person who negotiated the agreement with Niche on behalf of Biogaran was also the signatory of the letter of formal notice sent by Servier to Matrix on 7 February 2005, the day before the conclusion of the settlement between Servier and Matrix. As the Commission points out, it is likely that that person was aware of the settlement with Niche, in view of the linkage between the settlement agreement between Servier and Niche and the Matrix agreement. A copy of that same email was sent to the legal director of the Servier group, although it related to a contract concerning Biogaran.

155 Finally, the Commission rightly maintains that the fact that the payments from Biogaran relating to the supply of medicinal products — and not to the transfer of product dossiers, which transfer was the rationale for the Biogaran agreement — were later confirms the existence of a link between the agreements. It is the transfer of dossiers that constitutes the very essence of the licensing agreement, and not the supply of products by Niche. Thus, the simultaneous nature of the payments of GBP 2.5 million, in consideration for the product dossiers, and of GBP 11.8 million, provided for in the settlement, confirms the existence of a link between the two agreements.

156 It follows from the foregoing considerations (see paragraphs 150 to 155 above) that the Biogaran agreement constituted a side deal linked to the settlement agreement. The fact that that agreement, which served as a vehicle for a transfer of value to Niche, is associated with the agreement for the settlement of the dispute between Servier and Niche, even though that side deal is presented as a normal commercial agreement which does not have the settlement of a dispute as its subject matter, is a strong indication that the transfer of value in question is not merely the quid pro quo for the asset transferred under the side deal, but also involves a reverse payment (within the meaning of that expression in relation to side deals).

157 Moreover, the Commission found a number of consistent indications confirming the finding of the existence of a reverse payment.

158 First, the Commission, for the purpose of arguing that the consideration obtained by Biogaran could not be valued at GBP 2.5 million, correctly pointed out that that amount was much higher than the amount paid by Biogaran to another generic company, company A., in order to acquire several dossiers relating to product A in tablet form in various dosages. Biogaran paid company A. a total of EUR 330000 under the two agreements relating to product A, an amount well below the amount of GBP 2.5 million, even though the latter amount also covered product B and product C.

159 Next, the Commission stated, again correctly, that the absence of a clause in the Biogaran agreement, unlike in the agreement with company A., allowing Biogaran to claim reimbursement of the amounts paid to Niche in the event of a failure to obtain marketing authorisations was a sign that the agreement was not aimed at encouraging Biogaran to apply for those marketing authorisations and was not in the nature of a normal commercial agreement.

160 Finally, it was reasonable of the Commission to point out that Niche had repeatedly stated during the administrative procedure that the Biogaran agreement had been proposed to Niche by Servier in order to provide Niche with the total overall consideration agreed for entering into the global settlement agreement with Servier. It is also apparent from a draft settlement agreement between Servier and Niche, annexed to the defence and containing the list of payments to be made, that a payment of GBP 2.5 million for the benefit of Niche was envisaged in relation to ramipril, one of the products covered by the Biogaran agreement. As the Commission rightly argues, it is also apparent from the email of 4 February 2005, already mentioned (see, in particular, paragraph 154 above), that the parties to the Biogaran agreement had agreed to the payment of GBP 2.5 million even before Biogaran’s consideration for such a sum had been negotiated and agreed by the contracting parties. Niche itself also pointed out in the course of the administrative procedure, before retracting that statement, that the Biogaran agreement was not a normal commercial practice and that the magnitude of the payment formed part of the settlement (recital 562 of the contested decision).

161 However, the applicant has not adduced any specific evidence to show that the acquisition of Niche’s product dossiers for GBP 2.5 million could reasonably be regarded as a profitable investment (see, to continue the analogy with the concept of a ‘private investor in a market economy’ begun in paragraph 143 above, paragraph 84 of the judgment of 12 December 2000, Alitalia v Commission, C‑296/97, EU:T:2000:289, in which it is stated that the conduct of a private investor in a market economy is guided by prospects of profitability) or, at the very least, as being such as to generate, for the acquirer of those product dossiers, income capable of compensating for the high cost of acquiring them.

162 Moreover, there is nothing in the file to explain how Niche’s dossiers could yield for their acquirer profits which could offset such an acquisition cost. In that regard, it should be pointed out that Biogaran’s total turnover as a result of the agreement amounted only to between EUR 100000 and EUR 200000.

163 It may be noted, furthermore, that there is no evidence in the file to show that, before concluding the Biogaran agreement, the applicant had required Niche to provide it with all the data necessary to ensure that the price quoted for the product dossiers in question was not overstated in view of their foreseeable profitability.

164 It follows from the foregoing, in the light of all of the evidence discussed before the Court, that the Commission established to the requisite legal standard the existence of a reverse payment which was not inherent in the settlement of the dispute at issue (see paragraph 146 above). The Commission therefore reasonably concluded that the payment of GBP 2.5 million to Niche under the Biogaran agreement constituted an additional inducive benefit and not a transaction carried out at arm’s length.

165 Lastly, it must be noted, in view of the considerations set out in the preceding paragraphs, that it has not been established that the benefit in question is insignificant, that is to say, of an amount insufficient to be regarded as a significant inducement to accept the anticompetitive clauses contained in the settlement agreement (see paragraph 147 above).

166 That conclusion cannot be called into question by the applicant’s other arguments.

167 First, in the response to the Letter of Facts, Biogaran claimed that ‘the absence of reimbursement of the amounts [which it had] paid … in the event of a failure to obtain marketing authorisations was intentional on the part of Niche and was aimed at ensuring [that Biogaran do] what was required to obtain such marketing authorisations so as to generate a profitable turnover for Niche’.

168 However, that argument, reproduced by Biogaran in its application, cannot be accepted. The structure of that agreement provides no guarantee that Biogaran would apply for marketing authorisations and obtain supplies from Niche, since the payment was to be paid to Niche before it knew whether Biogaran was going to obtain the marketing authorisations. The Commission rightly points out that Biogaran’s contractual obligations did not include the obligation to apply for marketing authorisations on the basis of the transferred dossiers (Clauses 2.2 and 3 of the Biogaran agreement). Moreover, even if Biogaran did not obtain the marketing authorisations within 18 months from the date of the entry into force of the agreement, the agreement had to be automatically terminated and neither party had the right to compensation. Furthermore, Biogaran was not subject to any exclusivity, since it could apply for marketing authorisations on the basis of dossiers other than those transferred by Niche.

169 Although Biogaran referred, in its response to the Letter of Facts, to other agreements signed by it, which did not contain a reimbursement clause, those agreements contained payments in several instalments and the payments were considerably lower than the single payment of GBP 2.5 million at issue in the present case.

170 Secondly, the applicant claims that the Biogaran agreement was intended to ensure that it had a second source of supply for product A.

171 That argument cannot be accepted.

172 The applicant had already signed an agreement with company A. for the supply of product A in December 2004, before the agreement at issue. Similarly, following an audit in March 2005 of Niche’s product dossier relating to product A in the form of 10 mg tablets, a form and dosage which were not covered by the agreement with company A., Biogaran noted that the dossier was very weak from an analytical perspective. Thus, the Commission rightly argues that, in view of those elements, it is surprising that Biogaran agreed to pay a considerably higher amount for that dossier than for the dossier of company A. Although Biogaran states that product A has generated for it a turnover of more than EUR 79 million since 2007, it is apparent from recital 569 of the contested decision, which Biogaran does not dispute, that Biogaran’s overall turnover from the Biogaran agreement remained below EUR 200000.

173 Thirdly, as regards the product B dossier, Biogaran does not dispute that in 2001 Biogaran itself concluded with Bioglan (now Niche) a commercial agreement concerning the compound for product B 5 mg and 10 mg which, unlike the Biogaran agreement, provided for a refundable payment in the event of a failure to obtain marketing authorisations. It should be noted that the fact that the Biogaran agreement did not provide such a refund guarantee, as provided for in the previous agreement between Bioglan and Biogaran, confirms that the transfer of the product B dossier was not a transaction carried out at arm’s length.

174 Fourthly, as regards the product C dossier, Biogaran acknowledges that Niche’s product dossier was not used and that Biogaran continued its business relationship with Disphar. Similarly, although the Biogaran agreement had already been terminated because of the failure to obtain marketing authorisations, that dossier was transferred only in January 2007, that is to say after Niche had already received the whole payment, which was non-refundable. The Commission rightly argues that it is not credible that Biogaran paid such a large amount when it had for several years had a supply contract with Disphar and that the mere fact that the renewal of the Disphar agreement was uncertain did not justify such a transaction.

176 Finally, the applicant submits that the Commission has not established the existence of anticompetitive intentions on the part of Biogaran.

177 In that regard, it is apparent from recital 577 of the contested decision, which is not seriously challenged by Biogaran, that the payments provided for by the settlement agreements concluded by Servier with Niche and Matrix were negotiated and divided equally between Niche and Matrix, although Matrix wished to receive more than Niche. The Commission rightly argues that the Biogaran agreement made it possible, under the guise of a seemingly ordinary transaction, to increase the contribution paid by the Servier group to Niche while excluding Matrix. Niche also confirmed that the amount of GBP 2.5 million formed part of the GBP 15.7 million ‘total overall compensation’ negotiated between Niche and Servier (recital 560 of the contested decision). Although the Commission does not put forward additional evidence on the reasons prompting Servier to use Biogaran to induce Niche, the evidence gathered by the Commission constitutes a conclusive set of indicia of the existence of an inseparable link between the payment of GBP 2.5 million and the main payment made by Servier to Niche under the settlement agreement.

178 In any event, it must be pointed out that the parties’ intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 118).

179 It follows from the foregoing that the Commission correctly concluded that the payment of GBP 2.5 million to Niche under the Biogaran agreement constituted an additional inducive benefit.

180 It should be added that the additional inducement is sufficiently decisive in that it had a determining influence on Niche’s decision not to enter the perindopril market. The Commission noted, in recital 577 of the contested decision, without this being seriously challenged, that the amounts which were the subject matter of the settlements concluded by Servier with Niche and Matrix, respectively, were originally divided equally, but that the payment from Biogaran to Niche ultimately made it possible to increase the contribution paid by the Servier group to Niche without Matrix being aware of this. Moreover, Niche itself confirmed that the additional payment formed part of the ‘total overall compensation’ which it had negotiated with Servier. In the light of that evidence, it must be concluded that, without the Biogaran agreement, Niche would probably not have entered into the settlement agreement. Therefore, it is the combined actions of Servier and its subsidiary which allowed a restriction of competition to occur.

181 That finding alone supports the conclusion that there was a restriction of competition by object in which Biogaran directly participated. The fact that Biogaran was not a competitor of Niche at the material time, even if it were established, has no bearing on that conclusion. As the Court of Justice has held, a company may participate in a cartel without necessarily operating on the market affected by the restriction of competition (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 34).

182 The applicant’s argument that the Biogaran agreement does not contain an anticompetitive clause cannot be relied upon in the light of the foregoing evidence. That fact does not have the effect of depriving the agreement of its true nature as a restriction, inasmuch as the purpose of that agreement is to act as a supplement to the settlement containing such clauses.

183 Lastly, the fact that the Commission did not take into account the payment of GBP 2.5 million in the calculation of the amount of the fine imposed on Niche is not such as to establish that the Biogaran agreement did not constitute an additional transfer of value aimed at inducing Niche to conclude the settlement. The Commission, in response to a question from the Court, explained that it was not necessary to take into account that amount in order to ensure the deterrent effect of the fine imposed on Niche, particularly in view of Niche’s modest size and situation. Even assuming that the failure to take that amount into account in calculating the amount of Niche’s fine is merely the result of an oversight on the part of the Commission, that omission remains, in any event, immaterial to the finding, reasonably made in that decision, that the Biogaran agreement supports the restriction of competition resulting from the settlement agreement.

184 It follows from all the foregoing that the present plea must be rejected.

B. The plea alleging errors of law in that the contested decision fails to establish that Biogaran participated in any infringement of the competition rules

1. Arguments of the parties

(a) The unlawful nature of the Biogaran agreement

185 The applicant argues that the Biogaran agreement itself does not, by the Commission’s own admission, constitute an infringement. The terms of that agreement were not the subject of any criticism in the contested decision, which, moreover, only devotes six pages to that agreement. Accordingly, Biogaran was penalised for an agreement which does not involve any restriction of competition, with the result that the mere fact that Biogaran was a signatory to that agreement could not be penalised on the basis of Article 101 TFEU. Biogaran’s liability is strictly linked to the allegedly unlawful nature of the settlement, of which it was not a signatory, even though the contested decision acknowledges, in recital 1351, that ‘the settlement agreement and the Biogaran agreement are separate legal acts’.

186 Relying on the Opinion of Advocate General Wahl in AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:350), the applicant claims that, in order to be a party to a cartel the object or effect of which is to restrict competition, the undertaking in question must represent a competitive pressure for the other cartel members, which is not the case here, since Biogaran was not a competitor of Niche at the material time.

187 The Commission takes the view that the Biogaran agreement cannot be examined independently of the settlement from which it is inseparable. The Commission has already shown, in recitals 1351 and 3011 of the contested decision, that that agreement served to support the transfer to Niche of an additional amount of GBP 2.5 million in consideration for the commitments made by Niche in the settlement between Servier and Niche.

188 That payment contained in the Biogaran agreement constitutes direct participation by Biogaran in the cartel, even though the terms of that agreement are not at issue. The Commission adds that that amount constitutes an additional inducement offered to Niche in order to convince it to adhere to the settlement. The fact that that amount was paid in the context of a licensing agreement does not deprive it of its nature as a supplement to the payment of GBP 11.8 million made in the context of the settlement. Similarly, the fact that the Biogaran agreement relates to compounds distinct from those forming the subject matter of the settlement and that it may have