Case T-321/05: Action brought on 25 August 2005 — AstraZeneca/Commission
Date: 2005-10-29
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), intellectual property, market approval, patent, pharmaceutical industry, restriction on competition

C 271/24

EN

Official Journal of the European Union

29.10.2005

Action brought on 25 August 2005 — AstraZeneca/
Commission

(Case T-321/05)

(2005/C 271/47)

Language of the case: English

Parties

Applicant(s): AstraZeneca AB (Sodertalje, Sweden) and AstraZe-
[represented by: M.
neca plc (London, United Kingdom)
Brealey, QC, M. Hoskins, barrister, F. Murphy, solicitor]

Defendant(s): Commission of the European Communities

Form of order sought

— Quash the European Commission's Decision of 15 July
2005 relating to a proceeding under Article 82 of the EC
Treaty and Article 54 of the EEA Agreement (Case COMP/
A.37.507/F3 — AstraZeneca);

— order the Commission to pay the applicants' costs of these

legal proceedings.

The applicants further challenge the Commission's findings of
infringements both on legal and factual grounds. Regarding the
alleged misrepresentations with respect to patents, the appli-
cants consider that such misleading representations made in
the course of applications for
intellectual property rights
cannot in law amount to an abuse unless and until the dishon-
estly obtained rights are enforced or are capable of being
enforced. They also consider that Article 82 EC, properly inter-
preted, did not impose on them an obligation to maintain a
marketing authorisation for a product they no longer marketed,
merely because it would make it easier for generics and parallel
traders to compete with it.

The applicants also challenge the Commission's findings of
facts on both infringements. They submit that the Commission
failed to adduce evidence proving to the correct legal standard
intellectual property rights and that,
the alleged abuse of
furthermore,
there was no strategy for selectively changing
from ‘Losec’ capsules to tablets or selectively withdrawing
marketing authorisations for the capsules.

Action brought on 25 August 2005 — Republic of Estonia
v Commission of the European Communities

(Case T-324/05)

(2005/C 271/48)

Pleas in law and main arguments

Language of the case: Estonian

By the contested Decision the Commission fined both appli-
cants EUR 46 000 000 and fined the first applicant a further
EUR 14 000 000 for infringements of Article 82 EC and
Article 54 of the Agreement on the European Economic Area.
The Commission found that, beginning in 1993, the applicants
engaged in a pattern of deliberate misrepresentation to patent
attorneys, national courts and patent offices in order to obtain
supplementary protection certificates to which they knew they
were not entitled to for their patented product ‘omeprazole’,
the active substance in the applicants'
‘Losec’ medicinal
product. It also found that in 1998/1999 the applicants oper-
ated a strategy of selectively withdrawing their ‘Losec’ capsules,
replacing them with ‘Losec’ tablets, and requesting the deregis-
tration of
the marketing authorisation for the capsules in
Denmark, Norway and Sweden. The Decision considers that
both infringements were committed with the intention of
unfairly restricting competition from generics and parallel
imports.

The applicants challenge the Commission's Decision on several
levels. They allege first of all that the Commission mistakenly
defined the relevant market as being only that of proton pump
inhibitors, used for the treatment of gastrointestinal acid related
diseases, and excluded histamine receptor antagonists from the
relevant market. This finding also influences the Commission's
finding on dominance, since, according to the applicants, the
contested Decision does not consider whether the applicants
would still be in a dominant position if histamine receptor
antagonists were included in the relevant market.

Parties

Applicant(s): Republic of Estonia (represented by: Lembit Uibo,
Agent)

Defendant(s): Commission of the European Communities

Form of order sought

The applicant(s) claim(s) that the Court should Annul Commis-
sion Regulation (EC) No 832/2005 (OJ L 138 of 1.6.2005, p.
3)

Pleas in law and main arguments

The object of the application is the annulment of Commission
Regulation (EC) No 832/2005 of 31 May 2005 on the
determination of surplus quantities of sugar,
isoglucose and
fructose for
the Czech Republic, Estonia, Cyprus, Latvia,
Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia. (1)