Case C-515/06 P: Appeal brought on 19 December 2006 by European Association of Euro Pharmaceutical Companies (EAEPC) against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited v Commission of the European Communities
Date: 2007-03-10
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), appeal, fixing of prices, pharmaceutical product, selling price

C 56/18

EN

Official Journal of the European Union

10.3.2007

Appeal brought on 19 December 2006 by European Asso-
ciation of Euro Pharmaceutical Companies (EAEPC) against
Instance (Fourth
the Court of First
the judgment of
Chamber,
on
Composition)
27 September 2006 in Case T-168/01: GlaxoSmithKline
the European
Services Unlimited v Commission of

Extended

delivered

Communities

(Case C-515/06 P)

(2007/C 56/31)

españoles

Appeal brought on 20 December 2006 by Asociación de
exportadores
farmacéuticos
de
(Aseprofar) against the judgment of the Court of First
Instance (Fourth Chamber, Extended Composition) deliv-
ered on 27 September 2006 in Case T-168/01: GlaxoS-
mithKline Services Unlimited, formerly Glaxo Wellcome
plc v Commission of the Eurooean communities

productos

(Case C-519/06 P)

(2007/C 56/32)

Language of the case: English

Language of the case: English

Parties

Parties

Appellant: European Association of Euro Pharmaceutical Compa-
nies (EAEPC)
(represented by: M. Hartmann-Rüppel and W.
Rehmann, Rechtsanwälte)

Appellant: Asociación de exportadores españoles de productos
farmacéuticos (Aseprofar)
(represented by: M. Araujo Boyd,
abogado, J. L. Buendía Sierra, membre du service juridique)

Other parties to the proceedings: Commission of the European
Communities, Bundesverband der Arzneimittel-Importeure eV,
Spain Pharma, SA, Asociación de exportadores españoles de
productos farmacéuticos (Aseprofar), GlaxoSmithKline Services
Unlimited, anciennement Glaxo Wellcome plc

Other parties to the proceedings: Commission of the European
Communities, European Association of Euro Pharmaceutical
Companies (EAEPC), Bundesverband der Arzneimittel-Impor-
teure eV, Spain Pharma, SA, GlaxoSmithKline Services Unlim-
ited, anciennement Glaxo Wellcome plc

Form of order sought

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of
27 September 2006, case no. T-168/01, to the extent the
Court of First Instance annulled the Commission decision
2001/70/E (1) of 8 May 2001.

— to award the costs of the proceedings before the Court of

Justice and the Court of First Instance.

Pleas in law and main arguments

The Appellant claims the following infringements of Com-
munity law by the appealed judgment:

(a) Misapplication of Art. 81(3) EC-the Court of First Instance
disregarded the role and function of Art. 81(3) when alle-
ging the assessment undertaken by the Commission was
insufficient.

(b) Misapplication of Article 81(3) EC by misjudging the

burden of rendering evidence and proof

(c) Misapplication of Article 81(3) EC in consequence of misin-
terpretation or non-consideration of evidence on file, which
proves that the applicant (GSK) did not plead on the require-
ments of Article 81(3) EC sufficiently and by offering
sustainable evidence.

(1) OJ L 302, p. 1.

Form of order sought

The applicant claims that the Court should:

— set aside point 1 of the judgment of the Court of First

Instance of 27 September 2006 in case T-168/01;

— give final judgment in case T-168/01 by entirely rejecting
claim and confirming Commission Decision

GLAXO's
2001/791/EC; and

— set aside points 3, 4, and 5 of the said judgment relating to
costs, and to order GLAXO to bear entirely the costs of case
T-168/01 and of the present appeal.

Pleas in law and main arguments

The applicant submits that the contested judgment should be
annulled on the following grounds:

Erroneous application of Article 81(1) EC

The applicant maintains that the Court of First Instance (herein-
after ‘CFI’) wrongly rejected the Commission's finding that
GLAXO'S dual pricing had as its object the prevention, restric-
tion or distortion of competition and argues that dual pricing
and export bans are anticompetitive by their very nature. The
the CFI has wrongly applied
applicant also submits
article 81(1) EC in the context of a regulated sector, that the
contested judgment incorrectly analyses the legal and economic
context of the case and that the CFI is manifestly wrong in law
in its assessment of the goal of the competition rules contained
in the EC Treaty and in its analysis of consumer welfare arising
from parallel trade.

that