Case C-601/16 P: Appeal brought on 24 November 2016 by Arrow Group ApS, Arrow Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-467/13: Arrow Group ApS, Arrow Generics Ltd v European Commission
Date: 2016-11-24
Institutions: Court of Justice
Subjects: European patent, cartel, competition policy, control of restrictive practices, generic drug, market access, patent law, restriction on competition, sanction (EU)








C_2017030EN.01002901.xml










30.1.2017   


EN


Official Journal of the European Union


C 30/29





Appeal brought on 24 November 2016 by Arrow Group ApS, Arrow Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 8 September 2016 in Case T-467/13: Arrow Group ApS, Arrow Generics Ltd v European Commission
(Case C-601/16 P)
(2017/C 030/34)
Language of the case: English

Parties


Appellants: Arrow Group ApS, Arrow Generics Ltd (represented by: C. Firth, S. Kon, C. Humpe, Solicitors)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:






—


set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 and/or annul Articles 1, 2 and 3 of Commission decision C(2013) 3803 final of 19 June 2013 in Case AT.39226-Lundbeck insofar as they pertain to Arrow; or










—


in the further alternative, set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 and refer the case back to the General Court; or










—


in the final alternative, set aside the Judgment of the General Court of 8 September 2016 in Case T-467/13 insofar as the Judgment upheld the fine imposed on Arrow pursuant to Article 2 of Commission decision C(2013) 3803 final in respect of the UK and Danish Agreements or reduce the amount of such fine; and










—


order the Commission to pay Arrow's costs.





Pleas in law and main arguments

First Ground: The General Court misapplied the relevant test for potential competition:






1.


First plea: the General Court shifted the burden of proof to Arrow and relieved the Commission of its obligation to establish the existence of potential competition.










2.


Second plea: the General Court erred by deriving the existence of potential competition from a series of hypotheses contrary to the principle that potential competition necessitates the existence of a real and concrete possibility of entry.










3.


Third plea: the General Court attached undue weight to Lundbeck's intention and wrongly assessed the evidential importance of facts occurring after the Agreements were signed.










4.


Fourth plea: The General Court failed to consider the relevance and impact of the Paroxetine Judgment of the English Court.










5.


Fifth plea: The General Court wrongly derived the existence of potential competition from the fact that Arrow had taken steps to prepare for market entry.










6.


Sixth plea: the General Court erred by applying a presumption of provisional invalidity and non-infringement to Lundbeck's patents.




Second Ground: The General Court has erred in finding that the patent settlement agreements had the object of restricting competition:






1.


First plea: the General Court has disregarded the fact that an agreement which is ‘simply capable’ of restricting competition is not an object infringement.










2.


Second plea: the General Court has misdirected itself in categorising the Agreements as being in essence market exclusion agreements.










3.


Third plea: the General Court has wrongly concluded that the Commission could establish the anticompetitive object of the Agreements without having to consider the situation that would have prevailed in the absence of the agreements.




Third Ground: The General Court erred in accepting the Commission's conclusions that Arrow acted intentionally or negligently in committing the alleged infringement and no fine should have been imposed.