AstraZeneca AB and AstraZeneca plc v European Commission.
Date: 2012-12-06
51. Lastly, in so far as the appellants call into question the findings made by the General Court on the basis of the information in the file, namely, inter alia, that the PPIs and H2 blockers had differentiated therapeutic uses during the reference period and that the gradual nature of the increase in sales of PPIs was not caused by a significant competitive constraint exercised by H2 blockers, it is sufficient to point out that the Court of Justice has consistently held that it has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, which is not claimed in the present case, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see judgments in Case C-535/06 P Moser Baer India  v Council  [2009] ECR I-7051, paragraph 32, and in Joined Cases C-191/09 P and C-200/09 P Council and Commission  v Interpipe Niko Tube and Interpipe NTRP  [2012] ECR, paragraph 65).
74. As a preliminary point, it must be noted that it is settled case-law that the concept of ‘abuse’ is an objective concept referring to the conduct of a dominant undertaking which is such as to influence the structure of a market where the degree of competition is already weakened precisely because of the presence of the undertaking concerned, and which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (judgments in Case 85/76 Hoffman-La Roche  v Commission  [1979] ECR 461, paragraph 91; Case C-62/86 AKZO  v Commission  [1991] ECR I-3359, paragraph 69; Case C-52/07 Kanal 5 and TV 4  [2008] ECR I-9275, paragraph 25; and Case C-52/09 TeliaSonera Sverige  [2011] ECR I-527, paragraph 27).
75. It follows that Article 82 EC prohibits a dominant undertaking from eliminating a competitor and thereby strengthening its position by using methods other than those which come within the scope of competition on the merits ( AKZO  v Commission , paragraph 70, and Case C-202/07 P France Télécom  v Commission  [2009] ECR I-2369, paragraph 106).
112. Lastly, as regards the circumstances which, according to the appellants, must be present in order to be able to find that the misleading representations were such as to restrict competition, it is sufficient to note that in actual fact they amount to a requirement that current and certain anti-competitive effects be shown. However, it follows from the Court’s case-law that, although the practice of an undertaking in a dominant position cannot be characterised as abusive in the absence of any anti-competitive effect on the market, such an effect does not necessarily have to be concrete, and it is sufficient to demonstrate that there is a potential anti-competitive effect (see, to that effect, TeliaSonera Sverige , paragraph 64).
134. It is important to point out, in this context, that an undertaking which holds a dominant position has a special responsibility in that latter regard (see Case C-202/07 P France Télécom  v Commission  [2009] ECR I-2369, paragraph 105) and that, as the General Court held at paragraphs 672 and 817 of the judgment under appeal, it cannot therefore use regulatory procedures in such a way as to prevent or make more difficult the entry of competitors on the market, in the absence of grounds relating to the defence of the legitimate interests of an undertaking engaged in competition on the merits or in the absence of objective justification.
147. Contrary to the Commission’s submission, this ground of appeal is not inadmissible. It is sufficient to state in this connection that, provided that the appellant challenges the interpretation or application of Community law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see Case C-425/07 P AEPI  v Commission  [2009] ECR I-3205, paragraph 24, and Case C-54/09 P Greece  v Commission  [2010] ECR I-7537, paragraph 43).
162. As a preliminary point, it should be remembered that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of European Union law (Case C-219/95 P Ferriere Nord  v Commission  [1997] ECR I-4411, paragraph 31, and Case C 185/95 P Baustahlgewebe  v Commission  [1998] ECR I-8417, paragraph 129).
175. In order to assess whether this ground of appeal is well founded, it should be noted that it is settled case-law that a dominant position under Article 82 EC concerns a position of economic strength held by an undertaking which enables it to prevent effective competition from being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers. In general the existence of a dominant position derives from a combination of various factors which, taken separately, are not necessarily decisive (Case 27/76 United Brands and United Brands Continentaal  v Commission  [1978] ECR 207, paragraphs 65 and 66, and Hoffmann-La Roche  v Commission , paragraphs 38 and 39).
176. The Court has already clarified that, although the importance of the market shares may vary from one market to another, the possession, over a long period, of a very large market share constitutes in itself, save in exceptional circumstances, proof of the existence of a dominant position ( Hoffman-La Roche  v Commission , paragraph 41) and that market shares of more than 50% constitute very large market shares (Case AKZO  v Commission , paragraph 60).
188. Lastly, contrary to what the EFPIA submits, the taking into account of intellectual property rights for the purposes of finding that an undertaking has a dominant position does not mean that companies introducing innovative products on the market should refrain from acquiring a comprehensive portfolio of intellectual property rights or from enforcing those rights. It is sufficient to point out in that regard that a dominant position is not prohibited, only its abuse, and a finding that an undertaking has such a position is not in itself a criticism of the undertaking concerned (see, to that effect, Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others  v Commission  [2000] ECR I-1365, paragraph 37, and TeliaSonera Sverige , paragraph 24).