GlaxoSmithKline Services Unlimited v Commission of the European Communities (C-501/06 P) and Commission of the European Communities v GlaxoSmithKline Services Unlimited (C-513/06 P) and European Association of Euro Pharmaceutical Companies (EAEPC) v Commission of the European Communities (C-515/06 P) and Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) v Commission of the European Communities (C-519/06 P).
Date: 2009-10-06
23. According to the Court’s settled case-law, for an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it (orders in Case C-111/99 P Lech‑Stahlwerke  v Commission  [2001] ECR I-727, paragraph 18, and Case C‑503/07 P Saint-Gobain Glass Deutschland  v Commission  [2008] ECRI‑2217, paragraph 48 and case-law cited).
55. First of all, it must be borne in mind that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. According to settled case-law since the judgment in Case 56/65 LTM  [1966] ECR 235, the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise purpose of the agreement, in the economic context in which it is to be applied. Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the consequences of the agreement should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. It is also apparent from the case-law that it is not necessary to examine the effects of an agreement once its anti-competitive object has been established (see, to that effect, Case C‑8/08 T‑Mobile Netherlands and Others  [2009] ECR I‑0000, paragraphs 28 and 30).
58. According to settled case-law, in order to assess the anti-competitive nature of an agreement, regard must be had inter alia to the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others  v Commission  [1983] ECR 3369, paragraph 25, and Case C-209/07 Beef Industry Development Society and Barry Brothers  [2008] ECR I-0000, paragraphs 16 and 21). In addition, although the parties’ intention is not a necessary factor in determining whether an agreement is restrictive, there is nothing prohibiting the Commission or the Community judicature from taking that aspect into account (see, to that effect, IAZ International Belgium and Others  v Commission , cited above, paragraphs 23 to 25).
59. With respect to parallel trade, the Court has already held that, in principle, agreements aimed at prohibiting or limiting parallel trade have as their object the prevention of competition (see, to that effect, Case 19/77 Miller International Schallplaten  v Commission  [1978] ECR 131, paragraphs 7 and 18, and Joined Cases 32/78, 36/78 to 82/78 BMW Belgium and Others  v Commission  [1979] ECR 2435, paragraphs 20 to 28 and 31).
61. The Court has, moreover, held in that regard, in relation to the application of Article 81 EC and in a case involving the pharmaceuticals sector, that an agreement between producer and distributor which might tend to restore the national divisions in trade between Member States might be such as to frustrate the Treaty’s objective of achieving the integration of national markets through the establishment of a single market. Thus on a number of occasions the Court has held agreements aimed at partitioning national markets according to national borders or making the interpenetration of national markets more difficult, in particular those aimed at preventing or restricting parallel exports, to be agreements whose object is to restrict competition within the meaning of that article of the Treaty (Joined Cases C‑468/06 to C-478/06 Sot. Lélos kai Sia and Others  [2008] ECR I-7139, paragraph 65 and case-law cited).
63. First of all, there is nothing in that provision to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly, it must be borne in mind that the Court has held that, like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price (see, by analogy, T-Mobile Netherlands and Others , cited above, paragraphs 38 and 39).
65. However, where the grounds of a judgment of the Court of First Instance are contrary to Community law, that judgment need not be set aside if the operative part of the judgment appears to be well founded on other legal grounds (see, to that effect, Case C‑30/91 P Lestelle  v Commission  [1992] ECR I‑3755, paragraph 28, and Case C‑294/95 P Ojha  v Commission  [1996] ECR I‑5863, paragraph 52).
82. The Court notes, first, that in paragraphs 233 to 236 of the judgment under appeal, the Court of First Instance referred to the case-law, principles and criteria governing the burden of proof and standard of proof required in relation to requests for exemptions under Article 81(3) EC. It correctly stated that a person who relies on that provision must demonstrate, by means of convincing arguments and evidence, that the conditions for obtaining an exemption are satisfied (see, to that effect, Case 42/84 Remia and Others  v Commission  [1985] ECR 2545, paragraph 45).
83. The burden of proof thus falls on the undertaking requesting the exemption under Article 81(3) EC. However, the facts relied on by that undertaking may be such as to oblige the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, Aalborg Portland and Others  v Commission , cited above, paragraph 279).
85. This is fully in keeping with the principle that review by the Community judicature of complex economic assessments made by the Commission must necessarily be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers ( Aalborg Portland and Others  v Commission , cited above, paragraph 279).
92. The Court notes that in paragraph 247 of the judgment under appeal the Court of First Instance rightly observed that, in order to be capable of being exempted under Article 81(3) EC, an agreement must contribute to improving the production or distribution of goods or to promoting technical or economic progress. That contribution is not identified with all the advantages which the undertakings participating in the agreement derive from it as regards their activities, but with appreciable objective advantages of such a kind as to compensate for the resulting disadvantages for competition (see, to that effect, Consten and Grundig  v Commission , cited above, p. 348 and 349).
93. As the Advocate General observed in point 193 of her Opinion, an exemption granted for a specified period may require a prospective analysis regarding the occurrence of the advantages associated with the agreement, and it is therefore sufficient for the Commission, on the basis of the arguments and evidence in its possession, to arrive at the conviction that the occurrence of the appreciable objective advantage is sufficiently likely in order to presume that the agreement entails such an advantage.
94. The Court of First Instance therefore committed no error of law in paragraph 249 of the judgment under appeal in holding that the Commission’s approach may entail ascertaining whether, in the light of the factual arguments and the evidence provided, it seems more likely either that the agreement in question must make it possible to obtain appreciable advantages or that it will not.
95. Moreover, the Court of First Instance made no error of law in paragraph 252 of the judgment under appeal in observing that it was necessary to determine whether the Commission was entitled to conclude that GSK’s factual arguments and evidence, examination of which entailed a prospective analysis, did not demonstrate with a sufficient degree of probability that Clause 4 of the agreement would, by encouraging innovation, make it possible to obtain an appreciable objective advantage of such a kind as to offset the disadvantage which it entailed for competition.
102. The Court notes that the examination of an agreement for the purposes of determining whether it contributes to the improvement of the production or distribution of goods or to the promotion of technical or economic progress, and whether that agreement generates appreciable objective advantages, must be undertaken in the light of the factual arguments and evidence provided in connection with the request for exemption under Article 81(3) EC.
147. In such a review, the Court of First Instance may ascertain whether the Commission provided a sufficient statement of reasons for the contested decision (see, to that effect, Remia and Others  v Commission , cited above, paragraph 40, and Case C‑7/95 P Deere  v Commission  [1998] ECR I‑3111, paragraphs 28 and 29).
155. In that regard, it is not apparent that the obligation to state reasons which the Court of First Instance has under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice (see Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I-0000, paragraph 42) has been infringed in the present case.
163. First of all, it is not for the Court of First Instance to substitute its economic assessment for that of the author of the decision whose legality it is requested to review. As stated in paragraph 85 of this judgment, the review by the Community judicature of the complex economic assessments made by the Commission is limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers.