Action brought on 21 September 2014 — Servier SAS and Others v Commission
(Case T-691/14)
Language of the case: French
Parties
Applicants: Servier SAS (Suresnes, France); Servier Laboratories Ltd (Wexham, United Kingdom); and Les Laboratoires Servier SAS (Suresnes) (represented by: I. S. Forrester, QC, J. Killick, Barrister, O. de Juvigny, avocat, and M.-I. F. Utges Manley, Solicitor)
Defendants: European Commission
Form of order sought
The applicants claim that the Court should:
annul in whole or in part Articles 1, 2, 3, 4, 5, 6, 7 and 8 of Commission Decision No C (2014) 4955 final of 9 July 2014 relating to a proceeding under Article 101 and Article 102 of the Treaty on the Functioning of the European Union [AT.39.612 — Périndopril (Servier)] insofar as they relate to Servier S.A.S, Les Laboratoires Servier and Servier Laboratories Limited;
in the alternative, exercise its unlimited jurisdiction in order to reduce the amount of the fines imposed on Servier S.A.S, Les Laboratoires Servier and Servier Laboratories Limited under Article 7 of that decision, by a very substantial amount;
grant Servier S.A.S, Les Laboratoires Servier and Servier Laboratories Limited the benefit of any annulment, in whole or in part, of the Decision in the appeal brought by Biogaran;
make any Order that the Court deems appropriate;
order the European Commission to pay all the costs.
Pleas in law and main arguments
In support of the action, the applicants rely on seventeen pleas in law.
First plea in law, alleging a procedural defect, insofar as the inquiry was vitiated by a hypothesis-confirmation bias. The applicants claim that, after stating publicly, at the end of the sector inquiry, that the sector concerned was ‘rotten’, the Commission sought, at all costs, to bear out that statement by a decision, even if that meant distorting and rewriting the facts of the present case.
Second plea in law, alleging infringement of essential procedural requirements, insofar as the Advisory Committee on Restrictive Practices and Dominant Positions — whose opinion is mandatory before the taking of any decision, in accordance with Article 14 of Council Regulation (EC) No 1/2003 1 — was not convened in time, and insofar as only the representatives of three Member States attended the meeting of that committee.
Third plea in law, alleging breach of the right to an effective remedy, the Commission having addressed to the applicants a decision of 919 pages, without taking into account the constraints of time and form that must be respected when lodging an appeal.
Fourth to twelfth pleas in law alleging errors of assessment and of law, the Commission having incorrectly characterised the settlement agreements between the applicants, and Niche, Matrix, Teva, Krka and Lupin, as amicable in breach of Article 101 TFEU.
The applicants claim in particular that, in order to classify the restriction agreements ‘by object’, the Commission relied on three factors, so broadly defined that they are ineffective, to distinguish legitimate amicable settlements from anti-competitive agreements (existence of a transfer of value inducing the generics manufacturer to compromise effectively any commercial benefit whatsoever, restriction of competition amounting to restriction of the commercial freedom of the generics manufacturer and potential competition between the parties amounting to the absence of obstacles rendering the future entry of the generics manufacturer onto the market impossible).
Furthermore, by distorting the legitimate objective and the context of the agreements (inter alia, by disregarding, despite reality, the existence of serious technical and regulatory difficulties preventing generics manufacturers from entering the market as well as the existence of parallel legal proceedings), the Commission vitiated, with several errors of assessment, its conclusion that the purpose of the agreements was to restrict competition.
Finally, the analysis of the ‘effects’ of the agreements is vitiated by a contradiction of reasoning and by the fact that the Commission did not use a realistic counterfactual scenario. The contested decision is based entirely on an ex-ante analysis of hypothetical effects, virtually reproducing its analysis per object in breach of case-law, so that, it concluded that there were anti-competitive effects despite the absence of any real effect on the market.
Thirteenth plea in law alleging, in the alternative, an error of assessment and an error of law, insofar as the Commission artificially characterised the agreements between the applicants, and Niche, Matrix, Teva, Krka and Lupin, as containing five separate breaches.
Fourteenth plea in law alleging a manifest error of assessment and an error of law, insofar as the Commission wrongly and artificially restricted the relevant market for finished products to the single molecule of perindopril, by excluding the fifteen other enzyme conversion inhibitors available on the market.
Fifteenth plea in law alleging a manifest error of assessment, insofar as the Commission incorrectly concluded that the applicants held a dominant position on the relevant market. The applicants claim that the Commission’s conclusion arises from the artificial restriction of the relevant market to Perindopril only.
Sixteenth plea in law alleging a manifest error of assessment and an error of law, insofar as the Commission incorrectly classified the applicants as undertakings in a dominant position on the ‘technology’ market.
The applicants claim that the Commission defined the ‘technology’ market in an insufficiently clear and, in any event, incorrect manner, that only reproduced the market of finished product, and incorrectly found that Servier held a dominant position on that hypothetical market.
Seventeenth plea in law alleging an error of assessment and an error of law, insofar as the Commission incorrectly took the view that the applicants abused their dominant position by entering into amicable settlements (in doing so, the Commission simultaneously applied Articles 101 and 102 TFEU to the same facts, contrary to case-law), and by acquiring embryonic technology from a European SME.
________________________1 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ 2003 L 1, p. 1).