Language of document :

Appeal brought on 22 February 2019 by Niche Generics Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-701/14: Niche Generics v Commission

(Case C-164/19 P)

Language of the case: English


Appellant: Niche Generics Ltd (represented by: F. Carlin, Barrister, M. Healy, Solicitor, B. Hoorelbeke, advocaat, S. Mobley, Solicitor, H. Sheraton, Solicitor, A. Robertson QC)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

Annul the Contested Judgment in its entirety;

Annul the Contested Decision in its entirety in so far its relates to Niche; and

Order the Commission to pay its own costs and Niche's costs in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

Niche submits the General Court erred in law:

First, the General Court erred in law by not applying the objective necessity

test in BAT.

Second, in the event that settlement agreements fall within Art. 101 TFEU, the General Court erred in law by mischaracterising Niche's settlement agreement as a 'by object' violation.

Third, the General Court infringed Art. 36 of the Statute of the Court of Justice duty to state reasons when it rejected Niche's interpretation of the settlement agreement without addressing its legal arguments.

Fourth, the General Court erred in law by concluding Niche was a potential competitor to Servier.

Fifth, the General Court infringed the fundamental principle of equal treatment by treating Niche differently to similarly situated generics and erroneously characterising Niche's settlement agreement as an Art. 101(1) TFEU 'by object' violation.

Sixth, the General Court erred in law by not recognising that the settlement agreement satisfies the exemption criteria under Art.101(3) TFEU.

Seventh, the General Court erred in law by misapplying the legal test for determining a breach of Niche's rights of defence and/or the principle of sound administration.

Eighth, the General Court infringed the general EU law principle of proportionality by confirming a level of fine that was disproportionate to Niche's financial means.