Appeal brought on 22 February 2019 by Unichem Laboratories Ltd against the judgment of the General Court (Ninth Chamber) delivered on 12 December 2018 in Case T-705/14: Unichem Laboratories v Commission

(Case C-166/19 P)

Language of the case: English


Appellant: Unichem Laboratories 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 Unichem; and

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

Pleas in law and main arguments

Unichem submits the General Court erred in law:

First, the General Court erred in law by concluding the Commission has jurisdiction to address a decision under Art. 101(1) TFEU to Unichem since:

The General Court misapplied the legal test for determining a single economic entity; and

The General Court wrongly held that Unichem was directly liable as co-signatory of the settlement agreement.

Second, the General Court erred in law by not applying the objective necessity test in BAT.

Third, 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.

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

Fifth, the General Court erred in law by concluding Niche and Unichem were a potential competitor to Servier.

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

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

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