Action brought on 30 August 2013 – H. Lundbeck and Lundbeck v Commission

(Case T-472/13)

Language of the case: English

Parties

Applicants: H. Lundbeck A/S (Valby, Denmark); and Lundbeck Ltd (Milton Keynes, United Kingdom) (represented by: R. Subiotto, QC, and T. Kuhn, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

Annul the Commission’s decision C(2013) 3808 final of 19 June 2013, served to the applicants on 21 June 2013, in case COMP/39226 – Lundbeck;

Alternatively, annul the fines imposed on the applicants pursuant to that decision;

In the further alternative, substantially reduce the fines imposed on the applicants pursuant to that decision;

In any event, order the Commission to pay the applicants’ legal and other costs and expenses in relation to this matter; and

Take any other measures that this Court considers appropriate.

Pleas in law and main arguments

In support of the action, the applicant relies on ten pleas in law.

First plea in law, alleging that the Defendant wrongly concluded that Lundbeck and the other undertakings that were parties to the agreements were actual or potential competitors under Article 101(1) TFEU.

Second plea in law, alleging that the Defendant wrongly assessed the relevance under Article 101(1) TFEU of value transfers in the context of patent settlement agreements.

Third plea in law, alleging that the Defendant’s conclusion that the patent settlement agreements restricted competition by object under Article 101(1) rests on a wrongful application of the established principles on restrictions by object.

Fourth plea in law, alleging that the Defendant’s decision errs and lacks reasoning in dismissing the “Scope-of-the-Patent Test” as the relevant standard for the competition law assessment of patent settlement agreements under article 101(1) TFEU.

Fifth plea in law, alleging that the Defendant’s decision mischaracterizes Lundbeck’s actions and fails to explain how these unilateral actions are relevant for a finding of infringement of Article 101(1) TFEU.

Sixth plea in law, alleging that the Defendant failed to consider all the circumstances surrounding the agreements and erroneously concluded that their intended scope went beyond the scope of Lundbeck’s patent rights.

Seventh plea in law, alleging that the Defendant failed to carry out a proper examination of the efficiencies arising from the agreements under article 101(3) TFEU.

Eighth plea in law, alleging that the Defendant’s decision infringes Lundbeck’s rights of defense, because the Defendant has changed the constituent elements of the alleged infringement between the issuance of the statement of objections and the decision, without affording Lundbeck an opportunity of being heard.

Ninth plea in law, alleging, in the alternative, that the Defendant wrongly imposed a fine on Lundbeck despite the novelty of the factual and legal issues raised in this case, thereby also violating the principle of legal certainty.

Tenth plea in law, alleging, in the further alternative, that the Defendant wrongly calculated the fines imposed on Lundbeck.