Action brought on 30 August 2013 – Generics (UK) v Commission

(Case T-469/13)

Language of the case: English

Parties

Applicant: Generics (UK) Ltd (Potters Bar, United Kingdom) (represented by: I. Vandenborre and T. Goetz, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

Annul in whole or in part the Commission’s Decision C(2013) 3803 final of 19 June 2013, in case COMP/39226, finding that the applicant committed a single and continuous infringement of Article 101 TFEU from 24 January 2002 to 1 November 2003 by entering into two patent settlement agreements;

Alternatively, annul or reduce substantially the level of the fine imposed; and

Order the Commission to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging that the Commission errs in its assessment of the content, the purpose and the context of the Settlement Agreements:

The Decision’s findings are based on a wrong and speculative interpretation of the Settlement Agreements and on highly selective excerpting of the contemporaneous records. The Decision disregards or misconstrues evidence that clearly demonstrates that the Settlement Agreements remained within the scope of Lundbeck’s validly issued patents, and were concluded against the background of a genuine patent dispute.

Second plea in law, alleging that the Commission errs in law in ignoring the existence of validly issued patents and equating the Settlement Agreements to market sharing agreements:

The Decision’s finding that the Settlement Agreements constitute a restriction of competition by object ignores the existence of validly issued patents which the applicant had to take into account. The Decision errs in finding that patents have exclusionary powers only once they have been confirmed in litigation, that patent litigation is essential to the competitive process and that a duty existed for the applicant to litigate or exhaust all other options before concluding the Settlement Agreements.

Third plea in law, alleging that the Commission errs both in law and in its assessment of the facts in concluding that the payments provided for under the Settlement Agreements were “decisive” for the finding of a by object infringement:

There is no legal or factual basis for the Commission’s finding that the mere inclusion in the Settlement Agreements of a payment to the applicant was sufficient to establish the existence of a by object infringement. The Commission has failed to meet its burden of proof.

Fourth plea in law, alleging that the Commission commits an error in law and in its assessment of the facts in ignoring the relevant factual and legal context in which the Settlement Agreements were concluded:

–    The Commission has ignored factors critical to the assessment of the Settlement Agreements including relevant law on patent litigation, contemporaneous records discussing the patent litigation and damages risk for the applicant, and the Commission’s own findings in relation to the average duration of patent litigation. The Commission has failed to meet its burden of proof.

Fifth plea in law, alleging that the Commission errs in finding that the Settlement Agreements do not qualify for an exemption under Article 101(3) TFEU:

–    The Commission fails to undertake an analysis of the relevant, reliable and credible arguments and evidence submitted by the applicant which demonstrate that the Settlement Agreements permitted the applicant to launch almost 18 years prior to the expiry of Lundbeck’s key patent.

Sixth plea in law, alleging that the Decision violates the principle of proportionality:

–    The Decision violates the principle of proportionality by condemning the Settlement Agreements which constituted the least burdensome means of pursuing legitimate goals.

Seventh plea in law, alleging that the Decision is inadequately reasoned contrary to Article 296 TFEU:

–    The Decision is inadequately reasoned contrary to Article 296 TFEU in that it assumes the existence of that which was incumbent upon the Commission to prove.

Eighth plea in law, alleging that the Decision infringes an essential procedural requirement:

–    The Decision infringes the applicant’s right of defence by introducing new allegations and evidence without providing the applicant with an opportunity to be heard.

Ninth plea in law, alleging that the Commission has failed to demonstrate that the applicant committed the alleged infringement intentionally or negligently:

–    The facts at issue raise novel and complex issues for which there was no precedent at the time when the Settlement Agreements were concluded. There is no basis for a finding that what the Commission alleges is an infringement, was committed in negligent or intentional violation of the law.