Action brought on 28 August 2013 – Arrow Group and Arrow Generics v Commission

(Case T-467/13)

Language of the case: English

Parties

Applicants: Arrow Group ApS (Roskilde, Denmark); and Arrow Generics Ltd (London, United Kingdom) (represented by: S. Kon, C. Firth, and C. Humpe, Solicitors)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

Annul Articles 1, 2 and 3 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 – Lundbeck insofar as they pertain to Arrow; or

In the alternative annul Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 – Lundbeck insofar as it imposes a fine on Arrow in respect of the UK and Danish Agreements; or

In the further alternative annul Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 – Lundbeck insofar as it imposes a fine on Arrow in respect of the Danish Agreement and reduce the fine accordingly; or

In the final alternative reduce the fine imposed pursuant to Article 2 of Commission decision C(2013) 3803 final of 19 June 2013 in Case COMP/39226 – Lundbeck; and

Order the Commission to pay Arrow’s costs.

Pleas in law and main arguments

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

First plea in law, alleging that the Commission has infringed essential procedural requirements in the process leading to the adoption of the Decision, by failing (i) to open proceedings and pursue its investigation with a reasonable timeframe, (ii) to provide timely and proper access to file and (iii) to issue a supplementary statement of objections.

Second plea in law, alleging that the Commission has failed to prove to the requisite legal standard that Arrow and Lundbeck were potential competitors when entering into each of the Agreements.

Third plea in law, alleging that the Commission has failed to prove to the requisite legal standard that each of the Agreements had the object of restricting competition contrary to Article 101 TFEU.

Fourth plea in law, alleging that the Commission has infringed the principles of proportionality, nullum crimen nulla poena sine lege, and legal certainty in imposing a fine on Arrow.

Fifth plea in law, alleging in the alternative that the Commission has erred in characterising the UK Agreement and the Danish Agreement as a single continuous infringement of Article 101 TFEU and has infringed Article 25 of Regulation 1/2003¹ by imposing a fine on Arrow in respect of the Danish Agreement following the expiry of the limitation period for the imposition of fines.

Sixth plea in law, alleging in the further alternative, that the Commission has committed errors in calculating the amount of the fine by imposing a fine which is disproportionate to the gravity of the alleged infringements of Article 101 TFEU.

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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