Action brought on 26 September 2014 – Unichem Laboratories/Commission

(Case T-705/14)

Language of the case: English

Parties

Applicant: Unichem Laboratories Ltd (Mumbai, India) (represented by: S. Mobley, H. Sheraton and K. Shaw, Solicitors)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Commission Decision dated 9 July 2014 relating to a proceeding under Articles 101 and 102 of the Treaty on the Functioning of the EU (Case Comp/AT. 39.612 – perindopril (Servier)) in its entirety, and in any event annul and/or reduce the fine imposed, in so far as it applies to Unichem; and

order the Commission to pay its own costs and Unichem’s costs in connection with these proceedings.

Pleas in law and main arguments

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

In the first plea in law, the applicant alleges that the Commission lacks jurisdiction to address a decision under Art. 101(1) TFEU to Unichem.

In the second plea in law, the applicant alleges that the Commission fails to apply the correct “objective necessity” legal test to determine whether the patent settlement agreement falls within the ambit of Art. 101(1) TFEU.

In the third plea in law, the applicant alleges that the Commission breaches the principle of equal treatment by not applying the Technology Transfer Block Exemption Regulation Guidelines to Unichem’s settlement.

In the fourth plea in law, the applicant alleges that the Commission errs in law by categorising the settlement as a “by object” Art. 101(1) TFEU violation.

In the fifth plea in law, the applicant alleges that the Commission misapplies its own purported Art. 101(1) “by object” legal test to the specific Unichem facts.

In the sixth plea in law, the applicant alleges that the Commission errs in law by concluding that the settlement agreement resulted in anticompetitive effects.

In the seventh plea in law, the applicant alleges that the Commission breaches its duty under Art. 296 to state reasons why it considers Unichem can be held directly liable for infringement of Art. 101(1) TFEU when it is not a potential competitor of Servier.

In the eighth plea in law, the applicant alleges that, in the alternative, the Commission errs in law by not recognising that the settlement agreement satisfies the exemption criteria under Art. 101(3) TFEU

In the ninth plea in law, the applicant alleges that the Commission breaches the rights of defence, principle of sound administration and its duty not to act oppressively to obtain legally privileged documents to use against Unichem.

In the tenth plea in law, the applicant alleges that the Commission breaches the general EU principle of equal treatment in its fine calculation by treating Unichem differently to Servier without objective justification.

In the eleventh plea in law, the applicant alleges that the Commission infringes the general EU law principle of proportionality, its own fining guidelines and prior established practice when it imposed a fine on Unichem

In the twelfth plea in law, the applicant alleges that the Commission violates its duty to state reasons pursuant to Art. 296 TFEU in respect of its fine calculation and its assessment of the gravity of Unichem’s alleged infringement.