The
General Court has dismissed appeals by Lundbeck and several other producers of
generic drugs against a 2013 decision of the European Commission finding that
they had infringed Article 101(1) TFEU by agreeing to prevent the entry of a
rival generic antidepressant. The Court
also upheld fines of around EUR150 million imposed on the companies.
The
Court concluded that the Commission had correctly found that Lundbeck and the
generic producers were potential competitors at the time that the agreements
were entered into.
The
Court also upheld the Commission’s findings that patent settlements and commitments
by the generic producers not to introduce generic rivals to citalopram in 2002
in return for tens of millions of euros represented restrictions of competition
by object.
The
Court found that Lundbeck had not demonstrated that the restrictions were
objectively necessary to protect its intellectual property rights. The Court
also rejected arguments related to Article 101(3) and the scope of patent
protection.
The
judgment sits uneasily with the Commission’s 2013 decision where it acknowledged
that not all so-called reverse-payment settlements are problematic. The judgment seems to imply that as soon as
there is a value transfer there is a restriction by object. The Court concluded that the Commission
satisfied the test in Cartes Bancaires
for determining when there is a restriction by object by looking at the economic
and legal context of the arrangements. However, it did not say that the case
law required an assessment of the type of agreements in a specific sector. It is expected that the judgments will be
appealed.
Judgments of 8 September 2016:
Case T-472/13 – Lundbeck v Commission.
Case T-471/13 – Xelia Pharmaceuticals
and Alpharma v Commission
Case T-460/13 - Sun Pharmaceutical
Industries and Ranbaxy (UK) v Commission
Case T-467/13 - Arrow Group and Arrow
Generics v Commission
Case T-469/13 – Generics (UK) v
Commission
Case T-470/13 – Merck v Commission
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