umraniye escort pendik escort
maderba.com
implant
olabahis
canli poker siteleri meritslot oleybet giris adresi betgaranti
escort antalya
istanbul escort
sirinevler escort
antalya eskort bayan
brazzers
sikis
bodrum escort
Short Reads

General Court upholds Commission's decision that reverse payment settlements constitute a 'by object' infringement

General Court upholds Commission's decision that reverse payment settlements constitute a 'by object' infringement

General Court upholds Commission's decision that reverse payment settlements constitute a 'by object' infringement

03.10.2016 NL law

On 8 September 2016, the General Court ("GC") dismissed in their entirety the appeals brought by Lundbeck and the generic companies Alpharma, Merck KGa, Generics UK, Arrow and Ranbaxy against the European Commission's "reverse payment settlements" decision.

On the basis of these settlements, the generic companies, in exchange for a value transfer, could not launch a generic version of Lundbeck's branded citalopram for the duration of the agreements. The settlements were in part motivated by the fact that – whilst Lundbeck's initial patents had expired – it still had patents in place covering the product's manufacturing process. The GC judgments constitute the first EU court decisions ruling on the qualification of reverse payment settlements under EU antitrust law.

First, the GC confirmed that the Commission was correct to establish that Lundbeck and the generic companies were potential competitors when signing these settlements. The GC rejected Lundbeck's claim that the generic companies should not be considered as potential competitors, since its process patents were presumed to be valid under EU law as a result of which legal market entry was precluded. The GC found that the generic companies had real concrete possibilities to enter the market at the time that the agreements were concluded. The steps taken by the generic companies, such as obtaining or applying for a market authorization, demonstrated this possibility. Those factual circumstances trump any presumption of validity of intellectual property, according to the GC. 

The GC also agreed with the Commission that the settlements constitute a restriction of competition by object. In reaching this conclusion the Commission took several factors into account, such as the disproportionate nature of the reverse payments and the absence of provisions that would allow the generic companies to enter the market after the termination of the agreements, without having to fear infringement actions brought by Lundbeck. The GC found, contrary to Lundbeck's claim,  that the Commission correctly considered the value transfers as problematic, as they broadly corresponded to the profits that the generic companies could have made when entering the market or to the damages they would have obtained if they had successfully challenged Lundbeck's patents. As a result, they were high enough to remove the generic companies' incentive to enter the market and thus eliminated the competitive pressure. Consequently, the GC concluded that the settlements were comparable to market exclusion agreements and as such they constituted a restriction of competition by object.

Moreover, the GC rejected claims that the Commission should have applied the "scope of the patent" test and taken into account that the contractual restrictions did not exceed the scope of Lundbeck's process patents. The GC noted that the concept of restriction of competition by object does not include or allow for a "scope of the patent" test. The GC found that even if the restrictions imposed through the settlements potentially fell within the scope of Lundbeck's patents, these restrictions were not objectively necessary to protect the patents, as they could have been achieved through other paths, such as litigation. Finally, the GC rejected arguments relating to the alleged efficiencies brought by the settlements and errors in the calculation of the fines.

In view of the controversial nature of a significant part of the information included in the GC's decision, we believe that appeals will be lodged in the near future.

 

This article was published in the Competition Law Newsletter of October 2016. Other articles in this newsletter:

  1. Court of Justice ends Pilkington's fight against fine in the car glass cartel
  2. General Court upholds Commission's decision that reverse payment settlements constitute a 'by object' infringement
  3. European Commission puts price signalling on the agenda
  4. European Commission orders Ireland to recover illegal tax benefits worth up to €13 billion from Apple
  5. Commission publishes Preliminary Report on the e-commerce sector inquiry
  6. Brussels Court of Appeal confirms interim measures against exclusive TV broadcasting rights

Team

Related news

04.03.2021 NL law
Net(work) closing in on cross-border cartels?

Short Reads - A heads-up for companies with cross-border activities. The ECN+ Directive’s transposition deadline has expired and its provisions should by now have found their way into the national laws of the EU Member States. In the Netherlands, amendments to the Dutch Competition Act giving effect to the ECN+ Directive came into force recently, together with a new governmental decree on leniency.

Read more

04.02.2021 NL law
Game over? Gaming companies fined for geo-blocking

Short Reads - The Commission’s cross-border sales crusade seems far from over. The EUR 7.8 million fine imposed on distribution platform owner Valve and five PC video games publishers for geo-blocking practices is the most recent notch in the Commission’s belt. Food producer Mondelĕz may be next on the Commission’s hit list: a formal investigation into possible cross-border trade restrictions was opened recently.

Read more

04.03.2021 NL law
Amsterdam Court of Appeal accepts jurisdiction in competition law damages case concerning Greek beer market

Short Reads - On 16 February 2021, the Amsterdam Court of Appeal (the Court of Appeal) set aside a judgment of the Amsterdam District Court (the District Court) in which the District Court declined jurisdiction over the alleged claims against Athenian Brewery (AB), a Greek subsidiary of Heineken N.V. (Heineken), in a civil case brought by competitor Macedonian Thrace Brewery (MTB).

Read more

04.02.2021 NL law
ECJ clarifies limits of antitrust limitation periods

Short Reads - Companies confronted with antitrust investigations and fines may find safeguard behind the rules governing limitation periods (often termed ‘statutes of limitation’). However, two preliminary rulings by the European Court of Justice (ECJ) show that those rules are not necessarily set in stone. According to the ECJ, national time limits relating to the imposition of antitrust fines may require deactivation if these limits result in a ‘systemic risk’ that antitrust infringements may go unpunished.

Read more

29.01.2021 NL law
Publicatie en inwerkingtreding Uitvoeringswet Screeningsverordening buitenlandse directe investeringen

Short Reads - Op 4 december 2020 is een uitvoeringswet in werking getreden die bepaalde elementen uit de Verordening screening van buitenlandse directe investeringen in de Unie regelt en zorgt dat Nederland voldoet aan de verplichtingen uit die verordening. Ook is er een conceptwetsvoorstel toetsing economie en nationale veiligheid verschenen. 

Read more