In the past year, the French pharmaceutical company Servier has been involved in heavy litigation before the EU courts.
A number of pharmaceutical companies (Niche/Unichem, Matrix, Teva, Krka and Lupin), producing the generic variation of the drug perindopril, produced originally by Servier, had decided to enter the market, challenging the validity of its patents. This led to a series of patent settlement agreements between Servier and them.
Based on these agreements, the generic producers agreed to abstain from competing with Servier until the expiration of its patent in exchange for a series of financial settlements in the range of 110 million euros. In 2008, during its pharmaceutical sector inquiry, the European Commission decided to undertake a review of the said settlement agreements.
In 2014, the Commission established that, by the delaying of the market entry of the generic variations of perindopril, the said agreements consisted of restrictions of competition under articles 101 and 102 TFEU. In that line of reasoning, the Commission sanctioned Servier and the generic producers a total of 427.7 million euros, of which 330.99 million euros for Servier.
The present article discusses the much awaited judgment of the General Court in the Servier/Commission case (Judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, EU:T:2018:922).
On one hand, the Court upheld the Commission’s findings of the restriction of competition by object for the settlement agreements between Servier and Niche, Matrix, Teva and Lupin. On the other – the General Court disagreed with the European Commission’s findings that the settlement agreement between Servier and Krka consisted of a restriction of competition either by effect of object. In that line of reasoning the court annulled the Commission’s decision for that specific section. Regarding the fines that were imposed, the court confirmed them for the Niche, Teva and Lupin settlement agreements. It reduced the sanction imposed on Servier for the Matrix settlement and additionally annulled the fine imposed for Servier’s Krka settlement. Furthermore, the General Court established that the Commission did not properly define the relevant market to be limited to perindopril. Resulting from the erroneous market definition, the Commission did not properly establish a dominant position and the General Court had to annul the respective section of the decision and therefore annul the fine imposed for the infringement of article 102 TFEU.
 Dimitar Manolchev – Legal counsel (LL.M. (Bruges, London), LL.B. (Strasbourg, Birmingham))