On 8 September 2016, the General Court of the EU (GCEU) handed down five judgments upholding a decision by the Commission of 19 June 2013 imposing fines on Lundbeck, an originator company, and Merck (the parent company of Generics), Arrow, Alpharma and Ranbaxy, four generic companies. The Commission found that the companies had entered into anticompetitive “pay-for-delay” settlement agreements whereby Lundbeck paid a lump sum to the generic companies in exchange for their agreement to delay their entry on the market for Citalopram, an anti-depressant drug.
This ruling is notable in that it is the first time that the GCEU has been asked to rule on patent settlements between originators and generic companies. The GCEU upheld the Commission’s reasoning, noting that the Commission’s reasoning in this case reflects the provisions of its Guidelines on the application of Article 101 of the Treaty on the Functioning of the EU (TFEU) to technology transfer agreements.
In the European Union (EU), at the inception of a joint venture (JV), parent companies must determine whether the newly created structure presents a full-functionality nature, which depends on its degree of autonomy. The answer to this question will determine the legal framework applicable to it.
On the one hand, if the JV is full-function it will fall within the scope of the EU Merger Regulation (Council Regulation (EC) No 139/2004 of 20 January 2004), assuming that the turnover thresholds set out in the Regulation are met. Under these circumstances, the European Commission (EC) will assess the impact of the JV on competition on an ex ante basis.
On the other hand, if the JV is not full-function and takes the form of a partnership formalized by a legal structure to a large extent dependent on its parent companies, the creation of a JV will not have to be notified but the EC may operate a control ex post, in the light of Article 101(1) of the Treaty on the Functioning of the EU which prohibits anticompetitive agreements between undertakings. In such a context, it is up to the parent companies creating a JV to determine whether their JV is compatible with competition law rules.
The ex post control has the advantage of avoiding the notification process that delays the implementation of the JV. However, within that framework, companies may not obtain a clearance decision and the fate of their JV is subject to legal uncertainty. It is thus generally preferable for companies to make sure that their JV will fall within the scope of the Merger Regulation because a clearance decision is irrevocable and unlimited.
With a judgment handed down on 12 May 2016 (Case T-669/14, Trioplast Industrier AB v. European Commission), the General Court of the European Union (GCEU) dismissed an action brought by Trioplast Industrier AB (Trioplast Industrier) claiming the annulment of an alleged decision by the European Commission (EC) to ask Trioplast Industrier to pay interest for the late payment of a fine imposed on it for its involvement in the industrial bags cartel.
The case shows that when handed a fine, interest begins to accrue regardless of whether the fine is altered down the line through appeal.
By way of background, in 2005, the EC found that between January 1982 and June 2002 there had been a cartel on the market for plastic industrial bags consisting in, inter alia, price-fixing, agreements on sales quotas and the allocation of tender contracts. Among the addressees of the EC decision was Trioplast Wittenheim, a company that directly participated in the infringement. Trioplast Wittenheim was a subsidiary of FLSmidth before being purchased by Trioplast Industrier in 1999. The EC imposed a fine on Trioplast Wittenheim of €17.85 million and decided that Trioplast Industrier and FLSmidth should be held jointly and severally liable with Trioplast Wittenheim for the amounts of €7.73 million and €15.30 million, respectively.
Trioplast Industrier and FLSmidth each lodged an appeal before the GCEU seeking the annulment of the EC decision. Shortly afterwards, Trioplast Industrier provided the EC a bank guarantee for €4.87 million. (more…)
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