The European Court of First Instance partially annulled the European Commission's decision finding the existence of cartels and an abuse of a dominant position on the market for perindopril, a medicine to combat heart problems, in several judgements delivered on Wednesday 12 December (Cases T-677, 679, 680, 682, 684, 691, 701, 705/14).
Following disputes over the validity of the 947 patent for erbumine, the active pharmaceutical ingredient of perindopril, the French Servier group has entered into settlement agreements with Nichem and its parent company, Unichem, Matrix, Teva, Krka and Lupin, several generic drug companies, providing that these companies do not enter the market and do not contest the patent.
In 2014, the European Commission imposed fines on all these companies, considering that the amicable agreements constituted restrictions of competition by object and effect (see EUROPE 11118). Servier also applied an exclusion strategy constituting an abuse of a dominant position.
In its judgements, the Court confirms that all the amicable agreements concluded by the French group, with the exception of the one with Krka, constitute restrictions of competition by object. According to him, generic companies had real opportunities to enter the market with their generic penindopril. And the disputed agreements must be regarded as market exclusion agreements, the financial incentive advantage granted by Servier to generic companies being the real cause of the restrictions on competition.
However, the Court of First Instance reduced the fine imposed on Servier under the agreement with Matrix from 79.12 to 55.38 million euros. It cancels the fine imposed on Servier and Krka, concluding that there was no restriction of competition under the agreement between the two companies.
In addition, the Court holds that the Commission wrongly concluded that Servier held a dominant position on the market for perindopril in four Member States and had abused that dominant position.
In his view, the Commission misunderstood the relevant market by placing excessive importance on price in the analysis of competitive constraints. Demand for perindopril is primarily determined by prescribers who choose perindopril more by therapeutic use than by cost.
Since the fine imposed on Servier for abuse of a dominant position was completely annulled, the Court of First Instance reduced the total amount of the fines imposed on the French group from 330.99 to 228.32 million euros. (Original version in French by Mathieu Bion)