The Court of Justice of the European Union has dismissed appeals by Danish company Lundbeck and several pharmaceutical companies against a September 2016 EU General Court ruling that found a cartel dating back to 2002 with the intention of delaying the marketing of the generic antidepressant citalopram, in judgments handed down on Thursday 25 March (cases C-586, 588, 591, 601, 611, 614/16 P) (see EUROPE 11616/29).
According to the Court of Justice, the General Court did not make a mistake in finding that, at the time the agreements were concluded, Lundbeck and the generic manufacturers were in a situation of potential competition. The existence of a patent protecting the manufacturing process of an active ingredient in citalopram that has fallen into the public domain does not constitute an insurmountable barrier to entry to the market for a generic manufacturer, it says.
Furthermore, as the General Court found, the agreements at issue constitute restrictions of competition ‘by purpose’. The payments from Lundbeck, the manufacturer of the original drugs, to the generic drug companies are solely due to the parties’ common commercial interest not to compete on the merits.
Thirdly, the Court considers that the General Court committed an error of law by imposing an obligation of diligence on two generic manufacturers, Xellia Pharmaceuticals and Alpharma arising from case law which was not applicable to the situation in which they found themselves.
Nevertheless, the European Court of Justice has not overturned the decision of the General Court. By substituting grounds, it considered that the two companies, in view of the fact that the Commission had already opened a sector enquiry into the field of generic medicines in 2008, were under a specific duty of care requiring them to ensure that they properly preserved the information needed to trace their activities in order to have the necessary evidence if there were administrative or judicial proceedings following the sector enquiry.
In the end, the Court confirms the fine of 93.8 million euros imposed on Lundbeck and the fines totalling 52.2 million euros imposed on the other companies (see EUROPE 10870/12).
Read the judgment: https://bit.ly/3fd0RvF (Original version in French by Mathieu Bion)