Judgments nº T-574/14 of Tribunal General de la Unión Europea, September 26, 2018

• Resolution Date: September 26, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-574/14

(Competition - Agreements, decisions and concerted practices - Parallel trade in medicines - Agreement operating a distinction between prices charged for products intended for resale in Spain and prices charged for products intended for export to other Member States - Request for re-examination of a complaint following judgments of the Court of Justice and the General Court - Article 266 TFEU - Rejection of a complaint - No Union interest - Cessation of the anti-competitive practice - Absence of persisting anti-competitive effects - Case being dealt with by a competition authority of a Member State - Obligations in relation to the investigation of a complaint - Article 105 TFEU - Article 7 of Regulation (EC) No 1/2003 - Procedural rights of a complainant - Obligation to state reasons)

In Case T-574/14,

European Association of Euro-Pharmaceutical Companies (EAEPC), established in Brussels (Belgium), represented by J.L. Buendía Sierra, L. Ortiz Blanco, Á. Givaja Sanz and M. Araujo Boyd, lawyers,

applicant,

v

European Commission, represented by F. Castilla Contreras, F. Jimeno Fernández and C. Vollrath, acting as Agents,

defendant,

supported by

GlaxoSmithKline plc, established in Brentford (United Kingdom),

and

GlaxoSmithKline SA, established in Madrid (Spain),

represented initially by I.S. Forrester QC, and A. Komninos, lawyer, and subsequently by A. Komninos,

interveners,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2014) 3654 final of 27 May 2014 rejecting the complaint filed by the applicant concerning an alleged infringement by Glaxo Wellcome SA of Article 101 TFEU (Case COMP/AT.36957 - Glaxo Wellcome),

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, C. Iliopoulos (Rapporteur) and L. Calvo-Sotelo Ibáñez-Martín, Judges,

Registrar: C. Heeren, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 April 2017,

gives the following

Judgment

Background to the dispute

1 The applicant, European Association of Euro-Pharmaceutical Companies (EAEPC), is a European association established in Brussels (Belgium) which represents the interests of independent companies operating in the export or import and re-packaging of finished pharmaceutical products within the European Economic Area (EEA).

2 GlaxoSmithKline SA, formerly Glaxo Wellcome SA, is a company regulated by Spanish law established in Madrid (Spain) whose main activity is the development, manufacture and marketing of medicines in Spain. GlaxoSmithKline plc, the parent company of GlaxoSmithKline SA (together ‘GSK’ or ‘the interveners’), is established in Brentford (United Kingdom) and is one of the world’s main producers of pharmaceutical products.

Initial administrative procedure

3 On 6 March 1998, Glaxo Wellcome SA notified to the Commission of the European Communities its new general sales conditions to authorised wholesalers in Spain (‘the agreement’) with a view to obtaining negative clearance pursuant to Article 2 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [85 and 86 of the EC Treaty, which became Articles 81 and 82 EC and then Articles 101 and 102 TFEU] (OJ, English Special Edition 1959-62, p. 87), or, alternatively, an individual exemption pursuant to Article 4 of that regulation, now repealed by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC [now Articles 101 and 102 TFEU] (OJ 2003 L 1, p. 1). By letter of 28 July 1998, Glaxo Wellcome plc, the parent company of Glaxo Wellcome SA, sent a supplementary notification to the Commission, drawing attention to certain factors which affected its business and that of its subsidiaries throughout the territory of the European Union and which were not specific to Glaxo Welcome’s business.

4 The agreement concerned 82 medicines intended for sale to wholesalers established in Spain with whom GSK had commercial relations. Those wholesalers could intend to resell them to hospitals or pharmacies in Spain, or in other Member States. Article 4 of the agreement distinguished between the prices charged to wholesalers for medicines that were to be resold on the national market and those charged for medicines that were to be exported. The agreement was signed by GSK and 75 wholesalers, entered into force on 9 March 1998 and was suspended by the Tribunal de Defensa de la Competencia (Competition Tribunal, Spain) on 16 October 1998.

5 On 19 January 1999, the applicant lodged a complaint with the Commission pursuant to Article 3(2) of Regulation No 17 (‘the 1999 complaint’), whereby it requested the Commission to refuse to grant negative clearance or an exemption and to order GSK to bring the pricing policy provided for in the agreement to an end. The applicant claimed that the dual-pricing scheme provided for in the agreement entailed an indirect prohibition on exports and an instrument for sealing off of the market contrary to Article 101(1) TFEU and could not benefit from an exemption under Article 101(3) TFEU.

6 On 8 May 2001, the Commission adopted Decision 2001/791/EC relating to a proceeding pursuant to Article 81 of the EC Treaty (Cases: IV/36.957/F3 Glaxo Wellcome (notification), IV/36.997/F3 Aseprofar and Fedifar (complaint), IV/37.121/F3 Spain Pharma (complaint), IV/37.138/F3 BAI (complaint), IV/37.380/F3 EAEPC (complaint)) (OJ 2001 L 302, p. 1, ‘the 2001 decision’), according to which the agreement notified had the object and effect of restricting competition within the meaning of Article 101(1) TFEU. Article 1 of that decision provides that Glaxo Wellcome ‘has infringed Article [101(1) TFEU] by entering into an agreement with Spanish wholesalers operating a distinction between prices charged to wholesalers in the case of domestic resale of reimbursable drugs to pharmacies or hospitals and higher prices charged in the case of exports to any other Member State’. Article 2 of the 2001 decision provides that the notified conditions of sale did not meet the conditions for exemption in Article 101(3) TFEU. Lastly, Articles 3 and 4 of the 2001 decision order Glaxo Wellcome to ‘immediately bring to an end the infringement referred to in Article 1’ and to inform the Commission of the steps taken to that effect, respectively.

Proceedings before the General Court and the Court of Justice

7 On 23 July 2001, GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc, brought an action for annulment of the 2001 decision. The applicant intervened in support of the form of order sought by the Commission.

8 By judgment of 27 September 2006, GlaxoSmithKline Services v Commission (T-168/01, ‘the judgment in Case T-168/01’, EU:T:2006:265), the General Court dismissed the action in so far as it concerned Article 1 of the 2001 decision. In that regard, the General Court considered that, although the principal conclusion reached by the Commission, namely that Clause 4 of the agreement had as its object the restriction of competition, was incorrect, GlaxoSmithKline Services had not succeeded in calling in question the Commission’s subsidiary conclusion that that provision had the effect of restricting competition and was, therefore, contrary to Article 101(1) TFEU (the judgment in Case T-168/01, paragraphs 147 and 194). Conversely, the General Court upheld the action as regards Articles 2 to 4 of the 2001 decision and annulled those articles on the ground that the Commission had not carried out an adequate examination of whether the conditions laid down in Article 101(3) TFEU had been fulfilled (the judgment in Case T-168/01, paragraphs 308 and 316 to 318).

9 By their appeals, GlaxoSmithKline Services, the Commission and the applicant requested the Court of Justice to set aside in part the judgment in Case T-168/01.

10 By judgment of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others (C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, ‘the judgment in Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P’, EU:C:2009:610), the Court of Justice, first, held that the General Court’s reasoning was flawed and upheld the Commission’s conclusion in the 2001 decision that the agreement had as its object the restriction of competition and thus infringed Article 101(1) TFEU. However, the Court of Justice considered that the error of law on the part of the General Court did not constitute a ground for setting aside its judgment, since it had been held in that judgment that the agreement was contrary to Article 101(1) TFEU (judgment in Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, paragraphs 64 to 67). Secondly, the Court of Justice upheld the General Court’s finding that the Commission had not carried out a full examination of the arguments put forward by GlaxoSmithKline Services concerning the exemption under Article 101(3) TFEU (judgment in Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, paragraphs 68 to 168). The Court of Justice therefore dismissed the appeals brought.

Procedure before the Commission following the judgment in Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P

11 On 26 January 2010, GSK formally withdrew its request of 6 March 1998 for negative clearance or an individual exemption, for considerations of procedural economy and in order to avoid needless expenditure of time and resources, emphasising that the notification had been filed in 1998, that it had not operated the pricing scheme in Spain since then and that market conditions had changed substantially.

12 Following delivery of the judgment of the Court of Justice in Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P, the Commission held a series of meetings with the applicant and other interested parties, maintained contacts with the Spanish authorities, examined new observations submitted by the applicant and opened an investigation on 24 January 2012 regarding...