GlaxoSmithKline Services Unlimited v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62001TJ0168
• ECLI: ECLI:EU:T:2006:265
• Court: General Court (European Union)
• Date: 27 September 2006
• Docket Number: T-168/01
• Procedure Type: Recours en annulation - fondé

Case T‑168/01

GlaxoSmithKline Services Unlimited

v

Commission of the European Communities

(Competition – Wholesale distribution of medicines – Parallel trade – Differentiated prices – Article 81(1) EC – Agreement – Restriction of competition – Object – Relevant market – Effect – Article 81(3) EC – Contribution to the promotion of technical progress – No elimination of competition – Proof – Statement of reasons – Subsidiarity)

Judgment of the Court of First Instance (Fourth Chamber, Extended Composition), 27 September 2006

Summary of the Judgment

1. Acts of the institutions – Statement of reasons – Obligation – Scope – Judicial review

(Art. 253 EC)

2. Actions for annulment – Pleas in law – Lack of or inadequate statement of reasons – Distinction from challenge to merits of the grounds

(Arts 230 EC and 253 EC)

3. Actions for annulment – Commission decision adopted on the basis of Article 81(1) EC – Complex economic assessment – Judicial review – Limits

(Arts 81(1) EC and 230 EC)

4. Actions for annulment – Subject-matter – Decision applying Article 81 EC – Acceptable evidence

(Arts 81 EC and 230 EC)

5. Competition – Community rules – Substantive scope – Conduct imposed by national measures – Not included – Evaluation of actual scope for free competition

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Covering only bilateral or multilateral conduct – Existence of a joint intention as to the conduct to be adopted on the market – Sufficient condition

(Art. 81(1) EC)

7. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission – Evidence of having distanced itself from the agreement borne by the undertaking relying on its intention to do so

(Art. 81(1) EC)

8. Competition – Community rules – Substantive scope – Sector of medicines reimbursed by the national sickness insurance scheme – Included notwithstanding national intervention in matters of prices

(Art. 81(1) EC)

9. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Assessment by reference to the economic and legal context – Anti-competitive object rendering proof of anti-competitive effects unnecessary

(Arts 3(1)(g) EC and 81(1) EC)

10. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreements intended to limit parallel trade – Criteria for assessment – Taking into account of effects for final consumers – Presumption of anti-competitive object – Limits – Sector of medicines reimbursed by the sickness insurances scheme – Not included

(Art. 81(1) EC)

11. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Application of unequal conditions to equivalent services – System of differentiated prices – Assessment – Need to take account of the different regulatory framework depending on the Member States – Circumstance of medicines reimbursed by the national sickness insurance schemes

(Art. 81(1)(d) EC)

12. Community law – Principles – Principle of subsidiarity – Application in the sphere of competition – Requirement of an effect on trade between Member States

(Arts 5, second para., EC and 81(1) EC)

13. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions – Burden of proof – Scope – Examination by the Commission

(Art. 81(3) EC)

14. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions – Complex economic assessment – Discretion of the Commission – Judicial review – Limits

(Art. 81(3) EC)

15. Competition – Agreements, decisions and concerted practices – Not allowed – Exemption – Conditions – Improvement in the production or distribution of goods or promotion of technical or economic progress – Appreciable objective advantages of such a kind as to offset the disadvantages of the agreement for competition – Examination by the Commission

(Art. 81(3) EC)

16. Actions for annulment – Action against a Commission decision on a request for negative clearance or exemption under Regulation No 17 – Judgment annulling act – Effects

(Art. 233, first para., EC; Council Regulations No 17 and No 1/2003)

1. Article 253 EC states, in particular, that decisions adopted by the Commission are to state the reasons on which they are based.

In order to state the reasons to the requisite legal standard, a decision of the Commission must disclose clearly the reasoning followed by that institution in such a way as to enable the persons concerned to understand the basis for it and the Court to ascertain whether it is well founded. On the other hand, such a decision is not required to go into all the relevant facts and points of law, since the question of compliance with Article 253 EC is assessed by reference to both the wording of the measure and its legal and factual context.

The need to state the reasons for its decisions therefore does not place the Commission under any general obligation to refer to a specific judicial decision in the decisions which it adopts.

(see paras 49-51)

2. The examination of the existence and the scope of the reasons on which a Commission decision is based forms part of the review of essential procedural requirements and of the formal legality of that decision. It must therefore be distinguished from the examination of the merits of the grounds of the decision, which forms part of the review of its substantive legality.

(see para. 54)

3. When it is dealing with an application for annulment of a Commission decision applying Article 81(1) EC, the Community judicature carries out, in accordance with Article 230 EC, a review of the lawfulness of that decision.

In that regard, the Court must undertake a comprehensive review of the examination carried out by the Commission, unless that examination entails a complex economic assessment, in which case review by the Court is confined to ascertaining that there has been no misuse of powers, that the rules on procedure and on the statement of reasons have been complied with, that the facts have been accurately stated and that there has been no manifest error of assessment of those facts.

(see paras 57, 145)

4. Review by the Court dealing with an action for annulment of a decision applying Article 81 EC is carried out solely by reference to the elements of fact and of law existing on the date of adoption of the contested decision, without prejudice to the possibility afforded to the parties, in the exercise of their rights of defence, to supplement them by evidence established after that date but for the specific purpose of contesting or defending that decision.

(see paras 58, 245)

5. Article 81(1) EC applies only to anti-competitive conduct engaged in by undertakings on their own initiative.

Where, in order to decide whether that provision is applicable, it is necessary first to evaluate the possible impact of national regulations, it must be determined whether those regulations leave any scope for competition that might be prevented, restricted or distorted by autonomous conduct on the part of undertakings.

Where it is clear, following that evaluation, that the regulations in question require that undertakings engage in anti-competitive conduct, or eliminate any possibility of competitive activity on their part, Article 81(1) EC does not apply.

Where, on the other hand, it is clear that those regulations do leave scope for competition that might be prevented, restricted or distorted by autonomous conduct on the part of undertakings, Article 81(1) EC does apply.

The possibility of excluding particular anti-competitive conduct from the scope of that provision on the ground that it is required by national regulations has been applied restrictively by the Community Courts.

(see paras 66-70)

6. Article 81(1) EC applies only to bilateral or multilateral conduct on the part of undertakings and such conduct may take the form of agreements, concerted practices or decisions of associations.

In order for there to be an agreement, it is sufficient that at least two undertakings have expressed their joint intention to conduct themselves on the market in a specific way.

While it is therefore essential that the decisions in which the Commission applies Article 81(1) EC show the existence of a joint intention to act on the market in a specific way, those decisions are not required to establish the existence of a joint intention to pursue an anti-competitive aim.

(see paras 75-77)

7. It is for the Commission to prove the infringements which it finds by adducing, in the decisions in which it applies the competition rules, precise and coherent evidence demonstrating convincingly the existence of the facts constituting those infringements.

That evidence may consist of direct evidence, taking the form, for example, of a written document, or, failing that, indirect evidence, for example in the form of conduct.

Where the Commission has adduced evidence of the existence of an agreement, it is for an undertaking which has taken part in that agreement and denies having committed an infringement to adduce evidence that it distanced itself from that agreement, evidence which must demonstrate a clear intention, brought to the notice of the other participating undertakings, to withdraw from that agreement.

(see paras 82-83, 86)

8. The sector of medicines reimbursed by the national sickness insurance scheme continues to be characterised, in a number of Member States, by the existence of regulations which go beyond the mere regulation of an economic activity, in particular in matters of prices. The coexistence of those different national regulations may distort competition. It tends, moreover, to favour a certain partitioning of the...