GlaxoSmithKline Services Unlimited v Commission of the European Communities (C-501/06 P) and Commission of the European Communities v GlaxoSmithKline Services Unlimited (C-513/06 P) and European Association of Euro Pharmaceutical Companies (EAEPC) v Commission of the European Communities (C-515/06 P) and Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) v Commission of the European Communities (C-519/06 P).

• Jurisdiction: European Union
• Celex Number: 62006CJ0501
• ECLI: ECLI:EU:C:2009:610
• Court: Court of Justice (European Union)
• Docket Number: C-519/06,C-513/06,C-515/06,C-501/06
• Date: 06 October 2009
• Procedure Type: Recurso de casación - inadmisible

Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P

GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc

v

Commission of the European Communities

(Appeals – Agreements, decisions and concerted practices – Restriction of parallel trade in medicines – Article 81(1) EC – Restriction of competition by object – National price regulations – Replacement of grounds – Article 81(3) EC – Contribution to promoting technical progress – Review – Burden of proof – Statement of reasons – Interest in bringing proceedings)

Summary of the Judgment

1. Appeals – Interest in bringing proceedings – Condition

2. Appeals – Cross-appeal – Subject-matter

(Rules of Procedure of the Court of Justice, Art. 116)

3. Appeals – Cross-appeal – Interest in bringing proceedings – Condition

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Intention of the parties to an agreement to restrict competition – Unnecessary criterion

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreements intended to restrict parallel trade

(Art. 81 EC)

7. Competition – Agreements, decisions and concerted practices – Prohibition – Exemption – Conditions – Burden of proof

(Art. 81(3) EC)

8. Competition – Agreements, decisions and concerted practices – Prohibition –Exemption – Conditions – Complex evaluation of economic matters

(Art. 81(3) EC)

9. Competition – Agreements, decisions and concerted practices – Prohibition – Exemption – Conditions – Improvement of production or distribution of goods or promotion of technical or economic progress

(Art. 81(3) EC)

1. For an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it. In so far as an appeal is directed against part of the grounds of a judgment and asks the Court to effect a replacement of grounds, without calling into question the operative part of that judgment, it must be held to be inadmissible because it cannot procure an advantage for the party bringing it and is not capable of affecting the operative part of that judgment.

(see paras 23-26)

2. In a situation in which an applicant and a defendant at first instance both bring an appeal against the same judgment of the Court of First Instance, there is nothing in the wording of Article 116 of the Rules of Procedure of the Court of Justice to indicate that a defendant at first instance may not bring, cumulatively, on the one hand, an appeal and, on the other, a cross-appeal against the main appeal brought by the applicant at first instance, irrespective of whether that judgment relates to a number of cases and whether those cases have been joined. Cases which have been joined do not cease to be distinct cases. Bringing an appeal and a cross-appeal cumulatively does not constitute an abuse of procedure.

There is, moreover, nothing in the wording of Article 116 of the Rules of Procedure to indicate that the defendant at first instance who has brought an appeal and a cross-appeal may not, in the context of the cross-appeal, rely on grounds of defence in response to the specific pleas contained in the appeal brought by the applicant at first instance. The fact that the grounds of defence are set out in the part of its response entitled ‘cross-appeal’ is not such as to cast doubt on this conclusion. Importance should not be attached solely to the formal title of a part of pleadings, without regard to the actual content of that part.

(see paras 31, 36, 38)

3. Just as for an appeal, for an appellant to have an interest in bringing proceedings the cross-appeal must be capable, if successful, of procuring an advantage to the party bringing it.

(see para. 33)

4. The anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. The alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise purpose of the agreement, in the economic context in which it is to be applied. If, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the consequences of the agreement are then to be considered and for it to be caught by the prohibition factors must be found to be present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. It is not necessary to examine the effects of an agreement once its anti-competitive object has been established.

(see para. 55)

5. In order to assess the anti-competitive nature of an agreement, regard must be had, in particular, to the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part. In addition, although the parties’ intention is not a necessary factor in determining whether an agreement is restrictive, there is nothing to prohibit the Commission or the Community judicature from taking that aspect into account.

(see para. 58)

6. With respect to parallel trade, in principle, agreements aimed at prohibiting or limiting parallel trade have as their object the prevention of competition. Neither the wording of Article 81(1) EC nor the case-law lends support to the position that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as it may be presumed to deprive final consumers of the advantages of effective competition in terms of supply or price. First, there is nothing in the wording of Article 81(1) EC to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly, like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price. It follows that a finding of an anti-competitive object of an agreement may not be made subject to a requirement of proof that the agreement entails disadvantages for final consumers.

The principle according to which an agreement aimed at limiting parallel trade is a ‘restriction of competition by object’ applies to the pharmaceuticals sector.

(see paras 59-60, 62-64)

7. A person who relies on Article 81(3) EC must demonstrate, by means of convincing arguments and evidence, that the conditions for obtaining an exemption are satisfied. The burden of proof thus falls on the undertaking requesting the exemption. However, the facts relied on by that undertaking may be such as to oblige the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged.

In particular, the examination of an agreement for the purposes of determining whether it contributes to the improvement of the production or distribution of goods or to the promotion of technical or economic progress, and whether that agreement generates appreciable objective advantages, must be undertaken in the light of the factual arguments and evidence provided in connection with the request for exemption under Article 81(3) EC. Such an examination may require the nature and specific features of the sector concerned by the agreement to be taken into account if its nature and those specific features are decisive for the outcome of the analysis. Taking those matters into account does not mean that the burden of proof is reversed, but merely ensures that the examination of the request for exemption is conducted in the light of the appropriate factual arguments and evidence provided by the party requesting the exemption.

(see paras 82-83, 102-103)

8. When dealing with an application for annulment of a decision by the Commission taken in response to a request for exemption under Article 81(3) EC, the Community judicature carries out a restricted review of its merits. In the course of such a review, it may, in particular, ascertain whether the Commission provided sufficient reasons with regard to the factual arguments and relevant evidence submitted by the applicant in support of its request for exemption. When the Commission has not provided reasons in relation to one of the conditions laid down in Article 81(3) EC, the Court of First Instance must examine whether or not the statement of reasons in the Commission’s decision relating to that condition is, from an overall perspective, sufficient. Such an approach is fully in keeping with the principle that the review by the Community judicature of complex economic assessments made by the Commission is necessarily confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers. It is not for the Community judicature to substitute its economic assessment for that of the institution which adopted the decision whose legality it is requested to review.

(see paras 84-86, 146-148, 163-164)

9. In order to be exempted under Article 81(3) EC, an agreement must contribute to improving the production or distribution of goods or to promoting technical or economic progress. That...