ADVOCATE GENERAL’S OPINION ON LUNDBECK v. COMMISSION CASE

08.06.2020

On 4 June 2020, Advocate General Kokott delivered the Opinion in Case C-591/16 P Lundbeck v Commission, and proposed that the Court of Justice should uphold the fine of almost €94 million imposed on the Lundbeck pharmaceutical group in the context of agreements intended to delay the marketing of generic versions of its antidepressant medicinal product citalopram.

In the present case, the Commission of the EU’s prohibition on cartels imposed a fine of almost € 94 million on the Danish pharmaceutical group Lundbeck on the ground that Lundbeck made payments to four manufacturers of generic medicinal products in exchange for which those manufacturers agreed to refrain from entering the market.

According to the Commission, such patent dispute settlements become problematic when they clash with the rules of competition law because their true aim is not to resolve a patent dispute, but to forestall or delay the market entry of potential competitors. The General Court also upheld the Commission’s decision. Upon this Lundbeck brought an appeal against the judgment of the General Court.

For this case, Advocate General Kokott proposes that the Court should dismiss the appeal and uphold the General Court’s judgment and the Commission’s decision because there was a potential competitive relationship between Lundbeck and the manufacturers of generic medicinal products at the time the agreements were concluded.

Moreover, Advocate General Kokott found the General Court right for the fact that a manufacturer of generic medicinal products does not yet have a marketing authorisation for its product in a given State does not preclude the existence of potential competition.

In particular, she agrees with the General Court’s finding that those agreements went beyond the specific subject matter of Lundbeck’s intellectual property rights, which indeed included the right to oppose infringements, but not the right to conclude agreements by which actual or potential competitors were paid not to enter the market.

In this sense, Advocate General Kokott offers that the Court of Justice should uphold the fine of almost €94 million imposed on the Lundbeck pharmaceutical group in the context of agreements intended to delay the marketing of generic versions of its antidepressant medicinal product citalopram.

You can read the text of the Advocate General’s opinion here.

Should you have any queries and/or remarks, please do not hesitate to contact us. 

Kind regards,

Zumbul Attorneys-at-Law

info@zumbul.av.tr