9.11.2013

EN

Official Journal of the European Union

C 325/46

(Case T-470/13)

2013/C 325/74

Language of the case: English

Parties

Applicant: Merck KGaA (Darmstadt, Germany) (represented by: B. Bär-Bouyssière, K. Lillerud, L. Voldstad, B. Marschall, P. Sabbadini, R. De Travieso, M. Holzhäuser, S. O, lawyers, M. Marelus, Solicitor, R. Kreisberger and L. Osepciu, Barristers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—Annul Articles 1(1), 2(1) of Commission’s Decision C(2013) 3803 final of 19 June 2013 in case COMP/39.226 — Lundbeck), and Articles 2(5), 3 and 4 insofar as these are addressed to Merck;

—In the alternative, annul or reduce the penalty imposed on Merck; and

—In any event grant Merck its costs.

Pleas in law and main arguments

In support of the action, the applicant relies on thirteen pleas in law.

1.First plea in law, alleging that the Commission erred in its interpretation of the concept of a restriction by object within the meaning of Article 101.

2.Second plea in law, alleging that the Commission’s theory of harm was fundamentally flawed.

3.Third plea in law, alleging that the Commission’s approach is contrary to the principle of legal certainty.

4.Fourth plea in law, alleging that the Commission erred in failing to take any, or any adequate, account of the factual, economic and legal context, which showed that, absent the Agreements, GUK would not have launched citalopram any more quickly in the UK or other EEA markets.

5.Fifth plea in law, alleging that the Commission erred in its assessment of the scope of the Agreements between Lundbeck and GUK.

6.Sixth plea in law, alleging that the Commission erred in law and in fact in finding that Lundbeck and GUK were potential competitors.

7.Seventh plea in law, alleging that the Commission made a manifest error of assessment in concluding that GUK had an anti-competitive intention in entering into the UK and EEA Agreements.

8.Eighth plea in law, alleging that the Commission erred in fact in its findings as to the size and purpose of the value transfer between Lundbeck and GUK.

9.Ninth plea in law, alleging that the Commission fails properly to assess the arguments raised by the parties under Article 101(3) TFEU.

10.Tenth plea in law, alleging that the Commission has failed to have due regard to evidence from Merck rebutting the presumption of decisive influence and has accordingly erred in fact and law in finding that presumption not rebutted.

11.Eleventh plea in law, alleging that the Commission’s decision should be set aside on ground of undue delay.

12.Twelfth plea in law, alleging that the Commission has breached the parties right to be heard.

13.Thirteenth plea in law, alleging that the Commission erred in its assessment of penalties.