17.11.2014

EN

Official Journal of the European Union

C 409/54

(Case T-679/14)

2014/C 409/74

Language of the case: English

Parties

Applicants: Teva UK Ltd (West Yorkshire, United Kingdom), Teva Pharmaceuticals Europe BV (Utrecht, Netherlands) and Teva Pharmaceutical Industries Ltd (Jerusalem, Israel) (represented by: D. Tayar and A. Richard, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—accept the present application and declare the action admissible;

—annul Article 3 of Decision COMP/AT.39612 ‘Perindopril (Servier)’ of 9 July 2014 insofar as it finds that Teva UK limited, Teva Pharmaceuticals Europe B.V. and Teva Pharmaceutical Industries Limited infringed Article 101 of the Treaty;

—cancel the fine imposed Teva UK limited, Teva Pharmaceuticals Europe B.V. and Teva Pharmaceutical Industries Limited in Article 7 of Decision COMP/AT.39612 ‘Perindopril (Servier)’ of 9 July 2014;

—if the Court does not annul Article 3 of the Decision or cancel the fine in its entirety, substantially reduce it; and

—order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

1.First plea in law, alleging that the Commission erred legally and factually in characterising the agreement entered into by Teva and Servier in 13 June 2006 (the ‘Agreement’) as a restriction by object. As a legal matter, the Commission wrongly characterised as by object restrictions all agreements that are capable of restricting competition instead of only agreements that will unambiguously, by their very nature, reveal a sufficient degree of harm to competition. As a factual matter, the circumstances that prevailed when the Agreement was negotiated, in particular the genuine intellectual property risks that Teva faced, demonstrate that Teva entered into the Agreement to secure a timely market entry and not to receive an inducement in exchange for a delayed entry.

2.Second plea in law, alleging that the Commission erred legally and factually in characterising the Agreement as a restriction by effect, as the Decision does not produce evidence to the requisite standard of a restriction of competition in comparison to the relevant counterfactual.

3.Third plea in law, alleging that even if the Court finds that the Agreement falls within the ambit of Article 101(1) TFEU, the Court should conclude that the Commission has not adequately examined the arguments and the evidence provided by the applicants to support the existence of efficiencies and the fulfilment by the Agreement of all the conditions of Article 101(3) TFEU.

4.Fourth plea in law, alleging that the fine imposed on the applicants should be annulled or, at least, significantly reduced. First, the decision breached the principles of legal certainty, non-retroactivity, and legitimate expectations by imposing a substantial fine on Teva. Second, the Commission erred in departing from its guidelines on the methodology of setting fines and violated the principles of legal certainty, legitimate expectation, proportionality, and equal treatment by imposing an excessive fine on Teva.

5.Fifth plea in law, alleging that the Commission committed significant procedural errors.