EU General Court 2010 - Astrazeneca decision

• The EU General Court: “Article 82 EC prohibits a dominant undertaking from eliminating a competitor and thereby strengthening its position by using methods other than those which come within the scope of competition on the merits”
• A key conclusion: “the Commission applied Article 82 EC correctly in taking the view that the submission to the patent offices of objectively misleading representations by an undertaking in a dominant position which are of such a nature as to lead those offices to grant it SPCs to which it is not entitled or to which it is entitled for a shorter period, thus resulting in a restriction or elimination of competition, constituted an abuse of that position. ”
• The Courts initial reasoning: “the Court observes that the submission to the public authorities of misleading information liable to lead them into error and therefore to make possible the grant of an exclusive right {a supplementary protection certificate, in this case},  to which an undertaking is not entitled, or to which it is entitled for a shorter period, constitutes a practice falling outside the scope of competition on the merits which may be particularly restrictive of competition”
• On the general principle: “in so far as an undertaking in a dominant position is granted an unlawful exclusive right as a result of an error by it in a communication with public authorities, its special responsibility not to impair, by methods falling outside the scope of competition on the merits, genuine undistorted competition in the common market requires it, at the very least, to inform the public authorities of this so as enable them to rectify those irregularities”
• “The Court rejects the applicants’ argument that a finding of an abuse of a dominant position requires that an exclusive right obtained as a result of misleading representations has been enforced. When granted by a public authority, an intellectual property right is normally assumed to be valid and an undertaking’s ownership of that right is assumed to be lawful. The mere possession by an undertaking of an exclusive right normally results in keeping competitors away, since public regulations require them to respect that exclusive right. Furthermore, to the extent that the applicants argue that an intellectual property right must have been exercised in legal proceedings, that argument would tend to make the application of Article 82 EC conditional on the contravention by competitors of the public regulations by their infringing the exclusive right of an undertaking; that argument must be rejected.”
• The CJEU dismissed the appeal. The fine set by the General Court was about EUR 50 million. This fine was for the finding that the parties “have infringed Article 82 of the Treaty and Article 54 of the EEA Agreement by the pattern of misleading representations before patent offices in Belgium, Denmark, Germany, the Netherlands, Norway and the United Kingdom and before national courts in Germany and Norway”. 
• Edits with {...} are made by me.

Addendum 05.10.2021

Para 493 of T-321/05: “The Court therefore finds that, in view of the context in which those representations to the patent attorneys and patent offices were made, AZ could not reasonably be unaware that, in the absence of an express disclosure of the interpretation that it intended to adopt of Regulation No 1768/92 which underlay the choice of the dates provided in relation to France and Luxembourg, the patent offices would be prompted to construe those representations as indicating that the first technical marketing authorisation in the Community had been issued in Luxembourg in ‘March 1988’. Thus, there was no need for the Commission to demonstrate AZ’s bad faith or positively fraudulent intent on its part, it being sufficient to note that such conduct, characterised by a manifest lack of transparency, is contrary to the special responsibility of an undertaking in a dominant position not to impair by its conduct genuine undistorted competition in the common market (see, to that effect, Nederlandsche Banden-Industrie-Michelin v Commission, paragraph 30 above, paragraph 57).”Para. 494: “Accordingly, the dispute between the parties on the issue whether the misleading nature of the SPC applications stemmed from AZ’s bad faith is irrelevant. In any event, the applicants’ multiple arguments based on the alleged absence of bad faith on the part of AZ, as regards both the interpretation that it chose to adopt of Regulation No 1768/92 and the manner in which the SPC applications were presented, or the significance that it attached to the Luxembourg list, cannot constitute objective justification for the absence of proactive disclosure of the nature of the dates mentioned in relation to the Luxembourg and French marketing authorisations, on the one hand, and of the interpretation of Regulation No 1768/92 which led to the choice of those dates, on the other.”

See also this post, of a relevant law firm: “It was held to be sufficient that the conduct of AstraZeneca [towards the patent offices] was characterised by a "lack of transparency" or absence of "proactive disclosure" and was thereby contrary to the "special responsibility" of an undertaking in a dominant position "not to impair by its conduct genuine undistorted competition in the market".”

 https://www.brickcourt.co.uk/news/detail/case-t-321-05-astrazeneca-v-commission-ground-breaking-abuse-of-dominance-judgment : 

Case T‑321/05 AstraZeneca v. Commission [2010] ECLI:EU:T:2010:266 https://e-justice.europa.eu/ecli/ECLI:EU:T:2010:266
Case C-457/10 P AstraZeneca v. Commission [2012] ECLI:EU:C:2012:770 https://e-justice.europa.eu/ecli/ECLI:EU:C:2012:770
https://ec.europa.eu/competition/antitrust/cases/dec_docs/37507/37507_193_6.pdf published 19.07.2006