IP case law Court of Justice

Competition law

17 preliminary rulings

Judgment of 30 Jan 2020, C-307/18 (Generics (UK) and Others)

Article 101(1) TFEU must be interpreted as meaning that a manufacturer of originator medicines who is the holder of a manufacturing process patent for an active ingredient that is in the public domain, on the one hand, and the manufacturers of generic medicines who are preparing to enter the market of the medicine containing that active ingredient, on the other, who are in dispute as to whether that patent is valid or whether the generic medicines concerned infringe that patent, are potential competitors, where it is established that the manufacturer of generic medicines has in fact a firm intention and an inherent ability to enter the market, and that its market entry does not meet barriers that are insurmountable, which it is for the referring court to assess.

Article 101(1) TFEU must be interpreted as meaning that a settlement agreement with respect to pending court proceedings between a manufacturer of originator medicines and a manufacturer of generic medicines, who are potential competitors, concerning whether a process patent (for the manufacture of an active ingredient of an originator medicine that is in the public domain) held by the manufacturer of originator medicines is valid and whether a generic version of that medicine infringes the patent, whereby that manufacturer of generic medicines undertakes not to enter the market of the medicine containing that active ingredient and not to pursue its action for the revocation of that patent for the duration of that agreement, in return for transfers of value in its favour by the manufacturer of originator medicines, constitutes an agreement which has as its object the prevention, restriction or distortion of competition:–   if it is clear from all the information available that the net gain from the transfers of value by the manufacturer of originator medicines in favour of the manufacturer of generic medicines can have no explanation other than the commercial interest of the parties to the agreement not to engage in competition on the merits;–   unless the settlement agreement concerned is accompanied by proven pro-competitive effects capable of giving rise to a reasonable doubt that it causes a sufficient degree of harm to competition.

Article 101(1) TFEU must be interpreted as meaning that if a settlement agreement, such as those at issue in the main proceedings, is to be demonstrated to have appreciable potential or real effects on competition, and, therefore, is to be characterised as a ‘restriction by effect’, that does not presuppose a finding that, in the absence of that agreement, either the manufacturer of generic medicines who is a party to that agreement would probably have been successful in the proceedings relating to the process patent at issue, or the parties to that agreement would probably have concluded a less restrictive settlement agreement.

Article 102 TFEU must be interpreted as meaning that, in a situation where a manufacturer of originator medicines containing an active ingredient which is in the public domain, but the process of manufacturing which is covered by a process patent, the validity of which is disputed, impedes, on the basis of that process patent, the market entry of generic versions of that medicine, there must be taken into consideration, for the purposes of definition of the product market concerned, not only the originator version of that medicine but also its generic versions, even if the latter would not be able to enter the market legally before the expiry of that process patent, if the manufacturers concerned of generic medicines are in a position to present themselves within a short period on the market concerned with sufficient strength to constitute a serious counterbalance to the manufacturer of originator medicines already on that market, which it is for the referring court to determine

Article 102 TFEU must be interpreted as meaning that the strategy of a dominant undertaking, the holder of a process patent for the production of an active ingredient that is in the public domain, which leads it to conclude, either as a precautionary measure or following the bringing of court proceedings challenging the validity of that patent, a set of settlement agreements which have, at the least, the effect of keeping temporarily outside the market potential competitors who manufacture generic medicines using that active ingredient, constitutes an abuse of a dominant position within the meaning of Article 102 TFEU, provided that that strategy has the capacity to restrict competition and, in particular, to have exclusionary effects, going beyond the specific anticompetitive effects of each of the settlement agreements that are part of that strategy, which it is for the referring court to determine.

Judgment of 14 Sep 2017, C-177/16 (AKKA/LAA)

1. Trade between Member States is capable of being affected by the level of rates set by a copyright management organisation that holds a monopoly and also manages the rights of foreign copyright holders, with the result that Article 102 TFEU may be applicable.

2. For the purposes of examining whether a copyright management organisation applies unfair prices within the meaning of point (a) of the second paragraph of Article 102 TFEU, it is appropriate to compare its rates with those applicable in neighbouring Member States as well as with those applicable in other Member States adjusted in accordance with the PPP index, provided that the reference Member States have been selected in accordance with objective, appropriate and verifiable criteria and that the comparisons are made on a consistent basis. It is permissible to compare the rates charged in one or several specific user segments if there are indications that the excessive nature of the fees affects those segments.

3. The difference between the rates compared must be regarded as appreciable if that difference is significant and persistent. Such a difference is indicative of abuse of a dominant position and it is for the copyright management organisation holding a dominant position to show that its prices are fair by reference to objective factors that have an impact on management expenses or the remuneration of rightholders.

4. In the case where the infringement referred to in point (a) of the second paragraph of Article 102 TFEU is established, remuneration intended for rightholders must be included, for the purpose of determining the amount of the fine, in the turnover of the copyright management organisation concerned, provided that that remuneration forms part of the value of the services provided by that organisation and that that inclusion is necessary in order to ensure that the penalty imposed is effective, proportionate and dissuasive. It is for the referring court to verify, in the light of all the circumstances of the case, whether those conditions are met.

Judgment of 13 Jul 2017, C-433/16 (Bayerische Motoren Werke)

The rule on jurisdiction set out in Article 5(3) of Regulation No 44/2001 does not apply to for a declaration of abuse of a dominant position and of unfair competition that are connected to actions for declaration of non-infringement, in so far as granting those applications presupposes that the action for a declaration of non-infringement is allowed.

Judgment of 7 Jul 2016, C-567/14 (Genentech)

Article 101(1) TFEU must be interpreted as not precluding the imposition on the licensee, under a licence agreement such as that at issue in the main proceedings, of a requirement to pay a royalty for the use of a patented technology for the entire period in which that agreement was in effect, in the event of the revocation or non-infringement of a licenced patent, provided that the licensee was able freely to terminate that agreement by giving reasonable notice.

Judgment of 16 Jul 2015, C-170/13 (Huawei)

Article 102 TFEU must be interpreted as meaning that the proprietor of a patent essential to a standard established by a standardisation body, which has given an irrevocable undertaking to that body to grant a licence to third parties on fair, reasonable and non-discriminatory (‘FRAND’) terms, does not abuse its dominant position, within the meaning of that article, by bringing an action for infringement seeking an injunction prohibiting the infringement of its patent or seeking the recall of products for the manufacture of which that patent has been used, as long as: – prior to bringing that action, the proprietor has, first, alerted the alleged infringer of the infringement complained about by designating that patent and specifying the way in which it has been infringed, and, secondly, after the alleged infringer has expressed its willingness to conclude a licensing agreement on FRAND terms, presented to that infringer a specific, written offer for a licence on such terms, specifying, in particular, the royalty and the way in which it is to be calculated, and –where the alleged infringer continues to use the patent in question, the alleged infringer has not diligently responded to that offer, in accordance with recognised commercial practices in the field and in good faith, this being a matter which must be established on the basis of objective factors and which implies, in particular, that there are no delaying tactics.

Article 102 TFEU must be interpreted as not prohibiting, in circumstances such as those in the main proceedings, an undertaking in a dominant position and holding a patent essential to a standard established by a standardisation body, which has given an undertaking to the standardisation body to grant licences for that patent on FRAND terms, from bringing an action for infringement against the alleged infringer of its patent and seeking the rendering of accounts in relation to past acts of use of that patent or an award of damages in respect of those acts of use.

Judgment of 27 Feb 2014, C-351/12 (OSA)

Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, and Articles 56 TFEU and 102 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single copyright collecting society and thereby prevents users of such works, such as the spa establishment in the main proceedings, from benefiting from the services provided by another collecting society established in another Member State. However, Article 102 TFEU must be interpreted as meaning that the imposition by that copyright collecting society of fees for its services which are appreciably higher than those charged in other Member States (a comparison of the fee levels having been made on a consistent basis) or the imposition of a price which is excessive in relation to the economic value of the service provided are indicative of an abuse of a dominant position.

Judgment of 11 Dec 2008, C-52/07 (Kanal 5)

Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works.

Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified.

Judgment of 13 Jul 1989, C-110/88 (Lucazeau)

Article 85 of the EEC Treaty must be interpreted as prohibiting any concerted practice by national copyright-management societies of the Member States having as its object or effect the refusal by each society to grant direct access to its repertoire to users established in another Member State . It is for the national courts to determine whether any concerted action by such management societies has in fact taken place.

Article 86 of the Treaty must be interpreted as meaning that a national copyright-management society holding a dominant position in a substantial part of the common market imposes unfair trading conditions where the royalties which it charges to discoth

Judgment of 13 Jul 1989, C-395/87 (Tournier)

Article 85 of the EEC Treaty must be interpreted as prohibiting any concerted practice by national copyright-management societies of the Member States having as its object or effect the refusal by each society to grant direct access to its repertoire to users established in another Member State . It is for the national courts to determine whether any concerted action by such management societies has in fact taken place .

The refusal by a national society for the management of copyright in musical works to grant the users of recorded music access only to the foreign repertoire represented by it does not have the object or effect of restricting competition in the common market unless access to a part of the protected repertoire could entirely safeguard the interests of the authors, composers and publishers of music without thereby increasing the costs of managing contracts and monitoring the use of protected musical works .

Article 86 of the Treaty must be interpreted as meaning that a national copyright-management society holding a dominant position in a substantial part of the Common Market imposes unfair trading conditions where the royalties which it charges to discoth

Judgment of 12 May 1989, C-320/87 (Ottung)

A contractual obligation under which the grantee of a licence for a patented invention is required to pay royalty for an indeterminate period, and thus after the expiry of the patent, does not in itself constitute a restriction of competition within the meaning of Article 85(1 ) of the Treaty where the agreement was entered into after the patent application was submitted and immediately before the grant of the patent .

A clause contained in a licensing agreement prohibiting the manufacture and marketing of the products after the termination of the agreement comes within the prohibition laid down in Article 85(1 ) only if it emerges from the economic and legal context in which the agreement was concluded that it is liable to appreciably affect trade between Member States.

Judgment of 5 Oct 1988, C-238/87 (Volvo)

The refusal by the proprietor of a registered design in respect of body panels to grant to third parties, even in return for reasonable royalties, a licence for the supply of parts incorporating the design cannot in itself be regarded as an abuse of a dominant position within the meaning of Article 86 .

Judgment of 27 Sep 1988, C-65/86 (Bayer / Suellhoefer)

A no-challenge clause in a patent licensing agreement may, depending on the legal and economic context, restrict competition within the meaning of Article 85 ( 1 ) of the EEC Treaty . Such a clause does not, however, restrict competition when the agreement in which it is contained granted a free licence and the licensee does not, therefore, suffer the competitive disadvantage involved in the payment of royalties or when the licence was granted subject to payment of royalties but relates to a technically outdated process which the undertaking accepting the no-challenge agreement did not use .

Judgment of 19 Apr 1988, C-27/87 (Erauw-Jacquery)

A PROVISION, OF AN AGREEMENT CONCERNING THE PROPAGATION AND SALE OF SEED, IN RESPECT OF WHICH ONE OF THE PARTIES IS THE HOLDER OF CERTAIN PLANT BREEDERS' RIGHTS, WHICH PROHIBITS THE GROWER FROM SELLING AND EXPORTING THE BASIC SEED, IS COMPATIBLE WITH ARTICLE 85 ( 1 ) OF THE TREATY IN SO FAR AS IT IS NECESSARY IN ORDER TO ENABLE THE BREEDER TO SELECT THE GROWERS WHO ARE TO BE LICENSEES .

A PROVISION IN AN AGREEMENT SUCH AS THAT DESCRIBED IN PARAGRAPH 1, WHICH OBLIGES THE GROWER TO COMPLY WITH MINIMUM PRICES FIXED BY THE OTHER PARTY FALLS WITHIN THE PROHIBITION SET OUT IN ARTICLE 85 ( 1 ) ONLY IF IT IS FOUND, HAVING REGARD TO THE ECONOMIC AND LEGAL CONTEXT OF THE AGREEMENT CONTAINING THE PROVISION IN QUESTION, THAT THE AGREEMENT IS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES TO AN APPRECIABLE DEGREE .

Judgment of 9 Apr 1987, C-402/85 (Basset)

THE PROHIBITIONS LAID DOWN IN ARTICLE 86 OF THE EEC TREATY, PROPERLY CONSTRUED, DO NOT APPLY TO THE CONDUCT OF A NATIONAL COPYRIGHT-MANAGEMENT SOCIETY SIMPLY BECAUSE IT CHARGES A ROYALTY CALLED A "SUPPLEMENTARY MECHANICAL REPRODUCTION FEE", IN ADDITION TO A PERFORMANCE ROYALTY, ON THE PUBLIC PERFORMANCE OF SOUND RECORDINGS, EVEN WHERE SUCH A SUPPLEMENTARY FEE IS NOT PROVIDED FOR IN THE MEMBER STATE WHERE THOSE SOUND RECORDINGS WERE LAWFULLY PLACED ON THE MARKET .

Judgment of 6 Oct 1982, C-262/81 (Coditel)

A CONTRACT WHEREBY THE OWNER OF THE COPYRIGHT FOR A FILM GRANTS AN EXCLUSIVE RIGHT TO EXHIBIT THAT FILM FOR A SPECIFIC PERIOD IN THE TERRITORY OF A MEMBER STATE IS NOT , AS SUCH , SUBJECT TO THE PROHIBITIONS CONTAINED IN ARTICLE 85 OF THE TREATY . IT IS , HOWEVER , WHERE APPROPRIATE , FOR THE NATIONAL COURT TO ASCERTAIN WHETHER , IN A GIVEN CASE , THE MANNER IN WHICH THE EXCLUSIVE RIGHT CONFERRED BY THAT CONTRACT IS EXERCISED IS SUBJECT TO A SITUATION IN THE ECONOMIC OR LEGAL SPHERE THE OBJECT OR EFFECT OF WHICH IS TO PREVENT OR RESTRICT THE DISTRIBUTION OF FILMS OR TO DISTORT COMPETITION ON THE CINEMATOGRAPHIC MARKET , REGARD BEING HAD TO THE SPECIFIC CHARACTERISTICS OF THAT MARKET .

Judgment of 25 Oct 1979, C-22/79 (Greenwich Film Production)

WHERE AN ASSOCIATION EXPLOITING COMPOSERS ' COPYRIGHTS IS TO BE REGARDED AS AN UNDERTAKING ABUSING A DOMINANT POSITION WITHIN THE COMMON MARKET OR IN A SUBSTANTIAL PART OF IT , THE FACT THAT SUCH ABUSE , IN CERTAIN CASES , RELATES ONLY TO THE PERFORMANCE IN NON-MEMBER COUNTRIES OF CONTRACTS ENTERED INTO IN THE TERRITORY OF A MEMBER STATE BY PARTIES WITHIN THE JURISDICTION OF THAT STATE DOES NOT PRECLUDE THE APPLICATION OF ARTICLE 86 OF THE TREATY

Judgment of 31 Oct 1974, C-15/74 (Centrafarm)

ARTICLE 85 IS NOT CONCERNED WITH AGREEMENTS OR CONCERTED PRACTICES BETWEEN UNDERTAKINGS BELONGING TO THE SAME CONCERN AND HAVING THE STATUS OF PARENT COMPANY AND SUBSIDIARY, IF THE UNDERTAKINGS FORM AN ECONOMIC UNIT WITHIN WHICH THE SUBSIDIARY HAS NO REAL FREEDOM TO DETERMINE ITS COURSE OF ACTION ON THE MARKET, AND IF THE AGREEMENTS OR PRACTICES ARE CONCERNED MERELY WITH THE INTERNAL ALLOCATION OF TASKS AS BETWEEN THE UNDERTAKINGS .


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