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Court of Justice delivers nine judgments in Servier ‘pay-for-delay’ case

28/06/24

On 27 June 2024 the Court of Justice handed down nine judgments, dismissing the appeals of Lupin, Niche Generics, Unichem Laboratories, Mylan, Teva and Biogaran and allowing the Commission’s appeals against the judgments of the General Court in Servier v Commission and Krka v Commission.

In 2014 the Commission found that Servier took various measures to delay generic entry into the market for the supply of its bestselling blood pressure medicine, perindopril. In particular, Servier concluded settlement agreements with Niche/Unichem, Matrix (now Mylan), Teva, Lupin and Krka, under which they would refrain from disputing the patent and from entering the perindopril market, in return for remuneration from Servier. The Commission found that those agreements constituted restrictions of competition and that Servier had implemented a strategy of market exclusion that constituted an abuse of a dominant position. It imposed fines of over €330 million on Servier and of around €97 million on the generic pharmaceutical companies.

In 2018 the General Court confirmed that the agreements concluded by Servier with Niche/Unichem, Matrix, Teva and Lupin constituted infringements, but annulled the Commission’s decision as regards both the agreements reached by Servier with Krka and Servier’s dominant position.

The Court of Justice confirmed the judgments of the General Court that the agreements between Servier and each of Niche/Unichem, Matrix, Teva and Lupin were unlawful.

The Court of Justice allowed the appeals brought by the Commission, concluding that the General Court made a number of errors of law in relation to both market definition and its assessment of the Krka agreement. The Court gave final judgment dismissing the actions at first instance of Servier and Krka in relation to two of their three agreements; the third has been referred back to the General Court.

The Court of Justice press release is here, which contains links to each judgment.

Mark Hoskins KC and Victoria Wakefield KC acted for Lupin, instructed by DLA Piper LLP.

Aidan Robertson KC acted for Niche Generics in Case C-164/19 P and Unichem Laboratories in Case C-166/19 P, instructed by Baker McKenzie LLP.

Prof David Bailey appeared for the European Commission, instructed by its Legal Service.