Court of Justice (Fourth Chamber) 25 March 2021, C-591/16 P (H. Lundbeck A/S and Lundbeck Ltd v European Commission.)

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The Court of Justice (Fourth Chamber) dismissed the appeal by H. Lundbeck A/S and Lundbeck Ltd against the General Court's judgment upholding the European Commission's finding that six patent settlement agreements between Lundbeck and manufacturers of generic medicines constituted restrictions of competition 'by object' (restriction par objet) under Article 101 TFEU, on the basis that the reverse payments made by Lundbeck to the generic manufacturers could have no explanation other than the commercial interest of both parties in avoiding competition on the merits. The Court confirmed that the existence of process patents held by a manufacturer of originator medicines does not constitute an insurmountable barrier to potential competition and does not preclude characterisation of such settlement agreements as anticompetitive, since a patent does not permit its holder to enter into contracts contrary to Article 101 TFEU. The Court further held that the Commission's calculation of fines based on Lundbeck's EEA-wide sales of citalopram was lawful, as all such sales were made on markets where the generic manufacturers were at least potential competitors for the entire duration of the agreements.AI