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In the latest instalment of competition litigation surrounding the issue of ‘Pay for Delay’, the Competition Appeals Tribunal has referred a series of appeals against a decision of the Competition and Markets Authority to the EU Court of Justice.
The CMA had fined GlaxoSmithKline – the patent holder of antidepressant drug, Paroxetine – and a number of generics companies over a series of settlement agreements. Those agreements settled litigation in which GSK alleged that the generics companies were threatening to enter the market in breach of its patents. The CMA considered that the agreements were anticompetitive and amounted to an abuse of dominance by GSK.
GSK and the generics companies appealed the CMA’s decision on a number of grounds. Whilst dismissing the appeals in part, the CAT referred central questions to the CJEU relating to what constitutes potential competition, infringements by object and effect, abuse of dominance, and what it describes as a ‘novel’ approach to market definition.
The CAT also recognised that existing cases before the CJEU raised many of the same issues as the present appeal.
The judgment can be found here.
Ronit Kreisberger appeared on behalf of Merck KGaA.
Jon Turner QC, Thomas Sebastian, and Elizabeth Kelsey appeared on behalf of the CMA.