Court of Justice of the EU upholds EU Commission Decisions in Servier “Pay for Delay” appeals

28 Jun 2024

On 27 June, the Court of Justice of the EU published its judgments on the various appeals to the Court of Justice relating to the European Commission’s 2014 decision finding that Servier and a number of producers of generic medicines had infringed Article 101(1) of the Treaty on the Functioning of the EU by entering into agreements concerning perindopril, an important treatment for hypertension and heart problems.  The Commission imposed significant fines.

Under the agreements, the generic producers abandoned their challenges to the validity of various patents held by Servier in relation to the manufacture of perindopril and agreed not to supply generic versions of perindopril for a period.  In return, Servier made substantial payments to those producers and entered into various distribution agreements with those producers under which they would distribute Servier-produced perindopril.

In 2019, the General Court of the EU largely dismissed the companies’ appeals, though it overturned the Commission’s finding that Servier had also breached Article 102 TFEU (abuse of dominant position), and found that two of the agreements involving Krka were not infringements.

The Court of Justice judgments confirm that the agreements were unlawful market exclusion agreements that restricted competition.  It also overturned the General Court’s decision to annul the Commission’s finding that Servier had infringed Article 102, and its decision in relation to the two Krka agreements, remitting that matter to the General Court.

George Peretz KC and Ben Rayment acted for the European Commission on, respectively, the Teva and Lupin appeals, and Josh Holmes KC and Philip Woolfe KC acted for the UK government, which intervened in the appeals in support of the Commission (the UK still being a Member State at the time that the appeal was brought).