Action brought on 25 August 2005 — AstraZeneca/Commission

(Case T-321/05)

(2005/C 271/47)

Language of the case: English

Parties

Applicant(s): AstraZeneca AB (Sodertalje, Sweden) and AstraZeneca plc (London, United Kingdom) [represented by: M. Brealey, QC, M. Hoskins, barrister, F. Murphy, solicitor]

Defendant(s): Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By the contested Decision the Commission fined both applicants EUR 46 000 000 and fined the first applicant a further EUR 14 000 000 for infringements of Article 82 EC and Article 54 of the Agreement on the European Economic Area. The Commission found that, beginning in 1993, the applicants engaged in a pattern of deliberate misrepresentation to patent attorneys, national courts and patent offices in order to obtain supplementary protection certificates to which they knew they were not entitled to for their patented product ‘omeprazole’, the active substance in the applicants' ‘Losec’ medicinal product. It also found that in 1998/1999 the applicants operated a strategy of selectively withdrawing their ‘Losec’ capsules, replacing them with ‘Losec’ tablets, and requesting the deregistration of the marketing authorisation for the capsules in Denmark, Norway and Sweden. The Decision considers that both infringements were committed with the intention of unfairly restricting competition from generics and parallel imports.

The applicants challenge the Commission's Decision on several levels. They allege first of all that the Commission mistakenly defined the relevant market as being only that of proton pump inhibitors, used for the treatment of gastrointestinal acid related diseases, and excluded histamine receptor antagonists from the relevant market. This finding also influences the Commission's finding on dominance, since, according to the applicants, the contested Decision does not consider whether the applicants would still be in a dominant position if histamine receptor antagonists were included in the relevant market.

The applicants further challenge the Commission's findings of infringements both on legal and factual grounds. Regarding the alleged misrepresentations with respect to patents, the applicants consider that such misleading representations made in the course of applications for intellectual property rights cannot in law amount to an abuse unless and until the dishonestly obtained rights are enforced or are capable of being enforced. They also consider that Article 82 EC, properly interpreted, did not impose on them an obligation to maintain a marketing authorisation for a product they no longer marketed, merely because it would make it easier for generics and parallel traders to compete with it.

The applicants also challenge the Commission's findings of facts on both infringements. They submit that the Commission failed to adduce evidence proving to the correct legal standard the alleged abuse of intellectual property rights and that, furthermore, there was no strategy for selectively changing from ‘Losec’ capsules to tablets or selectively withdrawing marketing authorisations for the capsules.