Case C‑567/14

Genentech Inc.

v

Hoechst GmbH

and

Sanofi-Aventis Deutschland GmbH

(Request for a preliminary ruling from the cour d’appel de Paris)

‛Reference for a preliminary ruling — Competition — Article 101 TFEU — Non-exclusive licence agreement — Patent — No infringement — Obligation to pay royalties’

Summary — Judgment of the Court (First Chamber), 7 July 2016

1. Questions referred for a preliminary ruling — Reference to the Court — Conformity of the order for reference with the rules of judicial organisation and procedure in domestic law — Not a matter for the Court to determine

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Necessity of a question referred and relevance of the questions raised — Assessment by the national court

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Examination of the facts found by an arbitrator in arbitration proceedings and the interpretation of a licensing agreement by the arbitrator — Not permissible

   (Art. 267 TFEU)

4. Agreements, decisions and concerted practices — Adverse effect on competition — Patent licensing agreement — Obligation to pay a royalty for the use of patented technology in the event of annulment or non-infringement of the patent — Right to terminate that agreement freely upon reasonable notice — Lawfulness — Absence of any adverse effect on competition

   (Art. 101(1) TFEU)

1.  See the text of the decision.

   (see paras 22, 23)

2.  See the text of the decision.

   (see para. 26)

3.  It is not for the Court, in the context of the preliminary ruling procedure, to review, in arbitration proceedings, the findings of the sole arbitrator or his interpretation of the licence agreement carried out in the light of the applicable national law.

   (see para. 38)

4.  Article 101(1) TFEU must be interpreted as not precluding the imposition on the licensee, under a licence agreement, of a requirement to pay a royalty for the use of a patented technology for the entire period in which that agreement was in effect, in the event of the revocation or non-infringement of a licenced patent, provided that the licensee was able freely to terminate that agreement by giving reasonable notice.

   If, during the period in which a licence agreement is in effect, the payment of the royalty is still due even after the expiration of industrial property rights, the same applies, a fortiori, before the validity of those rights has expired. The fact that the courts of the State issuing the patents have held, following the termination of the licence agreement, that the applicant’s use of the licensed technology does not infringe the rights derived from those patents has no effect on the enforceability of the royalty for the period prior to that termination. Since the licensee was free to terminate the agreement at any time, that obligation does not constitute a restriction of competition within the meaning of Article 101(1) TFEU.

   (see paras 41-43, operative part)