Appeal brought on 18 December 2006 by Commission of the European Communities against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) delivered on 27 September 2006 in Case T-168/01: GlaxoSmithKline Services Unlimited, formerly Glaxo Wellcome plc v Commission of the European Communities

(Case C-513/06 P)

(2007/C 42/22)

Language of the case: English

Parties

Appellant: Commission of the European Communities (represented by: T. Christoforou, F. Castillo de la Torre et E. Gippini Fournier, Agents)

Other parties to the proceedings: European Association of Euro Pharmaceutical Companies (EAEPC), Bundesverband der Arzneimittel-Importeure eV, Spain Pharma, SA, Asociación de exportadores españoles de productos farmacéuticos (Aseprofar), GlaxoSmithKline Services Unlimited, anciennement Glaxo Wellcome plc

Form of order sought

The applicant claims that the Court should:

Pleas in law and main arguments

The Commission agrees with the conclusions of the Court of First Instance concerning the reasoning of the contested decision; the existence of an agreement between undertakings; the alleged misuse of powers and the alleged infringement of the principle of subsidiary and of Article 43 EC.

Concerning the part of the judgment dealing with existence of an anticompetitive ‘effect’ the Commission contests the reasoning followed by the Court of First Instance. It maintains that the Court's analysis confirming the existence of the restrictive ‘effects’ constitutes in reality an analysis of the restrictive ‘object’ of the agreement having due regard to the legal and economic context, and should have led the Court to confirm the Decision's finding that the agreement had an anticompetitive object. Concerning the other findings about ‘effects’, the Commission has serious objections in particular regarding: the definition of the relevant market; the dismissal of the Commission's findings under Article 81(1)(d) with the legally erroneous argument that the different prices were charged on different geographic markets; and a number of other findings made in the in the judgment where the Court substitutes its own assessment of the factual and economic evidence for that of the Commission, an exercise that is not permissible in judicial review. However, given that the Commission shares the ultimate conclusions reached by the Court, i.e that the agreement in question produced anticompetitive effects, it does not intend at this stage to raise grounds of appeal against this part of the judgment.

The present appeal raises two series of pleas. The first series relates to the findings concerning Article 81(1), and in particular the errors of law and distortions in the interpretation and application of the notion of ‘object’ in the provision, as well as the many distortions, errors of law, and inadequacies or contradictions in the reasoning in relation with ‘legal and economic context’ of the agreement. The second series of pleas relates to the findings under Article 81(3): first and foremost those relating to the first condition contemplated in this provision, but also the lack of examination of several other conditions.