H. Lundbeck A/S (Lundbeck) has filed its appeal against the European Commission’s decision of 19 June 2013 with the General Court, with the aim of having the decision annulled and/or the fine of €93.8 million (approximately DKK 700 million) reduced.
Lundbeck strongly disagrees with the Commission’s decision, and considers that it contains several serious legal and factual errors, and several violations of Lundbeck’s right of defence. Through its appeal Lundbeck seeks a remedy to these serious problems.
“We remain appalled over the decision, which errs in a number of highly important aspects. Through our appeal we aim to have a thorough legal assessment of the case that sets legal precedent which is of the highest importance to us and all other innovative companies,” says Mette Carlstedt, Senior Vice President, Corporate Legal at Lundbeck.
The errors in the Commission’s decision include misinterpreting the main criterion to determine whether an agreement restricts potential competition as established in case law and ignores key facts of the case. The decision also contains manifest errors regarding its assessment of value transfers in the context of patent settlement agreements.
Furthermore the Commission errs in law by imposing a fine on Lundbeck despite the novelty of the factual and legal issues raised in this case. The fine violates the principle of legal certainty.
Finally the decision infringes Lundbeck’s rights of defence, because the Commission has changed the constituent elements of the alleged infringement between the Statement of Objections and the decision, without affording Lundbeck an opportunity of being heard on that change before the decision was taken.
Lundbeck expects a decision on the appeal within two to three years. A judgement could be appealed to the European Court of Justice, either by Lundbeck or the Commission, and it could be up to six years before a final ruling in the case is reached. Regardless of its appeal, Lundbeck is still obligated to pay the fine and will do so during Q3 2013.
