In cases C 591/16 P, C 586/16 P, C 588/16 P, C 601/16 P, C 611/16 P and C 614/16 P, the Court of Justice of the European Union ("CJEU") assessed whether settlement agreements entered into between H. Lundbeck A/S and Lundbeck Ltd ("Lundbeck") and several manufacturers of medicines seeking to delay marketing of the generic antidepressant "citalopram", were governed by EU competition rules. Lundbeck and the manufacturers claimed that the EU Commission's decisions under EU Treaty Article 101 to impose fines against Lundbeck and the manufacturers were invalid.
Since late 1970s, Lundbeck has developed and patented an antidepressant medicine. As Lundbeck obtained patents and subsequent secondary patents for the active substance "citalopram", manufacturers of the generic versions of citalopram were prevented from entering the market. In 2002, Lundbeck entered into settlement agreements with parties active in the production or sale of generic medicines, requiring these counterparties not to enter the citalopram market in return for significant payments and purchase of stocks of generic products.
Investigations by the European Commission discovered that the amounts paid by Lundbeck approximately corresponded with the profits the counterparties could have obtained by successfully entering the market. As a result, the Commission concluded that the "pay for delay" settlement agreements restricted the competition by object and infringed the EU Treaty Article 101. Lundbeck was fined EUR 93.7 million and the manufacturers were fined a total of EUR 52.2 million.
The CJEU stated that to establish Lundbeck and these counterparties as potential competitors, mere "existence of coordination" is not sufficient. The coordination must have "a negative and appreciable effect on competition within the internal market". The CJEU found that Lundbeck and these counterparties were potential competitors, and that the settlement agreements violated EU competition law and were thus invalid. Consequently, the CJEU dissed all the appeals.