6The background to the dispute was set out in paragraphs 1 to 75 of the judgment under appeal as follows:‘I – The companies involved in the present case1. H. Lundbeck A/S … is a company governed by Danish law which controls a group of companies, including Lundbeck Ltd, established in the United Kingdom, specialising in the research, development, manufacture, marketing, sale and distribution of pharmaceuticals for the treatment of disorders in the central nervous system, including depression.2. [H. Lundbeck] is an “originator” undertaking, namely an undertaking whose activities are focused on researching new medicinal products and bringing them to the market.3. Merck KGaA (“Merck”) is a company governed by German law specialising in the pharmaceutical sector which, at the time the agreements concerned were concluded, indirectly held 100% – through the group Merck Generics Holding GmbH (“Merck Generics”) – of its subsidiary Generics UK Limited (“GUK”), a company responsible for the development and marketing of generic pharmaceutical products in the United Kingdom.4. The Commission regarded Merck and GUK as constituting a single undertaking for the purpose of competition law at the time of the infringements (“Merck (GUK)”).5. Arrow Group A/S, which was renamed Arrow Group ApS in August 2003 (hereinafter referred to without distinction as “Arrow Group”), is a company governed by Danish law at the head of a group of companies, present in several Member States, which since 2001 has been active in the development and sales of generic medicinal products.6. Arrow Generics Ltd is a company incorporated in the United Kingdom, a subsidiary owned at first as to 100% and then, from February 2002, as to 76% by Arrow Group.7. Resolution Chemicals Ltd is a company incorporated in the United Kingdom specialising in the production of active pharmaceutical ingredients (“APIs”) for generic medicinal products. Until September 2009 it was controlled by Arrow Group.8. The Commission regarded Arrow Group, Arrow Generics Ltd and Resolution Chemicals Ltd as constituting a single undertaking (“Arrow”) at the time of the infringements.9. Alpharma Inc. was a company incorporated in the United States of America active in the pharmaceutical sector on a worldwide scale, in particular in generic medicinal products. Until December 2008 it was controlled by A.L. Industrier AS, a company governed by Norwegian law. It was subsequently bought by a United Kingdom pharmaceutical undertaking, which, in turn, was bought by a United States pharmaceutical undertaking. In the context of those restructurings, Alpharma Inc. became, first of all, in April 2010, Alpharma LLC, and then, on 15 April 2013, Zoetis Products LLC.10. Alpharma ApS was a company governed by Danish law indirectly controlled as to 100% by Alpharma Inc. It had a number of subsidiaries in the [EEA]. Following a number of company restructurings, on 31 March 2008 Alpharma ApS became Axellia Pharmaceuticals ApS, renamed Xellia Pharmaceuticals ApS … in 2010.11. The Commission regarded Alpharma Inc., A.L. Industrier AS and Alpharma ApS as constituting a single undertaking (“Alpharma”) at the time of the infringements.12. Ranbaxy Laboratories Ltd is a company governed by Indian law specialising in the development and production of APIs and generic medicinal products.13. Ranbaxy (UK) Ltd is a company governed by English law and a subsidiary of Ranbaxy Laboratories and is responsible for the sale of the latter’s products in the United Kingdom.14. The Commission regarded Ranbaxy Laboratories Ltd and Ranbaxy (UK) Ltd as constituting a single undertaking (“Ranbaxy”) at the time of the infringements.II – The relevant product and the applicable patents15. The relevant product for the purposes of the present case is the antidepressant medicinal product containing the API known as citalopram.16. In 1977, [H. Lundbeck] filed a patent application in Denmark for the citalopram API and two processes – a cyanation process and an alkylation process – to produce that API. Patents for that API and those two processes ([“Lundbeck’s original patents”]) were issued in Denmark and in a number of Western European countries between 1977 and 1985.17. As regards the [EEA], the protection afforded by [Lundbeck’s] original patents and, where appropriate, the supplementary protection certificates … provided for in Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products (OJ 1992 L 182, p. 1), expired between 1994 (as regards Germany) and 2003 (as regards Austria). In particular, in the case of the United Kingdom, [Lundbeck’s] original patents expired in January 2002.18. Over time, [H. Lundbeck] developed other, more effective, processes for the production of citalopram, in respect of which it applied for and often obtained patents in several EEA countries and also from the World Intellectual Property Organisation (WIPO) and the European Patent Office (EPO) [(“Lundbeck’s new process patents”)].19. In particular, first, in 1998 and in 1999 [H. Lundbeck] applied to the EPO for two patents relating to the production of citalopram by processes using iodo and amide, respectively. The EPO granted [H. Lundbeck] a patent protecting the process using amide … on 19 September 2001 and a patent protecting the process using the iodo … on 26 March 2003.20. Secondly, on 13 March 2000 [H. Lundbeck] filed a patent application with the Danish authorities relating to a process for the production of citalopram which envisaged a method of purification of the salts used by means of crystallisation. Similar applications were filed in other EEA countries and also with the WIPO and the EPO. [H. Lundbeck] obtained patents protecting the crystallisation process in a number of Member States during the first half of 2002: 30 January 2002 in the case of the United Kingdom (“the crystallisation patent”). The EPO granted a crystallisation patent on 4 September 2002. In addition, in the Netherlands, [H. Lundbeck] had already obtained, on 6 November 2000, a utility model for that process …, that is to say, a patent valid for six years, granted without a genuine prior examination.21. Thirdly, on 12 March 2001, [H. Lundbeck] filed a patent application with the United Kingdom authorities for a citalopram production process using a salt purification method by film distillation. The [authorities of the United Kingdom of Great Britain and Northern Ireland] granted [H. Lundbeck] a patent for that film distillation method on 3 October 2001 (“the film distillation patent”). However, that patent was revoked on 23 June 2004 for lack of novelty by comparison with another [H. Lundbeck] patent. [H. Lundbeck] obtained a similar patent in Denmark on 29 June 2002.22. Lastly, [H. Lundbeck] planned to launch a new antidepressant medicinal product, Cipralex, based on the API known as escitalopram (or S-citalopram), by the end of 2002 or the beginning of 2003. That new medicinal product was designed for the same patients as those who could be treated by [H. Lundbeck’s] patented medicinal product Cipramil, based on the citalopram API. The escitalopram API was protected by patents valid until at least 2012.III – The agreements at issue23. In 2002, [H. Lundbeck] entered into six agreements concerning citalopram (“the agreements at issue”) with four undertakings active in the production and/or sale of generic medicinal products, namely Merck (GUK), Alpharma, Arrow and Ranbaxy (“the [manufacturers of generic medicinal products]”).A – The agreements with Merck (GUK)24. [H. Lundbeck] entered into two agreements with Merck (GUK).25. The first agreement came into effect on 24 January 2002 for a period of one year, and covered only the territory of the United Kingdom (“the GUK United Kingdom agreement”). It was signed by [H. Lundbeck’s subsidiary], Lundbeck Ltd, a company incorporated in the United Kingdom. That agreement was subsequently extended for a period of six months, ending on 31 July 2003. [After] Merck (GUK) briefly entered the market between 1 and 4 August, a second extension of the agreement was signed by the parties on 6 August 2003, for a maximum period of six months, which could be reduced if [H. Lundbeck] failed to initiate legal proceedings against other [manufacturers of generic medicinal products] which attempted to enter the market or on determination of the litigation between [H. Lundbeck] and Lagap Pharmaceuticals Ltd, another [manufacturer of generic medicinal products] (“the Lagap litigation”).26 Under that agreement, the parties agreed, in particular, that:– there was a risk that certain actions envisaged by GUK in respect of the marketing, distribution and sale of the “Products” might constitute an infringement of [H. Lundbeck’s] intellectual property rights and could give rise to claims on the part of [H. Lundbeck] (Article 2.1 of the GUK United Kingdom agreement), the “Products” being defined in Article 1.1 of the GUK United Kingdom agreement as “the citalopram products developed by GUK in raw material, bulk product and finished pack form as set out in the Schedule and manufactured in accordance with the specification for Products as supplied by GUK at the date of signature. Attached to Schedule 2”;– in view of the agreement between the parties, [H. Lundbeck] would pay GUK the sum of 2 million pounds sterling (GBP), in consideration for the delivery of the “Products”, in the quantities set out in the agreement, on 31 January 2002 (Article 2.2 of the GUK United Kingdom agreement);– GUK also undertook, in consideration of a further payment of GBP 1 million, to deliver the “Products”, as specified in the [Schedule], on 2 April 2002 (Article 2.3 of the GUK United Kingdom agreement);– the payments made and the delivery of the “Products” by GUK pursuant to Articles 2.2 and 2.3 of the GUK United Kingdom [agreement] would constitute full and final settlement of any claim that [H. Lundbeck] might have against GUK for infringement of its intellectual property rights in connection with the “Products” delivered by GUK up to that date (Article 2.4 of the UK agreement);– [H. Lundbeck] undertook to sell its “Finished Products” to GUK and GUK undertook to purchase those “Finished Products” exclusively from [H. Lundbeck] for resale by GUK and its affiliates in the United Kingdom during the term and subject to the conditions of the agreement (Article 3.2 of the GUK United Kingdom agreement), those “Finished Products” being defined in paragraph 1.1 of the agreement as “products containing citalopram in finished pack form to be supplied by [H. Lundbeck] to GUK pursuant to this Agreement”;– [H. Lundbeck] undertook to pay GBP 5 million of guaranteed net profits to GUK, on condition that GUK ordered the agreed volume of “Finished Products” during the term of the agreement (or a lesser amount to be calculated pro rata to the volume ordered) (Article 6.2 of the GUK United Kingdom agreement).27. The first extension of the GUK United Kingdom agreement provided, in particular, for monthly payments of the sum of GBP 400000 per month for the implementation of Article 6.2 of the agreement by GUK and amended the definition of “net profits”.28. The second extension of the GUK United Kingdom agreement provided, in particular, for monthly payments of the sum of GBP 750000 per month for the implementation of Article 6.2 of the agreement by GUK.29. The GUK United Kingdom agreement expired on 1 November 2003, following the settlement of the Lagap litigation. In total, over the entire term of the agreement, [H. Lundbeck] transferred the equivalent of EUR 19.4 million to GUK.30. A second agreement was concluded between [H. Lundbeck] and GUK on 22 October 2002, covering the EEA excluding the United Kingdom (“the GUK EEA agreement”). That agreement provided for payment of the sum of EUR 12 million, in consideration whereof GUK undertook not to sell or supply pharmaceutical products containing citalopram throughout the EEA (excluding the United Kingdom) and to use all reasonable efforts to ensure that Natco Pharma Ltd … – the manufacturer of the citalopram API used by Merck (GUK) to market its version of generic citalopram … – ceased to supply citalopram and products containing Citalopram in the EEA during the term of the agreement (Articles 1.1 and 1.2 of the GUK EEA agreement). [H. Lundbeck] undertook not to bring legal proceedings against GUK, on condition that GUK complied with its obligations under Article 1.1 of the GUK EEA agreement (Article 1.3 of the GUK EEA agreement).31. The GUK EEA agreement expired on 22 October 2003. In total, [H. Lundbeck] transferred the equivalent of EUR 12 million to GUK under that agreement.B – The agreements with Arrow32. [H. Lundbeck] signed two agreements with Arrow.33. The first of those agreements, relating to the territory of the United Kingdom, was concluded on 24 January 2002 between, on the one hand, [H. Lundbeck] and, on the other, Arrow Generics and Resolution Chemicals (together “Arrow UK”) (“the Arrow UK agreement”).34. The initial term of the Arrow UK agreement was until 31 December 2002 or, if it had been earlier, until the date on which a definitive decision had been delivered in the action which [H. Lundbeck] intended to bring against Arrow UK before the United Kingdom courts concerning Arrow UK’s alleged infringement of its patents (“the infringement action against Arrow”) (Article 4.1 of the Arrow UK agreement). That agreement was extended, on two occasions, by the signing of addenda. The first extension covered the period from 1 January until 1 March 2003 (Article 3.1 of the first addendum to the Arrow UK agreement), while the second extension provided that the agreement was to end either on 31 January 2004 or seven days after signature of the court decision determining the Lagap litigation (Article 4.1 of the second addendum to the Arrow UK agreement). As that litigation was settled on 13 October 2003, the Arrow UK agreement ended on 20 October 2003. It follows that the overall duration of that agreement was from 24 January 2002 until 20 October 2003 (“the term of the Arrow UK agreement”).35. As regards the content of the Arrow United Kingdom agreement, it should be observed that:– the first recital in the preamble to that agreement (“the Arrow UK preamble”) refers, inter alia, to the fact that [H. Lundbeck] is the holder of the crystallisation [patent] and film distillation [patent];– the fourth recital in the Arrow UK preamble states that “… Arrow [UK] has obtained a licence from a third party to import into the [United Kingdom] Citalopram not manufactured by [H. Lundbeck] or with the consent of [H. Lundbeck] (‘the said Citalopram’, which definition shall for the avoidance of doubt comprise only citalopram for marketing and sale in the [United Kingdom] and shall exclude Citalopram for marketing and sale in other countries)”;– the sixth recital in the Arrow UK preamble states that [H. Lundbeck] performed a laboratory analysis of “the said Citalopram” which gave it substantial reason to believe that that citalopram infringed, in particular, the patents referred to in the first indent above;– the seventh recital in the Arrow UK preamble states that Arrow UK does not consider that it has infringed those patents or that they are valid, but accepts that [H. Lundbeck] believes that they may be valid and have been infringed, which Arrow UK is unable to disprove by incontrovertible evidence;– the eighth recital in the preamble to that agreement observes that [H. Lundbeck] has threatened to seek an interim injunction and that it intends to bring infringement proceedings against Arrow;– Article 1.1 of that agreement provides that “Arrow [UK] on its own behalf and on behalf of all associated and related entities undertakes during the [term of the Arrow UK agreement] not in the United Kingdom to make, dispose of, offer to dispose of, use or, after the second delivery date, import or keep for disposal or otherwise (1) the said Citalopram or (2) any other Citalopram which [H. Lundbeck] alleges to infringe its [intellectual property] Rights and, to enable [H. Lundbeck] to ascertain if there may be an infringement, during the [term of the Arrow UK agreement] to provide [H. Lundbeck] with sufficient samples for analysis purposes at least one month prior to any threatened manufacture, importation, sale or offer for sale pending a final unappealable decision in [the infringement action against Arrow] …”;– Article 1.2 of that agreement states that Arrow UK has agreed that the undertakings given by it and referred to in Article 1.1 of the Arrow UK agreement may be incorporated in an order that [H. Lundbeck] might ask the competent United Kingdom court to make;– Article 2.1 of that agreement states that [H. Lundbeck] will commence the infringement action against Arrow as soon as possible and in any event no later than 31 March 2002;– Article 2.2 of that agreement states that, in consideration of the undertakings in Article 1.1 of the Arrow UK agreement and Arrow not seeking a “cross-undertaking in damages” (i.e. the amount which, in accordance with the laws of England and Wales, [H. Lundbeck] would have had to deposit with the Court if it intended to seek an injunction in the infringement action against Arrow), [H. Lundbeck] is to pay Arrow UK GBP 5 million, in four instalments, that sum having subsequently been increased by GBP 450000 under Article 2.1 of the first addendum to the Arrow UK agreement, and by GBP 1.35 million in application of Articles 2.1 and 3 of the second addendum to the Arrow UK agreement;– Article 2.3 of that agreement establishes that, in the event that the final decision in the infringement action against Arrow should find that Arrow UK had not infringed [H. Lundbeck’s] intellectual property rights, the amount specified in Article 2.2 of that agreement would constitute the full and final compensation that Arrow UK could obtain from [H. Lundbeck] for loss sustained as a result of the obligations arising under Article 1.1 of the Arrow UK agreement;– Article 3.4 of the agreement provides that Arrow UK is to deliver to [H. Lundbeck] its stock “of said Citalopram” in two stages, the first of which, covering approximately 3975 million packed tablets, by no later than 6 February 2002 and the second, covering around 1.1 million bulk tablets, by no later than 15 February 2002.36. It should be observed, moreover, that on 6 February 2002 [H. Lundbeck] obtained the order referred to in Article 1.2 of the Arrow UK agreement …37. The second agreement, concerning Denmark, was concluded on 3 June 2002 between [H. Lundbeck] and Arrow Group (“the Arrow Danish agreement”).38. The Arrow Danish agreement was intended to run from the date of signature, 3 June 2002, until 1 April 2003 or until such earlier date of a definitive decision in the infringement action against Arrow. As no such decision was delivered, the agreement was in force from 3 June 2002 until 1 April 2003 …39. As regards the content of the Arrow Danish agreement, it should be observed that:– the first, third and fifth to ninth recitals in the preamble thereto correspond, in essence, to the first, fourth and sixth to eighth recitals in the Arrow UK preamble, it being noted that the ninth recital in the Arrow Danish preamble refers to the [order referred to in Article 1.2 of the Arrow UK agreement];– Article 1.1 of that agreement provides that “Arrow [Group] consents to cancel, cease and desist from any importation, manufacture, production, sale or other marketing of products containing Citalopram which [H. Lundbeck] alleges to infringe its intellectual property rights in the [Danish] territory for the term of [the Arrow Danish agreement]”;– Article 2.1 of that agreement states that, as compensation for the undertakings given by Arrow Group, [H. Lundbeck] is to pay Arrow Group the sum of 500000 United States dollars (USD);– Article 2.2 of that agreement establishes that, in the event that the final decision in the infringement proceedings against Arrow should find that Arrow Group had not infringed [H. Lundbeck’s] intellectual property rights, the amount specified in Article 2.1 of that agreement would constitute the full and final compensation that Arrow Group could obtain from [H. Lundbeck] for loss sustained as a result of the obligations arising under Article 1.1 of the Arrow Danish agreement;– Article 3.1 of that agreement adds that [H. Lundbeck] is to purchase Arrow Group’s stock of citalopram, consisting of approximately 1 million tablets, for the price of USD 147000.C – The agreement with Alpharma40. [H. Lundbeck] signed an agreement with Alpharma on 22 February 2002 (“the Alpharma agreement”), to run from that date until 30 June 2003 …41. Before concluding that agreement, in January 2002 Alpharma had bought from Alfred E. Tiefenbacher GmbH & Co. … a stock of generic citalopram tablets developed on the basis of the citalopram API produced by the Indian company Cipla according to its own processes … and had ordered further supplies.42. As concerns the preamble to the Alpharma agreement, it should be observed, in particular, that:– the first recital states that “[H. Lundbeck] owns intellectual property rights including, in particular, patent rights relating to the manufacture of the [API] ‘Citalopram’ [written with an upper case ‘C’ throughout the agreement], including the patents set out in Appendix A” to that agreement …;– the second recital states that [H. Lundbeck] produces and sells pharmaceutical products containing “Citalopram” in all Member States and also in Norway and Switzerland, those countries being together defined as “the Territory”;– the third and fourth recitals mention that Alpharma has produced or purchased pharmaceutical products containing “Citalopram” in “the Territory”, without [H. Lundbeck’s] consent;– the fifth and sixth recitals state that Alpharma’s products have been subjected to laboratory analyses by [H. Lundbeck], the results of which gave [H. Lundbeck] substantial reason to believe that the production methods used to produce those products infringed its intellectual property rights;– the seventh recital recalls that, on 31 January 2002, [H. Lundbeck] filed a lawsuit with a United Kingdom court (“the infringement action against Alpharma”) seeking an injunction “against Alpharma’s sale of products containing Citalopram for infringing [H. Lundbeck’s] intellectual property rights”;– the eighth recital states that Alpharma acknowledges that [H. Lundbeck’s] findings are correct and undertakes to refrain from marketing of “such products”;– The ninth and tenth recitals state that [H. Lundbeck]:– “has agreed to compensate Alpharma in order for [H. Lundbeck] to avoid patent litigation”, the outcome of which cannot be predicted with absolute certainty and which would be costly and time-consuming;– “in order to settle the dispute, [has] agreed to purchase all of Alpharma’s stock of products containing Citalopram and to compensate Alpharma for such products”.43. As regards the body of the Alpharma agreement, it should be observed, in particular, that:– Article 1.1 stipulates that Alpharma and its affiliates “shall cancel, cease and desist from any importation, … production, … or sale of pharmaceutical products containing Citalopram in the Territory … during [the relevant period]” and that [H. Lundbeck] is to withdraw the infringement action against Alpharma;– that same article specifies that it is not to apply to escitalopram;– Article 1.2 provides that “[i]n the event of any breach of the obligation set forth in Article 1.1 or at the request of [H. Lundbeck], Alpharma … will voluntarily submit to an interim injunction by any competent court in any applicable country in the Territory” and that [H. Lundbeck] is to be entitled to obtain such injunction without providing any kind of security;– Article 1.3 states that, as compensation for the obligations set out in that agreement and in order to avoid the costs and time of litigation, [H. Lundbeck] is to pay to Alpharma the sum of USD 12 million, of which USD 11 million is to be for Alpharma’s products containing “Citalopram”, in three instalments of USD 4 million to be paid on 31 March 2002, 31 December 2002 and 30 June 2003 respectively;– Article 2.2 establishes that, no later than 31 March 2002, Alpharma is to deliver to [H. Lundbeck] its entire current stock of products containing “Citalopram”, namely the 9.4 million tablets already in its possession at the time of conclusion of the Alpharma agreement and the 16 million tablets which it had ordered.44. Appendix A [to the Alpharma agreement] contains a list of 28 intellectual property rights applications lodged by [H. Lundbeck] before the signing of the agreement, including nine which had already been granted by that date. Those intellectual property rights related to the processes used to produce the citalopram API covered by the crystallisation [patent] and film distillation [patent].45 Furthermore, it should be noted that on 2 May 2002 a United Kingdom court granted a consent order staying all proceedings in the infringement action against Alpharma because of the conclusion of the agreement between [H. Lundbeck] and, among others, Alpharma, according to which Alpharma and its affiliates agreed to “cancel, cease and desist from all importation … production … or sale, in [the Member States], Norway and Switzerland (‘the Relevant Territories’) of pharmaceutical products containing citalopram manufactured using processes claimed in [the crystallisation patent and film distillation patent granted by the United Kingdom authorities] or any equivalent patent granted or applied for in relation to the Relevant Territories … until 30 June 2003” …D – The agreement with Ranbaxy46. [H. Lundbeck] signed an agreement with Ranbaxy Laboratories on 16 June 2002 (“the Ranbaxy agreement”), for a term of 360 days. Under an addendum signed on 19 February 2003 (“the Ranbaxy addendum”), that agreement was extended until 31 December 2003. The total duration of the agreement is therefore from 16 June 2002 until 31 December 2003 …47. According to the preamble to the Ranbaxy agreement (“the Ranbaxy preamble”):– Ranbaxy Laboratories filed two process patent applications in India relating to citalopram and manufactured medicinal products containing citalopram with the intention of marketing such products, in particular in the EEA (second and third recitals in the Ranbaxy preamble and Appendix A to the Ranbaxy agreement);– [H. Lundbeck] performed laboratory analyses on that citalopram and concluded that the processes used infringed the amide patent and the iodo patent [referred to in paragraph 19 of the judgment under appeal], the latter [patent] not having been granted yet (see paragraph 19 [of the judgment under appeal]), whereas Ranbaxy Laboratories disputed the existence of such infringements (fifth to eighth recitals in the preamble);– [H. Lundbeck] and Ranbaxy Laboratories arrived at an agreement in order to avoid costly and time-consuming patent litigation, the outcome of which could not be predicted with absolute certainty (ninth recital in the Ranbaxy preamble).48 According to the Ranbaxy agreement, in particular:– “Subject to the terms and conditions of this Agreement and subject to payment of the Settlement Amount by [H. Lundbeck], [Ranbaxy Laboratories] shall not … claim any rights on the Patent Application [referred to in the preamble] or any production method used by [Ranbaxy Laboratories] and shall cancel, cease and desist from any manufacture or sale of pharmaceutical products based hereon [in particular in the EEA] during the term of this Agreement” (Article 1.1 of the Ranbaxy agreement and Article 1.0 of the Ranbaxy addendum);– “In the event of any breach of the obligation set forth in Article 1.1 or at the request of [H. Lundbeck]”, Ranbaxy Laboratories and Ranbaxy (UK) would voluntarily submit to an interim injunction by any competent national court, without [H. Lundbeck] providing any kind of security or any undertaking other than the undertakings arising under that agreement (Article 1.2 of the Ranbaxy agreement);– in consideration of the agreement arrived at between the parties, [H. Lundbeck] was to pay to Ranbaxy Laboratories the sum of USD 9.5 million, in instalments over the relevant period (Article 1.3 of the Ranbaxy agreement and Article 2.0 of the Ranbaxy addendum);– [H. Lundbeck] was to sell citalopram tablets to Ranbaxy Laboratories or Ranbaxy (UK), with a discount of 40% on the ex-factory price, so that they could sell those tablets on the United Kingdom market (Article 1.3 of, and Appendix B to, the Ranbaxy agreement);– [H. Lundbeck] and Ranbaxy Laboratories undertook not to initiate legal proceedings against each other on the basis of any of the patents referred to earlier in the agreement itself (Article 1.4 of the Ranbaxy agreement).IV – Steps taken by the Commission in the pharmaceutical sector and administrative procedure49. In October 2003, the Commission of the European Communities was informed of the agreements at issue by the Konkurrence- og Forbrugerstyrelsen (the Danish authority for [the protection of] competition and consumers, [“the Danish Competition Authority”]).50. Since most of those agreements concerned the whole of the EEA or, at in any event, Member States other than the Kingdom of Denmark, it was agreed that the Commission would examine their compatibility with competition law, while the [Danish Competition Authority] would not pursue the matter.51 Between 2003 and 2006, the Commission carried out inspections within the meaning of Article 20(4) of [Regulation No 1/2003] at the premises of [H. Lundbeck] and other companies active in the pharmaceutical sector. It also sent [H. Lundbeck] and another company requests for information within the meaning of Article 18(2) of that regulation.52. On 15 January 2008, the Commission adopted the decision initiating an inquiry into the pharmaceutical sector, pursuant to Article 17 of Regulation No 1/2003 (Case No COMP/D2/39514). The single article of that decision stated that the inquiry would relate to the introduction of innovative and generic medicinal products for human consumption on to the market.53 On 8 July 2009, the Commission adopted a communication summarising its report of the inquiry into the pharmaceutical sector. That communication included, in a technical annex, the full version of the inquiry report, in the form of a Commission working document, available only in English.54 On 7 January 2010, the Commission opened formal proceedings against [H. Lundbeck].55 In 2010 and the first half of 2011, the Commission sent requests for information to [H. Lundbeck] and to the other companies which were parties to the agreements at issue.56 On 24 July 2012, the Commission opened proceedings against the companies which were parties to the agreements at issue and sent them, and [H. Lundbeck], a statement of objections.…60 On 19 June 2013, the Commission adopted [the decision at issue].V – [The decision at issue]61 By the [decision at issue], the Commission considered that the agreements at issue constituted restrictions of competition “by object” within the meaning of Article 101(1) TFEU and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] (Article 1(1) of the [decision at issue]).62 The two agreements between Merck (GUK) and [H. Lundbeck] were considered to have constituted a single and continuous infringement lasting from 24 January 2002 until 1 November 2003.63 As is apparent from the summary set out in recitals 824 and 874 of the [decision at issue], the Commission relied, in particular, on the following factors in that respect:– at the time of concluding those agreements, [H. Lundbeck] and Merck (GUK) were at least potential competitors in the United Kingdom and in the EEA and actual competitors in the United Kingdom before the second extension of the GUK United Kingdom agreement;– [H. Lundbeck] transferred significant value to Merck (GUK) pursuant to those agreements;– that transfer of value was linked to the acceptance by Merck (GUK) of the limitations on market entry set out in those agreements, notably its commitment not to sell [the citalopram API produced by Natco Pharma] or any other generic citalopram in the United Kingdom and in the EEA during the relevant term of those agreements;– that transferred value corresponded approximately to the profits Merck (GUK) expected to make if it had successfully entered the market;– [H. Lundbeck] could not have obtained those limitations on entry through enforcement of its process patents, since the obligations on Merck (GUK) under those agreements went beyond the rights granted to holders of process patents;– those agreements contained no commitment from [H. Lundbeck] to refrain from bringing infringement proceedings against Merck (GUK) if the latter entered the market with generic citalopram after the expiry of the agreements.64 The two agreements between Arrow and [H. Lundbeck] were considered to have constituted a single and continuous infringement lasting from 24 January 2002 until 20 October 2003.65 As is apparent from the summaries in recitals 962 and 1013 of the [decision at issue], relating to [the] Arrow UK agreement and the Arrow Danish agreement respectively, the Commission relied, in particular, on the following factors:– at the time those agreements were concluded, [H. Lundbeck] and Arrow were at least potential competitors in the United Kingdom and in Denmark;– [H. Lundbeck] transferred significant value to Arrow pursuant to those agreements;– that transfer of value was linked to Arrow’s acceptance of the limitations on its entry to the citalopram market in the United Kingdom and in Denmark contained in those agreements, in particular Arrow’s commitment not to sell generic citalopram, which [H. Lundbeck] regarded as infringing its patents, during the respective terms of those agreements;– that transferred value corresponded approximately to the profit that Arrow expected to make if it had successfully entered the market;– [H. Lundbeck] could not have obtained those limitations through enforcement of its new patents, since the obligations on Arrow under those agreements went beyond the rights granted to holders of process patents;– those agreements contained no commitment from [H. Lundbeck] to refrain from bringing infringement proceedings against Arrow if the latter entered the United Kingdom or Danish markets with generic citalopram after the expiry of one of those agreements.66 As regards the Alpharma agreement, as stated in the summary set out in recital 1087 of the [decision at issue], the Commission relied, in particular, on the following factors:– at the time when they concluded that agreement, [H. Lundbeck] and Alpharma were at least potential competitors in a number of EEA countries;– [H. Lundbeck] transferred significant value to Alpharma pursuant to that agreement;– that transfer of value was linked to Alpharma’s acceptance of the limitations on entry to the market contained in that agreement, and in particular to Alpharma’s commitment not to sell any generic citalopram in the EEA during the relevant period;– that transferred value corresponded approximately to the profit Alpharma expected to make if it had successfully entered the market;– [H. Lundbeck] could not have obtained those limitations through the application of the crystallisation [patent] and film distillation [patent], since the obligations placed on Alpharma under that agreement went beyond the rights granted to holders of process patents;– the agreement contained no commitment from [H. Lundbeck] to refrain from bringing infringement proceedings against Alpharma if the latter entered the market with generic citalopram after the expiry of the agreement.67 As regards the Ranbaxy agreement, as is apparent from the summary set out in recital 1174 of the [decision at issue], the Commission relied, in particular, on the following factors:– at the time of concluding that agreement, [H. Lundbeck] and Ranbaxy were at least potential competitors in the EEA;– [H. Lundbeck] transferred significant value to Ranbaxy pursuant to that agreement;– that transfer of value was linked to Ranbaxy’s acceptance of the limitations on its entry to the market set out in that agreement, and in particular to Ranbaxy’s commitment not to manufacture or sell citalopram in the EEA during the relevant period, whether through its own subsidiaries or via third parties;– that transferred value considerably exceeded the profit that Ranbaxy could have expected to make by selling the generic citalopram it had manufactured until then;– [H. Lundbeck] could not have obtained those limitations by enforcing its process patents, since the obligations on Ranbaxy under that agreement went beyond the rights granted to holders of process patents;– that agreement contained no commitment from [H. Lundbeck] to refrain from bringing infringement proceedings against Ranbaxy if the latter entered the market with its generic citalopram after the expiry of [that agreement].68 The Commission also imposed fines on all the parties to the agreements at issue. To that end, it applied [the 2006 Guidelines]. In [H. Lundbeck’s] case, the Commission followed the general methodology described in the 2006 Guidelines, based on the value of sales of the relevant product made by each participant in an infringement (recitals 1316 to 1358 of the [decision at issue]). In the case of the other parties to those agreements however, namely the [manufacturers of generic medicinal products], it made use of the possibility, provided for in point 37 of those Guidelines, to depart from that methodology, in view of the particularities of the case so far as those parties were concerned (recital 1359 of the [decision at issue]).69 Thus, as regards the parties to the agreements at issue other than [H. Lundbeck], the Commission considered that, in order to determine the basic amount of the fine and to ensure that the fine would have a sufficient deterrent effect, it was appropriate to take account of the value of the sums transferred to them by [H. Lundbeck] pursuant to those agreements, without differentiating between the infringements on the basis of their nature or geographic scope, or on the basis of the market share of the undertakings concerned, those factors being addressed only for the sake of completeness (recital 1361 of the [decision at issue]).70 As regards [H. Lundbeck], the Commission applied the general method described in the 2006 Guidelines, taking as a basis the value of sales on the relevant market. Since [H. Lundbeck’s] sales of citalopram had significantly decreased during the course of the agreements, and since the agreements did not cover a full business year, the Commission calculated an average annual value of sales. For that purpose, it first calculated the monthly average value of [H. Lundbeck’s] sales of citalopram during the term of each of the agreements at issue, then multiplied that value by 12 (recital 1326 and footnote [ 2215] of the [decision at issue]).71 The Commission also imposed four separate fines on [H. Lundbeck], since the six agreements at issue were regarded as giving rise to four separate infringements, in so far as the two agreements between [H. Lundbeck] and Merck (GUK) gave rise to a single and continuous infringement, as did the two agreements between [H. Lundbeck] and Arrow. In order to avoid arriving at a disproportionate fine, the Commission nevertheless applied a negative weighting in the light of the circumstances of the case, based on a method reflecting the geographic and temporal overlaps between the various infringements (recital 1329 of the [decision at issue]). That method resulted in a reduction of 15% for each infringement where overlaps were found (footnote [2218] of the [decision at issue]).72 In the light of the gravity of the infringements found, which the Commission classified as “serious”, since [the agreements at issue] entailed market exclusion; [H. Lundbeck’s] high market share of the product to which the infringements related; the wide geographic scope of the agreements at issue; and the fact that all the agreements had been implemented, the Commission considered that the proportion of the value of sales to be applied should be set at 11% for the infringements where the geographic scope was the entire EEA and 10% for the other infringements (recitals 1331 and 1332 of the [decision at issue]).73 The Commission applied a multiplier to that amount to take account of the duration of the infringements (recitals 1334 to 1337 of the [decision at issue]) and an additional amount of 10% for the first infringement committed, that is to say, the infringement concerning the agreements with Arrow, in application of point 25 of the 2006 Guidelines, in order to ensure that the fines [imposed on H. Lundbeck and Lundbeck Ltd] would be sufficiently deterrent (recital 1340 of the [decision at issue]).74 In view of the total length of the investigation, the Commission nevertheless granted a reduction of 10% of the amount of the fines imposed on all the addressees of the [decision at issue] (recitals 1349 and 1380 of the [decision at issue]).75 On the basis of those considerations, and taking into account the fact that the GUK United Kingdom agreement had been signed by Lundbeck Ltd, the Commission imposed a total fine of EUR 93766000 on [H. Lundbeck], of which EUR 5306000 jointly and severally with Lundbeck Ltd, composed as follows (recitals 1238 and 1358 and Article 2 of the [decision at issue]):– EUR 19893000 for the agreements concluded with Merck (GUK), of which EUR 5306000 jointly and severally with Lundbeck Ltd;– EUR 12951000 for the agreements concluded with Arrow;– EUR 31968000 for the agreement concluded with Alpharma; and– EUR 28954000 for the agreement concluded with Ranbaxy.’
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