Judgment_paragraph 353 · European Commission v Servier SAS and Others (C-176/19 P)

353In the third place, as noted in paragraph 340 of the present judgment, the counterfactual method is not intended to predict what a party’s conduct would have been if it had not concluded an agreement with its competitor or competitors, but to highlight a causal relationship between that agreement and a deterioration in the competitive situation on the market, on the basis of a counterfactual scenario which, although hypothetical, must nevertheless be realistic and credible. In that regard, the Court has already had occasion to state, in the context of a patent dispute settlement agreement in return for reverse payment, that the sole purpose of the counterfactual scenario is to establish the realistic possibilities with respect to the conduct of the manufacturer of generic medicines in the absence of that agreement. While that counterfactual scenario cannot be unaffected by the chances of success of that manufacturer in the patent proceedings or again in relation to the probability of conclusion of a less restrictive agreement, those factors constitute, however, only one of the factors among many to be taken into consideration. Consequently, it is not for the entity bearing the burden of proving the existence of appreciable potential or real effects on competition, when it establishes the counterfactual scenario, to make a definitive finding in relation to the chances of success of the manufacturer of generic medicines in the patent dispute or to the probability of the conclusion of a less restrictive agreement (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 119 to 121).