10 February 2020
Anticompetitive agreements: Restriction by object
The characterization as a “restriction by object” must be upheld where it is clear from an analysis of settlement agreement that the sole consideration for transfers of value provided by it is the generic manufacturer’s undertaking not to enter the market and no longer to challenge the patent and can have no explanation other than the commercial interest of both the patent holder not to enter the market and not to challenge the patent and the alleged patent infringer not to compete on the merits.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ
Anticompetitive agreements: Restriction by object
When the parties to an amicable settlement purport to rely on its pro-competitive effects, the court must, as elements of the context of that agreement, take them into account for the purpose of the characterization as a “restriction by object” insofar as they are capable of calling into question the overall assessment of whether the concerted practice concerned revealed a sufficient degree of harm to competition and are demonstrated, relevant and specifically related to the agreement concerned.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ
Anticompetitive agreements: Rule of reason
The taking into account of the pro-competitive effects of a settlement agreement does not conflict with the European Court’s settled case-law that EU competition law does not recognize a rule of reason, where it is intended not to undermine the characterization of a restriction of competition but merely to appreciate the objective seriousness of the practice concerned and, consequently, to determine the means of proving it.
CJEU, Case C-307/18 Generics (UK) Ltd, Judgment of 30 January 2020, LawLex20200000131JBJ
Public procurement: Participation in contract
The specific objective of Article 57(4)(a) of Directive No 2014/24, which is to ensure compliance with obligations under environmental, social and labor law, combined with the objective relating to the reliability of the economic operator under Article 101 of that directive, must enable the Member States to impose the contracting authority the option, or even the obligation, to regard as reliable only those economic operators who, when drawing up their tenders, have exercised the care and diligence required to ensure that, in the course of performance of the contract, the obligations concerned are complied with in all circumstances, whether by themselves or by the subcontractors to whom they intend to entrust part of that performance.
CJEU, Case C-395/18 Tim SpA – Direzione e coordinamento Vivendi SA, Judgment of 30 January 2020, LawLex20200000147JBJ
Public procurement: Causes of exclusion
National legislation is incompatible with EU law where it provides in a general and abstract manner for the automatic exclusion of the economic operator when a failure to fulfil obligations under environmental, social and labor law is established in relation to one of the subcontractors indicated in that operator’s tender, irrespective of the circumstances which led to that failure, and thus establishes an irrebuttable presumption that the economic operator must be excluded for any failure attributable to one of its subcontractors, without leaving the contracting authority the option of assessing, on a case-by-case basis, the particular circumstances of the case or the economic operator being able to demonstrate its reliability despite the finding of that failure.
CJEU, Case C-395/18 Tim SpA – Direzione e coordinamento Vivendi SA, Judgment of 30 January 2020, LawLex20200000147JBJ
