Cartes Bancaires Case Study

Cartes Bancaires is a judgment, that came out from the European Court of Justice in September 2014. This case was extremely significant in its elaboration of “by object” restrictions of competition. In its judgment, the ECJ set aside the judgment of the General Court of 2012 and referred it back to them.[ ECJ 11.09.2014, C67/13 P, Cartes Bancaires, para. 95-99] The court concluded that, when analyzing conduct using the “by object” restriction- principle, a ‘sufficient degree of harm’ has to be intrinsic to the conduct itself. This consideration, the court further concludes, has to be based on some type of knowledge from past experiences with similar conduct. That is the only way of taking all relevant aspects into account in the assessment.[

Intellectuaal Property, Antitrust and Cumulative Innovation in the EU and the US. Cornwall, Hart Publishing Ltd 2012, p 108-109.] This was later (in 2012) confirmed in the European Court of Justice. The case was the first in the pharmaceutical sector, to include restrictions of competition by the originator via delaying generic entry to the market. Therefore it was highly influential to the way companies structured their strategies to protect their brands after patent expiry. According to Nick Beckett, David Marks and John Markham in “AstraZeneca judgment: don’t game the system”, in this regard it was even more influential, than the Commission’s Pharmaceutical Sector Inquiry.[ Beckett N., Marks D., Markham J. AstraZeneca judgment: don’t game the system. CMS Cameron McKenna, Lexology 2012. www.lexology.com/library/detail.aspx?g=6178aea4-40af-4f57-b629-b53402a909cf(07.01.2017)] The other, perhaps even more significant feature of AstraZeneca was the general acknowledgment by the European Court of Justice of the legality and legitimacy of the strategies by originator companies that attempt to minimize losses that they expect will arise due to the generic competitors entering the market. The ECJ states in their judgment