Podcast: Pay-for-delay and the duty to retain documents: The CJEU’s judgment in Lundbeck

On The Pulse: Talks

27.04.2021 11 mins

In this follow-up episode of our podcast series on patent settlement agreements and competition law, Sophie Lawrance and Helena Connors cover the key takeaways from the Court of Justice’s long-awaited judgment in Lundbeck.

While there are no big surprises in this judgment, it does clarify the Court’s position on two key points of contention:

  1. whether generics manufacturers and originator companies are potential competitors; and
  2. on whether a “pay-for-delay” type agreement may amount to a restriction of competition “by object”.

In this podcast, Sophie and Helena discuss the Court’s selection of facts to illustrate its reasoning on these points, in particular in relation to its consideration of “subjective” factors as evidence of whether parties viewed each other as potential competitors.

They also explore an interesting and potentially important procedural point which arose out of the related Xellia and Alpharma judgment, which signals an apparent expansion of the duty to retain evidence. Should companies involved in sector inquiries preserve documents for an extended period of time as a result of this judgment? Will the Commission start to apply this enhanced duty in future investigations? Tune in to hear their thoughts.

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