Pay-for-Delay and the Structure of Article 101(1) TFEU: Points of Law Raised in Lundbeck and Paroxetine

Pablo Ibáñez Colomo, London School of Economics - Law Department discusses Pay-for-Delay and the Structure of Article 101(1) TFEU: Points of Law Raised in Lundbeck and Paroxetine.

ABSTRACT: • Pay-for-delay cases raise fundamental points of law, including the notion of (potential) competition and restriction by object.

• According to the rich case law addressing the relationship between Article 101(1) TFEU and intellectual property – including Nungesser and BAT (Toltecs-Dorcet) – a settlement addressing a genuine patent dispute is not in itself restrictive of competition.

• The decisions in Lundbeck and Paroxetine depart in some respects from the relevant case law in that they suggest that even a settlement addressing a genuine patent dispute can violate Article 101(1) TFEU by its very nature.

• The approach suggested in the two decisions would herald a new relationship between EU competition law and intellectual property.