Originally from European International Arbitration Review

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OPINION OF ADVOCATE GENERAL WATHELET
delivered on 17 March 2016 (1)
Case C 567/14
Genentech Inc.
v
Hoechst GmbH, formerly Hoechst AG,
Sanofi-Aventis Deutschland GmbH

(Request for a preliminary ruling from the cour d’appel de Paris (Court of Appeal, Paris) (France))
(Reference for a preliminary ruling — Action for annulment of an arbitral award — Competition — Article 101 TFEU — Agreements, decisions and concerted practices — Non-exclusive patent licence agreement — Revocation of patents — No infringement — Effect — Obligation to pay royalties) 

I.    Introduction

1.    This request for a preliminary ruling concerns the interpretation of Article 101 TFEU. More specifically, the cour d’appel de Paris (Court of Appeal, Paris) asks whether this article precludes an obligation imposed on a licensee under a patent licence agreement to pay royalties for the entire duration of the agreement until its termination, notwithstanding the absence of infringement or the revocation of the licensed patent or patents.
2.    The request was submitted in the context of an action for annulment of arbitral awards filed by Genentech Inc., a company incorporated under Delaware law (United States of America) (‘Genentech’) against Hoechst GmbH, formerly Hoechst AG (‘Hoechst’) and Sanofi-Aventis Deutschland GmbH (‘Sanofi-Aventis’), companies incorporated under German law.

II.    Legal Framework

A.    EU Law

3.    Article 101 TFEU provides:
‘1.    The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a)    directly or indirectly fix purchase or selling prices or any other trading conditions;