I INTRODUCTION

In Spain, the main provisions regulating national intellectual property rights (IPRs) are the 24/2015 Patent Act, the 17/2001 Trademark Act and the 1/1996 Copyright Act.

For its part, Spanish antitrust law is regulated in the Antitrust Act 15/2007 (AA), which is aligned with European Union antitrust provisions. Article 1 of the AA prohibits agreements between companies that restrict or could restrict competition in a similar way to Article 101 of the Treaty on the Functioning of the European Union (TFEU), and Article 2 of the AA prohibits abuses of dominant position, as does Article 102 of the TFEU. As for merger control, although there are procedural differences between the Spanish and the European provisions, the principles behind merger control envisaged in the AA are also aligned with those of the Commission and of the Court of Justice of the European Union (CJEU).

The AA states that the prohibition of collusive conduct that may restrict or distort competition will not apply to those agreements that comply with the provisions set out in the Community Regulations on the application of the current Article 101(3) of the TFEU for certain categories of agreements, including when the corresponding conduct may not affect trade between EU Member States. When IPRs are involved, special mention should be made of Commission Regulation No. 316/2014 regarding Technology Transfer Agreements2 (TTBER), the Commission Guidelines developing it3 and Commission Regulation No. 1217/2010 regarding research and development agreements,4 which will also be of application in relation to agreements affecting only the Spanish market.

The interplay between IPRs and antitrust law has been expressly highlighted by the Spanish Antitrust Authority (the CNMC) on several occasions. The CNMC has expressly recognised that IPRs and antitrust law have a common goal of promoting competition and innovation to promote consumer welfare and an efficient allocation of resources. Notwithstanding that, as IPRs confer a monopoly to use a certain invention, trademark or copyright, it is necessary to strike a balance between the IPR holder's right to be compensated for its contribution to the innovation and work, and the collective interest in promoting competition on the market and avoiding any restriction or abuse of it.

II YEAR IN REVIEW

Over the past year, there have been some developments in Spain regarding trademark exhaustion, as a result of applying the principles laid down by the CJEU judgment in the Schweppes case5, which clarified the ownership doctrine developed in its judgments Hag II 6 and Ideal Standard.7

There have also been developments regarding the Oracle case,8 which relates to whether a refusal to continue developing a software application and licensing may constitute an abuse of dominant position, and regarding the SGAE case,9 which refers to unfair and discriminatory pricing.

Moreover, as this year's Mobile World Congress (MWC) has taken place again in Barcelona, new decisions have been handed down in relation to injunction applications over standard-essential patents (SEPs).

III LICENSING AND ANTITRUST

i Anticompetitive restraints

Under Spanish law, anticompetitive restraints included in licensing agreements are subject to the prohibition stated in Article 1 of the AA and Article 101 of the TFEU. In accordance with these provisions, those agreements, collective decisions or recommendations, or concerted or consciously parallel practices, which have as their object or effect, the prevention, restriction or distortion of competition in all or part of the national market (in the case of Article 1 of the AA) or the EU market (in the case of Article 101 of the TFEU) are prohibited. Examples of these agreements include price-fixing, market share-out or limitation of production.

When analysing the compatibility of licensing agreements with antitrust laws, the Spanish antitrust authorities have considered the TTBER provisions. For instance, in the Haller case10, what was then the former CNMC, the National Competition Commission (CNC), applied the former TTBERs of 1996 and 200411 to assess whether the licence agreements entered into by Haller with its distributors in Portugal and Spain were in accordance with antitrust law. The licence agreements included an absolute restriction on passive sales, since the licensees were only authorised to produce and market the licensed equipment in the territories assigned to them. Although the companies held a small market share within the Spanish market and the TTBERs applicable at that time established a more benevolent treatment to passive sales restrictions to incentivise investment and efficiency, the CNC concluded that these clauses constituted a hardcore restriction and could not benefit from the TTBER exemption. However, this resolution was reversed by the National High Court12 by application of the de minimis rule, as Haller's market share in Europe and in Spain was less than 4 per cent and 5 per cent, respectively, and, consequently, it was considered that its conduct was not sufficiently material to significantly restrict competition.

Passive sales restrictions were also analysed by the CNC in the Carpa Dorada13 case, which involved licences to exploit a Community plant variety right over a specific variety of mandarin named Nadorcott. The CNC analysed whether the passive sales restrictions included in the licensing agreements could be justified to form part of a selective distribution system in accordance with Commission Regulation (EU) No. 330/2010 on vertical restraints.14 The CNC concluded that the tracking system included in the granting of exploitation licences of this plant variety infringed Article 1 of the AA and Article 101 of the TFEU, as it allowed the control of the production and marketing of the Nadorcott mandarins. Moreover, this tracking system could not be justified as forming part of a 'selective distribution system' as it only affected the first level of the production chain (manufacturers and wholesalers) and did not continue through to retailer level.

Recently, the CNMC has brought sanction proceedings against Adidas España15 for potential anticompetitive restraints over its franchisees, consisting of prohibiting them from making certain sales (e.g., online sales and cross-sales), imposing non-competition obligations that could be deemed disproportionate, and indirectly fixing resale prices.

ii Refusals to license

Refusal to license could be considered an abuse of dominant position under Article 2 of the AA and Article 102 of the TFEU if the IPR holder has a dominant position in the market. This conduct has been the subject of the ongoing Oracle case involving Oracle's decision to suspend the development of its software for Intel's Itanium processor, which was used in Hewlett Packard's Integrity servers.

The CNC,16 on the basis of the Commission's principles on establishing when a refusal to supply can be considered abusive,17 concluded that there was no evidence to class Oracle's conduct as an exclusionary abuse of dominant position and it closed the file. This decision was revoked by the National High Court,18 which considered that Oracle's decision aimed at preventing the continuation of Hewlett Packard in the high-performance database servers market could not be justified by the fact that the Itanium processor was obsolete. This judgment was also revoked by the Supreme Court,19 which ruled that, although the National High Court was right in concluding that the CNC should not have closed the case without properly assessing the evidence before it, it was wrong in attempting to replace the CNMC and decide the case by itself, by declaring that Oracle's conduct constituted an abuse of its dominant position. Consequently, the Supreme Court ordered that the case be referred back to the CNMC, which reopened the case. After reassessing all the evidence on file, the CNMC Council issued a new decision declaring that the Investigation Division failed to demonstrate that Oracle had breached Article 1 of the AA or Article 102 of the TFEU.20 Among other findings, the CNMC concluded that the classic refusal-to-supply theory of harm cannot be applied to products that still need to be developed, and that, in such cases, the test must be stricter and was not met in the case at hand.

When a refusal to license is deemed an abuse of dominant position, the Spanish Patent Act21 envisages the possibility of granting a compulsory licence, in line with Articles 8(2), 31(k) and 40 of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and with the CJEU case law stated in the Magill,22 IMS 23 and Microsoft 24 cases. According to this case law, in exceptional circumstances the IPR holder can be obliged to grant a licence to a third competitor if the refusal to grant constitutes an abuse of dominant position. The Spanish Patent Act establishes this possibility when the competent authority has handed down a final decision (i.e., a decision that cannot be further appealed) declaring the infringement of antitrust law by the patent holder.

iii Unfair and discriminatory licensing

Unfair and discriminatory licensing could constitute an abuse of dominant position within the meaning of Article 2 of the AA or Article 102 of the TFEU. A good example of this is the Spanish Supreme Court judgment in the Audiovisual Producers Rights Management Organisation (EGEDA) case.25 EGEDA's conduct consisted of determining the amount of the applicable tariffs based on the hotel category (i.e., deluxe and five-star hotels were subject to higher tariffs, whereas hotels of two or fewer stars were exempted from payment). By referring to the CJEU doctrine of the Kanal 5 case,26 the Supreme Court concluded that EGEDA had committed an abuse of its dominant position as the tariffs imposed were discriminatory and could not be justified since they were neither related to the nature of the economic value of the services of public communication of audiovisual productions rendered, nor to the effective use of these rights.

On 31 May 2019,27 the CNMC sanctioned another management society, the Spanish Society of Authors, Composers and Publishers (SGAE), for abuse of dominant position for, among other conducts, having fixed unfair and discriminatory tariffs for hotels and restaurants. When assessing whether the discriminatory prices applied by a dominant company may result in a 'competitive disadvantage' in the sense of Article 2(2)(d) of the AA and Article 102(c) of the TFEU, the CNMC has taken into account, among other precedents, the CJEU judgment in the MEO case.28

iv Patent pooling

Within the scope of a cartel investigation regarding paper envelopes, the CNC had to analyse whether the creation of a patent pool was compatible with antitrust laws.29 The investigated companies created the 'Open System' patent pool, which was formed by co-owned IPRs protecting a technology for easy-opening envelopes. The companies transferred their IPRs and limited technological innovations and agreed not to license their IPRs to companies outside the pool. The CNC concluded that these agreements to share their own technologies were similar to a price-fixing cartel, in application of the 2004 TTBER.30

v Software licensing

Software licensing agreements will be treated as vertical agreements under the principles of the Vertical Block Exemption Regulation when the purpose of the agreement is the mere reproduction and distribution of software copyright protected products. However, in those cases where the technology to produce the software is also licensed, the software licensing agreement will fall within the scope of the 2014 TTBER (Recital 7).

As previously mentioned in discussing the Oracle case, depending on the particularities of the case, a refusal to license software could be considered a refusal to supply, constituting an abuse of dominant position.

vi Trademark licensing

Trademark licensing and, in particular, exhaustion and territorial restrictions, have been in vogue in recent years in Spain as a result of the Schweppes case.

The Schweppes case arises from the fact that, since 1999, the Schweppes trademark was owned in Europe by two different corporate groups. The Coca-Cola group owned the Schweppes trademark in 11 Member States of the EU, including the United Kingdom; meanwhile, the Orangina Schweppes group owned the Schweppes trademark in the other EU Member States, including Spain. In 2013, the Spanish affiliate of the Orangina Schweppes group became aware that parallel importers were introducing Schweppes tonic water, mainly from the United Kingdom, into the Spanish market. As licensee of the Spanish Schweppes trademark, it brought several legal actions against these parallel importers on the basis that, as the tonic water imported had been manufactured by the Coca-Cola group (and not by the Orangina Schweppes group), the Schweppes trademark in Spain, owned by this latter group, was not exhausted.

As a result of these actions, several agreements were entered into with some of the parallel importers accused of infringing the Spanish trademark. These agreements were the subject matter of an investigation by the CNMC,31 which considered that the rights over the Schweppes trademark were not exhausted on the basis of the control doctrine developed by the CJEU in the Hag II and Ideal Standard cases. According to such doctrine, each IPR holder should be entitled to oppose the import and marketing of products manufactured by the other holder provided that the products are designated by a similar trademark and that this could cause confusion within the market, as these products have not been manufactured under its control. On this basis, the CNMC analysed the agreements entered into by the Spanish affiliate and some parallel importers and accepted the undertaking to amend them to clarify that it only opposed the introduction of the Schweppes tonic water coming from the United Kingdom and manufactured by the Coca-Cola group into the Spanish market.

In parallel, Spanish courts have also handed down some decisions on this same case, mainly ruling in favour of Schweppes, SA.32 However, the Barcelona Commercial Court No. 833 decided to refer some questions related to this Schweppes case to the CJEU, which clarified the ownership doctrine developed in the Hag II and Ideal Standard judgments in the sense that the proprietor of a national trademark cannot oppose the import of identical goods bearing the same trademark originating in another Member State in which the trademark that initially belonged to that proprietor is now owned by a third party that has acquired the rights thereto by assignment, when, following that assignment, either of the following two circumstances takes place:

  1. the proprietor has actively and deliberately continued to promote the appearance or image of a single global trademark, thereby generating or increasing confusion as to the commercial origin of goods bearing that trademark; or
  2. there exist economic links between the proprietor and that third party, inasmuch as they coordinate their commercial policies or exercise joint control over the use of the trademark, so that it is possible for them to determine the goods to which the trademark is affixed and to control the quality of those goods.

On the basis of this CJEU judgment, Barcelona Commercial Court No. 8 issued a judgment34 in which it has not followed the same approach as the other Spanish courts dealing with similar matters. It concluded that there were sufficient indicia to deem that, after the fragmentation of the trademark in 1999, the trademark holder in Spain, alone or in coordination with the Coca-Cola group, has actively and deliberately promoted the image of Schweppes as a global and unique trademark, creating confusion among the public as to the corporate origin of the Schweppes products. This confusion undermines the essential function of the trademark and, consequently, on the basis of the CJEU judgment, the patent holder cannot oppose the parallel imports of identical products designated with the same trademark coming from a Member State in which the trademark is currently owned by the third party (i.e., the Coca-Cola group) with which it has been coordinating the exploitation strategy of the trademark within the European Economic Area.

Trademark exhaustion within a selective distribution system in high-quality, but not luxury, goods has been analysed in detail by the Barcelona Court of Appeal in the Mustela case;35 on the basis of the principles laid down by the CJEU in the Parfums Christian Dior36 and Coty37 cases and by the Supreme Court in the L'Oreal case.38 It understands that the exception to the trademark exhaustion stated by this case law for luxury products can also apply to 'quality' products to preserve the prestige and image of their trademark.

IV STANDARD-ESSENTIAL PATENTS

i Dominance

To the best of our knowledge, there is no case law in Spain in which the antitrust authorities or the Spanish courts have expressly declared that a company holding an SEP has a dominant position in the market. However, it is likely that they will take this approach, in line with the considerations made by Advocate General Mr Wathelet in his conclusions on the Huawei case,39 in which he pointed out that there could be a rebuttable presumption that the owner of an SEP holds a dominant position

ii Injunctions

When dealing with injunctions, Spanish courts will follow the Huawei doctrine,40 which has clarified when a request for an injunction based on an SEP could constitute an abuse of dominant position. This has been the case, for example, in the preliminary injunction applications brought before the Barcelona commercial courts specialising in patents within the scope of the MWC. What is more, these courts have also applied the Huawei principles in relation to patents that were not SEPs, but that protected a technology that held a predominant position in the market. The reasoning behind this is that the Huawei case law provides guidelines and interpretation criteria that allow the courts to conduct a reasonable and equitable assessment of the rights and interests existing between licensee and licensor when infringement actions are brought while the negotiation of the licensing terms are taking place.41

Within the context of the MWC, in 2019, the Barcelona commercial courts, together with the European Union Trademark Court in Alicante, have established a protocol of conduct to deal with (without delay) any action brought (1) in relation to technological patents and industrial designs relating to products to be exhibited at the MWC, (2) in defence of any trademark and copyrights that could be infringed, or (3) against unfair competition and unlawful advertising acts in relation to products and materials that are on display at the MWC. The purpose of this protocol is to avoid, to the extent possible, adopting ex parte interim measures and, at the same time, to ensure the adoption of effective measures to protect any affected IPRs. According to the report published on the results of the 2019 MWC, these courts dealt with a total of 50 matters relating to protective writs, applications for investigations of facts and ex parte interim injunctions.

iii Licensing under FRAND terms

In the past year, several patent disputes have arisen in the telecoms sector regarding SEP patents owing to disagreements on royalty fees. However, the most interesting cases were finally settled; therefore, there is no case law in Spain in this regard. Spanish courts have expressly recognised that the licensing of technologies protected by SEPs will be granted under fair, reasonable and non-discriminatory (FRAND) terms.42 However, there is no guidance on how to determine these FRAND terms, apart from that found in the Commission's Horizontal Guidelines,43 which state that the royalty under FRAND terms should present a reasonable relationship to the economic value of the IPRs and suggest different methodologies to make this assessment.

iv Anticompetitive or exclusionary royalties

To the best of our knowledge, there are no precedents in Spain dealing with anticompetitive or exclusionary royalties and whether they could constitute an abuse of dominant position. However, it cannot be ruled out that when the royalty to be paid for an SEP licence is not FRAND, but higher, this could be deemed an exclusionary abuse of dominant position that would fall under Article 2 of the AA and Article 102 of the TFEU.

V INTELLECTUAL PROPERTY AND MERGERS

i Transfer of IP rights constituting a merger

According to the AA, in line with the EC Merger Regulation,44 a concentration takes place when a change of control on a lasting basis results from, for example, the acquisition by an undertaking of all or part of one or more other undertakings. In this respect, the Commission Consolidated Jurisdictional Notice45 clarifies that when the transaction is confined to intangible assets (such as trademarks, patents or copyrights) it may also be a concentration if those assets constitute a business with a market turnover. It also states that the transfer of licences for trademarks, patents or copyrights, without additional assets, would only fulfil these criteria if the licences are exclusive at least in a certain territory and the transfer of such licences will transfer the turnover-generating activity. However, in the case of non-exclusive licences, it is stated that they may not on their own constitute a business to which a market turnover is attached.

Considering the similarities between the definitions of concentration in the EC Merger Regulation and the AA, we understand that the considerations made by the Commission in the Consolidated Jurisdictional Notice would also be considered by the Spanish antitrust authorities when analysing whether a transfer of certain IPRs constitutes a merger.

ii Remedies involving divestitures of intellectual property

Divestiture of IPRs can be a remedy in merger control in Spain. A good example of this is the Bimbo/Panrico case.46 For many years, the Bimbo and Panrico trademarks have been competing trademarks in the packaged bread and bread substitutes and industrial cake businesses. The CNMC authorised the acquisition by the company Bimbo of part of its competitor Panrico's business, including some of the well-known brands owned by Panrico, such as Donuts, provided that all those assets owned by Panrico regarding the packed bread and bread substitutes business and the trademarks related to this business (such as the Panrico trademark) were previously transferred to a third party, namely Adam Foods. The result of the undertakings assumed by the parties is that the trademarks Bimbo and Panrico will continue competing in the packaged bread and bread substitutes market through Adam Foods.

VI OTHER ABUSES

i Sham or vexatious IP litigation

To assess whether IP litigation can be deemed as sham or vexatious, the ITT Promedia doctrine,47 confirmed by the Protégé International case,48 will be taken into account by Spanish authorities and courts. According to the case law of the General Court of the CJEU (EGC), access to the courts, including by an undertaking in a dominant position, is a fundamental right and a general principle ensuring the rule of law. Therefore, it is only in wholly exceptional circumstances that bringing a legal action, by an undertaking in a dominant position against its competitor, could constitute abuse of a dominant position. In particular, two cumulative conditions must be met:

  1. the action cannot reasonably be considered an attempt to establish the rights of the undertaking concerned and can, therefore, only serve to harass the opposing party; and
  2. the action must be conceived within the framework of a plan whose goal is to eliminate competition.

These two criteria must be interpreted and applied restrictively in a way that does not frustrate the general rule of access to the courts, and it is the situation existing when the action is brought that must be considered in order to determine whether that criterion is satisfied. In the Protégé International case, the EGC added that the action brought by the dominant company could not be deemed abusive even if in other jurisdictions other authorities had decided against the same arguments that the dominant company was raising in those proceedings.

Although not referring to an IP litigation, this case law was applied by the Madrid Court of Appeal49 within the scope of foreclosure proceedings in which the defendant alleged that the bank enforcing the loan was abusing its dominant position. We understand that the same principles should also be applicable in IP litigation. In fact, some years ago, the Supreme Court50 stated that the actions brought in defence of the Diesel trademark in that case were legitimate and in accordance with the antitrust laws, as it was contrary to competition to take unfair advantage of the reputation of a third-party trademark.

ii Misuse of the patent process

Misuse of the patent process could fall within the scope of the prohibition stated in Article 2 of the AA and Article 102 of the TFEU if the party holding the patent can be considered to have a dominant position.

The landmark case in Spain on misuse of the patent process is Pfizer – Xalatan, which related to Pfizer's applications for a divisional patent, paediatric extension and a supplementary protection certificate (SPC) extending its patent protection for its medicinal drug Xalatan. The CNMC51 agreed to discontinue its investigation after considering that there was no evidence of anticompetitive practices in Pfizer's conduct in Spain. The CNMC concluded that Pfizer held a dominant position within the market, defined at the ATC4 level corresponding to the commercial category of S01EE (i.e., prostaglandin analogues). However, Pfizer's conduct did not amount to an abuse of dominance, since Pfizer had merely defended its legitimate interests within the limits of the patent system. This conclusion was essentially based, after verifying that there were significant differences between Pfizer's conduct in Spain and that found in the AstraZeneca case,52 on the following:

  1. no misleading information was submitted to the patent authorities;
  2. Pfizer was not able to apply for an SPC for the parent patent in Spain as the Spanish market authorisation for Xalatan was granted prior to the enforceability of the SPC Regulation in Spain and there were no transitional provisions applicable to Spain;
  3. the divisional patent was applied for in accordance with the relevant requirements and procedures; and
  4. Pfizer's conduct in Spain showed a lack of exclusionary intent, as could be seen from the fact that generic manufacturers entered the Spanish market before the Xalatan patent expired.

This CNMC decision regarding Pfizer's conduct in Spain differed from that of the Italian antitrust authorities in relation to similar conduct by Pfizer in Italy. In fact, in line with the latter's decision revoking the decision handed down by the Administrative Court of Lazio, the Council of State concluded that Pfizer had committed an abuse of dominant position due to misuse of the patent system.

Although the resolutions adopted in Italy and Spain could apparently be contradictory, we understand that there were differences between the facts and the regulations applicable in both Member States that justified the CNMC not following the Italian antitrust authorities and discontinuing the investigation opened against Pfizer in Spain.

iii Anticompetitive settlements of IP disputes

Settling an IP dispute is quite a common way of terminating a dispute for many reasons, such as costs and legal certainty. However, depending on the terms of these settlements, it cannot be ruled out that they are considered contrary to Article 1 of the AA and Article 101 of the TFEU. To the best of our knowledge, there are no precedents before the Spanish antitrust authorities dealing with this kind of agreement. However, we understand that the Spanish authorities would follow the EGC judgments on the Lundbeck53 and Servier54 cases.

VII OUTLOOK AND CONCLUSIONS

The interplay between IP and antitrust is an open debate in relation to which there are not many precedents in Spain and is one that we can expect to have more prominence in the coming years. In this respect, any development taken at EU-level, whether by the Commission or the CJEU, in relation to this interplay will influence the approach that Spanish antitrust authorities and courts will take when dealing with this kind of matter.


Footnotes

1 Rais Amils is a senior associate at Clifford Chance. The author thanks Belén Irissarry for her useful comments.

2 Commission Regulation (EU) No. 316/2014 of 21 March 2014 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements.

3 Guidelines on the application of Article 101 of the Treaty on the Functioning of the European Union to technology transfer agreements.

4 Commission Regulation No. 1217/2010 of 14 December 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of research and development agreements.

5 CJEU judgment, 20 December 2017, C-291/16, Schweppes.

6 CJEU judgment, 17 October 1990, C-10/89, Hag II.

7 CJEU judgment, 22 June 1994, C-9/93, Ideal Standard.

8 See Section III.ii.

9 See Section III.iii.

10 CNC decision, 22 July 2008, 634/07, MDC Ingeniería/Productos Haller.

11 Commission Regulation (EC) No. 240/96 of 31 January 1996 on the application of Article 85(3) of the Treaty to certain categories of technology transfer agreements and Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements.

12 National High Court judgment, 29 October 2009, SAN 4556/2009.

13 CNC decision, 4 July 2013, S/0312/10, Carpa Dorada, confirmed by National High Court judgment, 18 June 2015 (SAN 2449/2015).

14 Commission Regulation (EU) No. 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices.

15 CNMC press release, 22 November 2018, Case S/DC/0631/18.

16 CNC decision, 26 February 2013, S/0354/11, Oracle.

17 Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertaking (2009/C 45/02), Paragraph 81.

18 National High Court judgment, 24 September 2015, SAN 3126/2015.

19 Supreme Court judgment No. 583/2018, 10 April 2018, STS 1362/2018.

20 CNMC decision, 20 February 2019, S/0354/11, Oracle.

21 Law No. 24/2015 of 24 July 2015.

22 CJEU judgment, 6 April 1995, C-241/91P and C-242/91P, Magill.

23 CJEU judgment, 29 April 2004, C-418/01, IMS.

24 EGC judgment, 27 June 2012, T-167/08, Microsoft.

25 Supreme Court judgment No. 1796/2017, 23 November 2017, STS 4263/2017.

26 CJEU judgment, 11 December 2008, C-52/07, Kanal 5.

27 CNMC decision, 31 May 2019, S/DC/0590/16, Dama v. SGAE.

28 CJEU judgment, 19 April 2018, C-525/16, MEO.

29 CNC decision, 25 March 2013, S/0316/10, Sobres de papel.

30 Guidelines on the application of Article 81 of the EC Treaty to technology transfer agreements (2004/C 101/02), Paragraph 213.

31 CNMC decision, 29 June 2017, S/DC/0548/15, Schweppes.

32 For instance, the following judgments ruled in favour of Schweppes, SA: Valencia Provincial Court judgments, 17 June 2016, SAP V 2794/2016 and 28 February 2017, SAP V 1168/2017, Granada Provincial Court judgment, 13 July 2016, SAP GR 1054/2016, Vitoria-Gasteiz First Instance Court No. 7 judgment, 22 February 2017, SJPI 152/2017; and Santander Commercial Court No. 1 judgment, 21 March 2016, SJM S 300/2016.

33 Barcelona Commercial Court No. 8 ruling, 17 May 2016, AJM B 90/2016.

34 Barcelona Commercial Court No. 8 judgment, 9 April 2018, SJM B 3288/2018.

35 Barcelona Court of Appeal, Section 15, judgment, 5 April 2019, SAP B 3376/2019.

36 CJEU judgment, 4 November 1997, C 337/97, Parfums Christian Dior.

37 CJEU judgment, 6 December 2017, C 230/16, Coty.

38 Supreme Court judgment, 22 April 2016, STS 1669/2016.

39 Conclusions of General Advocate Mr Wathelet, 20 November 2014, C 170/13, Huawei.

40 CJEU judgment, 16 July 2015, C 170/13, Huawei.

41 Barcelona Commercial Court No. 5 ruling, 16 February 2018, AJM B 34/2018.

42 Barcelona Commercial Court No. 5 ruling, 22 February 2016, AJM B 22/2016.

43 Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal cooperation agreements, Paragraph 289.

44 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

45 Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings (2008/C 95/01).

46 CNMC decision, 21 June 2016, C/0748/16, Bimbo/Panrico II.

47 Court of First Instance judgment, 17 July 1998, T-111/96, ITT Promedia.

48 EGC judgment, 13 September 2012, T-119/09, Protégé International.

49 Madrid Court of Appeal ruling, 19 May 2017, AAP M 2643/2017.

50 Supreme Court judgment, 22 June 2006, STS 4605/2006.

51 CNMC decision, 13 February 2014, S/0441/12, Pfizer.

52 Commission decision, 15 June 2005, COMP/A 37.507/F3, AstraZeneca.

53 EGC judgments, 8 September 2016, T-472/13, T-460/13, T-467/13, T-469/13, T-470/13 and T-471/13, Lundbeck, confirming the Commission decision, 19 June 2013, AT.39226.

54 EGC judgments, 12 December 2018, T-677/14, T-679/14, T-680/14, T-682/14, T-684/14, T-701/14, T-705/14 and T691/14, Perindopril – Servier, partially annulling the Commission decision, 9 July 2014, AT.39612.