On 17 July 2025, Commercial Court No. 3 of Barcelona dismissed a follow-on damage claim brought by the Navarra Health Service on 15 July 2024 against Lundbeck España S.A.U. The claim concerned six “pay-for-delay” agreements reached by H. Lundbeck A/S and the generic manufacturers Merck, Arrow, Alpharma and Ranbaxy in 2002 and 2003 concerning the antidepressant active ingredient citalopram. Among these generic companies, Merck and Ranbaxy (now Sun Pharma Laboratories) appeared as interested parties in the proceedings before the Barcelona court.
The Judgment expressly stated that the claimant based his claim “entirely” on the facts and legal assessment made by European Commission in its Decision of 19 June 2013 (Case AT.39266-LUNDBECK), which declared the agreements contrary to Art. 101 of the Treaty on the Functioning of the European Union (TFEU).
A summary of said Decision was published in the Official Journal of the European Union on 7 March 2015. The Decision was upheld in its entirety by the General Court in its Judgment of 8 September 2016 and subsequently by the Court of Justice in its Judgment of 25 March 2021.
The defendant and the interested parties argued that the follow-on claim should be dismissed in its entirety due to the expiration of the statute of limitations. To determine whether the claim was indeed time-barred, the Court began by analysing the starting point, or dies a quo, of the limitation period.
The Court held, in line with the ECJ Judgment in the Heureka case, that the publication of the summary of the EC Decision in 2015 provided the injured party with all the necessary information to bring the damage claim, regardless of whether the Decision was final. The Court underscored that, unlike decisions by the national competition authorities (such as the CNMC), European Commission decisions enjoy a presumption of legality and are binding upon national courts. Consequently, national courts must not rule against such decisions even when an appeal is pending.
This distinction established by the Court between the legal effects of decisions issued by national bodies and those issued by the European Commission was subsequently confirmed by the ECJ in its Judgment of 4 September 2025 in the Nissan case (C-21/24).
The Court also noted that the claimant could have interrupted the running of the limitation period by simply sending a formal letter to the defendant. However, the Navarra Health Service failed to do so, sending its first extrajudicial request in 2022, 7 years after the publication of the EC Decision summary. As a result, the Court dismissed the damages claim as time-barred.
Another important aspect raised by this matter is the allegation on which the plaintiff’s claim is based: that Lundbeck transitioned patients from citalopram to its second-generation drug, escitalopram, thanks to the pay-for-delay settlement (known as ‘switching’ or ‘evergreening’). This is particularly significant because the majority of the damages claimed by the Navarra Health Service were stemmed from this alleged “switching”. It should be noted that “Switching” or “evergreening” refers to a conduct that may be classified as an abuse of a dominant position and would therefore fall under Art. 102 TFEU, rather than Art. 101 TFEU. In our view, the EC Decision did not refer to the “switching” strategy alleged by the claimant nor did it assess the reported and investigated facts from the perspective of Article 102 TFEU, although it could have done so if any infringement had been committed. While the Court did not formally rule on every aspect of the merits, it nonetheless clarified that the EC Decision declared an infringement only of Art. 101 TFUE and in relation to agreements concerning exclusively citalopram. .
Finally, it should be noted that the Navarra Health Service has filed an appeal against the Judgment issued by Commercial Court No. 3 of Barcelona. Consequently, the decision is not yet final.
Below is a link to the ruling on the CENDOJ (Centro de Documentación Judicial -Judicial Documentation Centre) public access portal: https://www.poderjudicial.es/search/AN/openDocument/c6767d1f9c950922a0a8778d75e36f0d/20251110.
Sun Pharma Laboratories, which appeared as interested party in the proceedings, was represented by the authors of this contribution.