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Competition enforcement in pharma: 26 antitrust decisions adopted between 2018 and 2022

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Currently, 30 antitrust cases are under investigation in the pharmaceutical sector

The European Commission (EC) and EU national competition authorities (NCAs) together adopted 26 “intervention” decisions relating to antitrust misconduct in the pharmaceutical sector in Europe between 2018 and 2022, at an average of five per year, the latest report published by the EC revealed.

According to global law firm Ropes & Gray, the average number of antitrust decisions was just over three per year during the period covered in the EC’s previous report (2009-2017).

There were 17 antitrust decisions between 2018 and 2022 involving finding an infringement, and nine accepting binding commitments.

Vincenzo Volpe, an associate in the Ropes & Gray antitrust team, said the majority of such decisions were adopted by competition authorities in the UK, Romania, Belgium, and Spain.

However, the highest fines (over £378 million) were imposed by the French FCA in a single case (Avastin-Lucentis).

According to the report, half of the antitrust investigations were brought under the abuse of dominance laws, such as implementing excessive price increases without justification, patent misuse, and threatening supply discontinuation to achieve higher profits.

Other types of conduct investigated by the EC and NCAs during the relevant period include anticompetitive agreements such as pay-for-delay (eight per cent), cartels (31 per cent) and vertical agreements (restrictions on promotion and sale of products from competing manufacturers) (11 per cent).

Presenting his key takeaways from the report, Volpe said: “Competition enforcement in the pharmaceutical sector remains a high priority for the Commission and NCAs.”

Innovation in pharmaceuticals and high-priced pharmaceuticals are the two key factors that motivated the agencies’ focus on this industry.

Further, Volpe suggested that transactions involving innovative medicines that treat rare diseases, and/or address an unmet medical need are likely to attract scrutiny, and the EC will consider “both clinical and pre-clinical R&D as potential sources of competitive pressure for existing medicines as well as for other medicines in development” in carrying out its analysis.

Currently, 30 antitrust cases are under investigation in the pharmaceutical sector, Volpe revealed citing the EC report.

“Although the UK has withdrawn from the EU, data from the report shows that the CMA continues to be among the most active competition enforcers in the pharmaceutical sector,” he added.

Click here to read the EC report titled ‘Update on Competition Enforcement in the Pharmaceutical Sector (2018-2022)

 

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