In a decision issued by the Court of Justice of the European Union on December 6, 2012 (case no. C-457/10 P), the Court confirmed the holding of the General Court (dated July 1, 2010, in case no. T-321/05) stating, for the first time, that a claim based on abuse of dominant position can be enforced within the pharmaceutical sector. Indeed, the pharmaceutical market was previously exempt from enforcement of this kind of unfair competition claim in order to promote research and innovation.

In this case, the Court of Justice sanctioned a multinational corporation that had submitted misleading information to different national patent offices in order to obtain supplementary protection certificates for its drug which is used for the treatment of gastrointestinal conditions.

In particular, the panel of judges specified that establishing abuse of dominant position requires awareness of the misleading nature of the information provided to the patent office. The mere communication of false information, without bad faith, is not per se unlawful.

Referring to the instant case the Court further pointed out that the fact that the misleading representations did not lead to the issue of SPCs in some countries does not mean that the conduct cannot be considered abusive in those countries as well.

As a consequence of the above, the existence of abuse is not effected by the fact that the strategy of using misleading information was not ultimately successful. On the contrary seeking to mislead the patent office alone can be considered to be sufficient grounds to establish a case of abuse of dominant position, without the need for any assessment of the actual fruitfulness of the abusive behavior.