The European Commission and UK Competition and Markets Authority (CMA) have both opened new investigations into alleged abuses of dominance by pharmaceutical companies. These cases show the continuing focus by competition regulators in the EU on the healthcare sector. They also show once again that customers and competitors of dominant companies may be able to use competition law to protect their businesses against anti-competitive practices.
The Commission announced the opening of its investigation on 15 May 2017. It is concerned that Aspen Pharma may have engaged in abusive excessive pricing concerning five cancer medicines. This is the Commission's first investigation into concerns about excessive pricing practices in the pharmaceutical industry.
In particular, the Commission will investigate information alleging Aspen has imposed significant and unjustified price increases of up to several hundred percent. For example, the Commission has information alleging that, to impose such price increases, Aspen threatened to withdraw the medicines in question in some EU member states and did so in certain cases.
The CMA announced on 23 May 2017 that it had issued a statement of objections (preliminary statement of case) to the pharmaceutical company Merck Sharp & Dohme Limited (MSD). The CMA alleges that MSD operated an anti-competitive discount plan for its medicine Remicade.
Remicade is the brand name for MSD’s version of a biological medicine called infliximab, which is used primarily in the treatment of patients with gastroenterology and rheumatology conditions such as Crohn’s disease, ulcerative colitis and rheumatoid arthritis. The CMA alleges that the discount plan for Remicade likely restricted competition from “biosimilar” versions of infliximab new to the market.