On 23 May 2023, Joost Haans from our Life Sciences team attended the EU Pharma Law Forum in Brussels where he participated in the Competition Law in Pharmaceuticals session. Some key points from the conference include:
- The European Commission will look more critically at disparaging practices (i.e. unsupported negative comments) against (mainly generic or biosimilar) competing products. The concern is that incumbent dominant manufacturers have a lot of influence on how HCPs perceive products, and any negative or suggestive comments about competing products may hinder market entry by these products. The Commission currently has two investigations pending in relation to this (against Teva and Vifor).
- The Commission also continues to look critically at misusing patent procedures aimed at delaying market entry, such as the so-called “divisional game” where (divisional) patents are filed and withdrawn making it very difficult for generics to follow the correct procedures to enter the market. Such behaviour will attract the regulator’s attention particularly where this concerns weak or secondary patents. The Commission will also look at blocking patents that are not exploited but merely used to prevent innovation. In its assessment the Commission will distinguish between patents that are the result of a company’s own R&D and patents that have been acquired.
- Following the Illumina/Grail case, in the last 18 months the European Commission looked at around 40 cases on the basis of Art. 22 (EU Merger Regulation). Under Art. 22, EU Member States can refer a concentration to the European Commission for merger control review even if the parties to the transaction do not meet the filing thresholds at EU level or in any of the EU Member States. Around 30% of these cases were looked at ex officio by the Commission, and around 70% came from third party complainants, reports from national competition authorities, or from the merging parties who were concerned that their case would fall under Art. 22. The majority of these cases are in healthcare and big tech.
- The European Commission did not ask for and was also surprised by the Towercast judgment where the European Court of Justice ruled that an acquisition falling below the filing thresholds may constitute an abuse of a dominant position and thus a competition law violation. The Commission therefore does not currently have a policy on if and how it will use this judgment, but it was mentioned that the Commission is of course bound by this judgment and therefore must take it into consideration. The Commission believes it is most likely that it may use this judgment in the context of “killer acquisitions” or where an acquisition falls within a broader pattern by a dominant company of anti-competitive behaviour.