Pursuant to a complaint in 2008 by Euris (a French company specialising in customer relations management (CRM) software for the pharmaceutical industry), the French Competition Authority (FCA) examined whether or not market leader Cegedim was entitled to refuse to sell access to its widely-used CRM medical database to pharmaceutical laboratories using Euris software while selling to laboratories using Cegedim’s own and other competing CRM management software.
This behaviour lasted for nearly six years, during which laboratories were diverted from using Euris software. Euris complained that as a result, it lost all opportunities to develop its market share and lost 70% of its customers between 2008 and 2012.
To complicate matters, the French-law prohibition against refusals to sell between professionals was repealed in 1999. Nevertheless, such refusals to sell may in certain circumstances give rise to liability if they are discriminatory, an abuse of a dominant position or implemented with an intention to harm.
In the present case Cegedim justified its refusal to sell its database of medical professionals to laboratories using Euris CRM software by the existence of infringement actions it brought against Euris starting on October 19, 2007. Cegedim’s claims against Euris were finally dismissed only on April 29, 2014 by decision of the Versailles Court of Appeal. However, in any event, this justification was rejected by the FCA because, in keeping with precedent, the FCA reaffirmed that a litigious situation may not justify the implementation of anti-competitive practices.
In its decision of 8 July 2014, the FCA found that while Cegedim held a dominant position (78%) of the market for CRM databases destined for pharmaceutical laboratories and their medical sales representatives.
The question presented was then whether or not the refusal to sell access of Cegedim’s database to Euris customers was a discriminatory abuse of a dominant position as Euris contended.
In support of its position, Euris argued that Cegedim’s CRM database was an essential and indispensable facility, access to which, in accordance with the EU essential facilities doctrine, must be provided at a reasonable price to all competitors.
The FCA agreed, noting in addition that Cegedim’s database would be extremely costly and difficult to reproduce. It imposed a penalty of € 5.76 million on Cegedim, "having regard to the time period during which competition was obstructed, from April 2007 to April 2013, to the seriousness of the practice and the significance of the damage to the economy."
Cegedim has not yet indicated whether it will appeal the decision before the Court of Appeal of Paris.
It is worth noting that Euris has to date not been compensated for its loss, as the entire penalty in the present case will be collected by the State. Euris will have to file a civil suit in order to seek compensation.