A decade on from its inquiry into the pharmaceutical sector in 2009, on 28 January 2019 the European Commission (EC) issued a report providing an overview of antitrust law enforcement (antitrust and mergers) in the EU from 2009-2017 in the pharmaceutical sector.
The report confirms that effective enforcement of EU antitrust rules in the sector remains a key priority, while recognising the need for enforcement to be complementary to legislative and regulatory action. It highlights the appetite of authorities (both EU and national) to pursue enforcement against not only ‘traditional’ antitrust infringements (e.g. market sharing, prevention of parallel imports, tying/bundling of products etc.) but also practices which had not, until recently, been the object of antitrust scrutiny, such as pay-for-delay and allegedly unfair (excessive) pricing. On the mergers side, a feature of EC enforcement is that it now appears willing to require divestments of pipeline products at earlier stages of development than seen previously (e.g. products which are only in the very early phases of clinical trials and still years from entering the market).
The sector is clearly set to remain under the enforcement spotlight at EU and national level, with excessive pricing practices a particular areas of focus. For business, it remains as important as ever to maintain and review a robust antitrust law compliance programme and to monitor closely the shifting enforcement landscape.