Bofar, a wholesaler-exporter, which does not sell any products in Belgium, but sells only to importers in other Member States of the EU, was faced with the discontinuation or drastic decrease in deliveries by a number of pharmaceutical companies (Alcon-Couvreur, AstraZeneca, Bayer, Biogen Idec Belgium, Boehringer Inghelheim, Bristol Myers Squibb Belgium, Janssens-Cilag Belgium, Pfizer and Serono Benelux).

As a result, it lodged a complaint with the Competition Prosecutors for alleged concerted practices between those companies to eliminate parallel trade as well as for an alleged abuse of dominance in the form of a refusal to supply. Bofar requested interim measures (combined with a penalty payment) ordering the companies to continue supplies at least in proportion to the volumes that had been supplied in the past.

Under Belgian competition law, interim measures can only be imposed if the complainant has a direct and immediate interest; a prima facie infringement of the Competition Act is established; and there is an urgent need to avert a situation that could cause serious, imminent and irreparable harm to the company whose interest is affected.

The Competition Prosecutor ruled that the existence of a prima facie infringement was not established. As far as the alleged concerted practices are concerned, the Prosecutor, drawing upon European case law, held that the parallel behaviour of the pharmaceutical companies could not be qualified as concerted practices due to the fact that their respective methods of supplying exporters differed in a significant way and were introduced separately over a very long time span (2001-2007).

As to the alleged abuse of dominance, the Prosecutor first recalled that a mere refusal to supply is not sufficient to conclude to a violation of competition law as proof of the dominant company’s aim to exclude actual or potential competitors and to reinforce its own market position is also required, as well as the absence of an objective justification. The Prosecutor then analysed the global economic context. He first explained that Bofar, which is not active on the Belgian market, does not have any public service obligation in the form of minimum stock requirements and only buys products with significant price differences compared to other countries. Furthermore, the Prosecutor emphasised that the market for pharmaceutical products is characterised by price regulation in light of national consumption as well as the budgetary balance of the health insurance system and that a correct application of competition law requires the utmost attention to existing price regulations in force. Therefore, by drawing upon the conclusions of Advocate General Jacobs in the Syfait case, the Prosecutor ruled in its decision of 26 March 2008 that a company which, in light of the protection of its commercial interests, refuses to sell products that are subject to price regulation to a company that does not have selling activities on the Belgian market, cannot be qualified as an abuse.