In the second reference to the European Court of Justice arising out of GSK’s policy of selling medicines directly to Greek hospitals and pharmacies the ECJ has held (Joined Cases C-468/06 to C-478/06 Sot. Lelos kai Sia and Others) that an undertaking which occupies a dominant position on the relevant market for medicinal products is abusing its dominant position contrary to Article 82 EC if, in order to stop parallel exports, it refuses to meet “ordinary orders” from wholesalers. The ECJ held that it is for the national courts to ascertain whether orders are “ordinary” in the light of both the size of those orders in relation to the requirements of the market of the country of intended export and the previous relations between the dominant undertaking and the wholesalers.
In the first reference the ECJ had decided that it had no jurisdiction to answer the questions referred to it by the Greek Competition Commission since the latter was not a court or tribunal within the meaning of Article 234 EC (Case C-53/03 Syfait and Others). The matter then went back to the Greek Competition Commission which found that GSK had infringed the Greek equivalent of Article 82 EC in respect of the refusal to supply one of GSK’s products during a temporary period in which the policy was applied. GSK appealed to the Appeal Court of Athens, which made the second reference.
The ECJ considered various submissions by the Greek wholesalers (appellants in the main Greek proceedings), GSK, the Italian and Greek Governments and the European Commission, the most interesting of which related to the fact that pricing in the EU pharmaceutical market is regulated in a fragmentary fashion. The ECJ held that the degree of price regulation in the pharmaceuticals sector cannot excuse the application of Article 82 EC but that “a producer of pharmaceutical products must be in a position to protect its own commercial interests if its is confronted with orders that are out of the ordinary in terms of quantity. Such could be the case, in a given Member State, if certain wholesalers order from that producer medicines in quantities which are out of proportion to those previously sold by the same wholesalers to meet the needs of the market in that Member State”.
The judgment can be seen, together with the Bayer/Adalat case (Joined Cases C–2/01P and C–3/01P Bundesverband der Arzneimittel-Importeure v. Bayer and Commission of the European Communities – though that case was decided under Article 81 EC), as permitting (depending of course on the facts) policies which have as their object the supply of products to wholesalers in accordance only with the requirements of the national market.