The European Court of Justice (ECJ) has issued a preliminary ruling in the dispute over supply quotas imposed by GlaxoSmithKline (GSK) on prescription drug wholesalers in Greece. In 2000 GSK interrupted the supply of three medicines (Lamictal, Imigran and Serevent) to wholesalers in Greece to eliminate parallel trading, i.e., exporting to higher-priced Member States. In 2001 it resumed supply to the wholesalers, but at volumes sufficient only to meet national demand.
In ruling on GSK’s conduct, the ECJ stated that unless objectively justified, a dominant firm’s refusal to fill orders to restrict parallel trading is an abuse of dominance under Article 82 EC. The court further noted that price regulation by Member States, which is pervasive in the pharmaceuticals industry, is not a sufficient justification for such conduct. The court did recognize, however, that a drug maker is entitled to protect its own commercial interests when confronted with orders that are out of the ordinary in terms of quantity. Such determination, the court added, would be assessed by the national courts in light of the needs of the national market and previous trading relations.