In a decision dated 14 May 2013 (decision no. 13-D-11), the French Competition Authority (the “Authority”) fined a pharmaceutical manufacturer €40.6 million for having set up among healthcare professionals a disparagement strategy against the manufacturers of competing generics. The Authority found that this practice was an abuse of a dominant position under Articles L. 420-2 of the Commercial Code and 102 of the Treaty on the Functioning of the European Union (“TFUE”).
Pursuant to that decision, the pharmaceutical group had, through the press and a network of sales representatives, spread misleading statements shedding doubt on the efficiency and safety of generic competitors, thereby promoting their own product (for which patent protection had run out) and hindered the entry into the market by the relevant generics manufacturers.
The Authority reiterated the conditions under which disparagement can constitute an abuse of a dominant position.
Any disparagement by a firm in a dominant position, while possibly constituting unfair competition against its competitors and thereby incurring the liability of the firm, does not necessarily constitute an abuse punishable under Article L. 420-2 of the Commercial Code and Article 102 TFUE. For disparagement to qualify as abuse of a dominant position, a connection must be established between the dominance of the firm and the disparagement.
In the present case, in establishing the existence of a connection between the firm’s dominance and the disparagement, the Authority notably found that, due to its dominant position, the firm enjoyed strong recognition and trust among market players, which significantly heightened the impact of its statements.