Marion Provost

As one of the most heavily regulated industries in the European Union, the pharmaceutical sector has historically been an area of focus for the European Commission and national competition authorities, which have relentlessly used antitrust enforcement as an instrument to help achieve the wider policy objective set for the sector: supporting patients’ access to innovative and affordable medicines. In a context where EU legislation regarding pharmaceuticals is currently under review as part of the Commission’s new Pharmaceutical Strategy for Europe, the sector remains under close scrutiny of competition authorities. In this article, we analyze the most recent developments across the European Union under Article 102 TFEU. While we still wait for the ECJ’s judgment in the Servier case, which creates notable uncertainty regarding the fate of the abuse of dominance allegation, these past 18 months the focus at the EU level seems to have shifted from pay-for-delay and excessive pricing cases to patent strategies (I.) and disparagement of competing drugs as an abuse of dominant position (II.). At the national level, excessive pricing remained at the center of attention, with the Leadiant case in several EU Member States and several appeal proceedings on-going in the UK (III.).

Following a Phase II investigation, the European Commission (the “Commission”) on 6 September 2022 prohibited the acquisition of Grail by Illumina, on the basis that the merger would allegedly stifle innovation in the emerging market for early cancer detection tests based on sequencing (...)

On 1 June 2022, the French Supreme Court (the “Supreme Court”) entirely dismissed the appeal of Janssen-Cilag (“Janssen”) and its parent company Johnson & Johnson against a judgment of the Paris Court of Appeal (the “Court of Appeal”) of 11 July 2019 in the Durogesic® case. However, this (...)

On 10 May 2022, the European Commission (the “Commission”) adopted the final version of the new Vertical Block Exemption Regulation (“VBER”), which will enter into force on 1 June 2022. The new VBER, which replaces Regulation No. 330/2010 of 20 April 2010, is accompanied by a new version of (...)

In a communication of November 2020, the European Commission presented its ‘new Pharmaceutical Strategy for Europe’, the main objective of which is to achieve a strong, fair, competitive, and green pharmaceutical industry, centered on patients’ needs. The Commission’s ambition is to remove existing barriers that prevent patients’ access to innovative and affordable medicines, while facilitating the digital transformation of the industry. In this context, the enforcement of competition rules certainly remains an important instrument for the Commission to achieve its goals and we expect the sector to remain a key priority throughout the European Union. Just in the past year, several important decisions have been adopted and multiple investigations opened, both in antitrust and merger control.

This article has been nominated for the 2021 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The European Court of Justice has confirmed that financial investors can incur parental liability for the anticompetitive practices of portfolio companies, (...)