Georges Siotis

Neven and Siotis (2020) analyse the foreclosure of generic by incumbents in the pharmaceutical industry. They argue that, in principle, there is no impediment involved in conditioning market definition and the analysis of dominance and abuse thereof on the nature of the infringement under scrutiny. First, they note that market delineation aims to identify the transactions affected by anticompetitive behaviour. In the case of foreclosure, the transactions are those that would take place if entry were not blocked. Second, the first mover advantage conferred by incumbency is a source of "economic strength" that allows the firm to "behave to an appreciable extent independently of its competitors". Third, foreclosure amounts to altering the market structure that would prevail absent the abuse, thus hindering the growth of competition. Finally, they note that, in the context of generic foreclosure, carrying out the competitive analysis contingent on the nature of the infringement establishes a meaningful link between dominance and its abuse.

Historically, economic crises have often been accompanied by anti-competitive reactions, which have on the whole aggravated the situation, at least in the case of the United States at the beginning of the New Deal. This precedent suggests that such a reaction would be an erroneous response to (...)