PRACTICES SUSPECTED OF HINDERING THE PENETRATION OF GENERICS
Ombline Ancelin (Partner, Simmons & Simmons)
Over the last ten years, there has been an increase in cases of anti-competitive practices suspected of hampering the development of generics, in particular due to the increased promotion of generics and the expiry of many patents. As a result, competition authorities are paying increasing attention to these cases: many decisions have been issued in Europe and worldwide, but the line between competition on the merits and abusive practices is not always clear. Sanctioned practices are nowadays mainly unilateral practices involving the identification of a dominant position on a market and an abuse (the Commission’s choice between an effects-based or a subject-based approach is not always clear), and can take various forms. For example, aggressive commercial policies - switching to direct sales to pharmacies, encouraging the stockpiling of originator medicines at the time of generic entry, targeting of prescribing pharmacies, tying, predatory pricing, etc. - are not always justified. - are not prohibited per se but may reveal an anti-competitive foreclosure strategy.