INTERNATIONAL: GREECE - UNILATERAL PRACTICES - RESTRICTIONS OF PARALLEL TRADE - PHARMA SECTOR

Hellenic Republic: Recent Greek cases on restrictions of parallel trade in the pharma sector - The application of Sot. Lélos criteria by the NCA and civil courts, and an alternative approach

This article discusses recent Greek cases on restrictions of parallel trade in pharmaceuticals by the Hellenic Competition Commission and Greek Civil courts that implement the two criteria established in Sot. Lélos kai Sia EE CJEU judgment determining when wholesalers’ orders of medicinal products are “out of the ordinary.” It analytically presents the various approaches echoed in the Greek cases on whether the two criteria shall apply to each individual wholesaler involved in the case, or to all wholesalers in an exporting Member State as is Greece, thereby treating quantity limitations as part of a broader distribution system by the dominant pharma company. The article, then, suggests an alternative, two-step, assessment of quantity limitations that considers both limitations of parallel exports and discrimination, first by applying the two Sot. Lélos kai Sia EE criteria to the total quantities supplied at Member State level and second by assessing the non-discriminatory nature of the limitations of the quantities supplied to each individual wholesaler.

I. Introduction 1. The Glaxo saga on parallel trade in pharmaceuticals is a labyrinth of decisions and judgments by the Hellenic Competition Commission (“HCC”), the Greek administrative and civil courts, that culminated in the much-celebrated ruling by the Court of Justice of the European Union (“CJEU”), then Court of Justice of the European Communities (“CJEC”), on the preliminary reference Sot. Lélos kai Sia EE. [1] This article analytically presents enforcement trends at the national level (Greece) by the HCC and Greek civil courts following this CJEU ruling, on restrictions of parallel trade in pharmaceuticals, and discusses how the criteria (on whether the orders of medicinal products placed by wholesalers are “out of the ordinary”) established by the CJEU in said preliminary reference

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Authors

  • Hellenic Competition Authority (Athens)
  • Hellenic Competition Authority (Athens)

Quotation

Vasiliki Brisimi, Sophia Dipla, Hellenic Republic: Recent Greek cases on restrictions of parallel trade in the pharma sector - The application of Sot. Lélos criteria by the NCA and civil courts, and an alternative approach, September 2021, Concurrences N° 3-2021, Art. N° 101286, www.concurrences.com

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