Abuse of dominance in the pharmaceutical sector under EU competition law

ABUSE OF DOMINANCE IN THE PHARMACEUTICAL SECTOR : A GENERAL OVERVIEW OFFERED BY THE EUROPEAN COMMISSION

Paul Csiszár (DG COMP)

The pharmaceutical industry is a very special one, although all industries claim that they are unique. But being unique should not be an excuse to escape antitrust scrutiny. The guiding principle driving EU competition law remains to avoid consumer harm. This specifi city of the pharmaceutical sector is properly taken into account, especially in light of the EU competition law modernisation which has strengthened caseby- case economic assessments in recent years.

However, one should not fight yesterday’s battles and instead should look ahead to anticipate where the next battles will be. So what should enforcers be excited about ? The response is : less competition and less innovation. Any conduct delaying or blocking innovative products harms consumers under Articles 101 and 102 TFEU, since innovation is probably the main source of consumer welfare. In this context, a certain number of readings can be recommended. One should probably start by reading the AstraZeneca judgements of the EU courts. Indeed, these are the only antitrust judgements by EU courts in the pharmaceutical sector in the past 15 years. This should therefore be one of the primary sources to assess antitrust issues in pharmaceutical markets. All commentators are therefore invited to read these judgements very carefully.