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CJEU on the assessment in terms of antitrust law of pay-for-delay agreements between the holder of pharmaceutical patents and the manufacturers of generic medicines – Generics (GB), GSK et al. vs. Competition and Markets Authority

Posted: March 26th, 2020

CJEU, judgment dated January 30, 2020 – Case C-307/18

According to the CJEU, pay-for-delay agreements between the holder of pharmaceutical patents and manufacturers of generic medicines have the object of restricting competition and, thus, violate Art. 101 TFEU if the assets transferred to the manufacturers of generic medicines do not have any explanation other than omitted competition and the agreement is not proven to promote competition. In spite of an existing patent protection, a relationship of potential competition may exist between the parties.

Furthermore, the conclusion of several pay-for-delay agreements may constitute an abuse of a dominant market position pursuant to Art. 102 TFEU if the effects restricting competition that result from such agreements exceed those of the individual agreements. In addition to the originator medicine, generic medicines are also part of the relevant product market, even if they could not legally enter the market before the patents expire, as long as it is possible for the manufacturers of generic medicines to quickly enter the market with sufficient strength to be a serious counterbalance.

The entire report can be read here.

Reported by Anna Giedke and Stefan Lieck, Bardehle Pagenberg

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