The European Commission (Commission) has recently conducted unannounced inspections at the premises of a company active in the vaccines sector. The Commission is concerned that the company may have violated the prohibition on the abuse of a dominant market position of Article 102 Treaty on the Functioning of the European Union. It is specifically concerned by so called exclusionary practices that may amount to anticompetitive disparagement.
The Commission has previously concluded two investigations into alleged anticompetitive disparagement in the cases of Teva Copaxone (case AT.40588) and Vifor (AT.40577).
Anticompetitive disparagement
Anticompetitive disparagement is a form of exclusionary abuse under Article 102 TFEU as it is aimed to exclude competitors from entering or effectively competing in the relevant market. The conduct involves the discrediting of (cheaper) competing products, for example through misleading information on the safety, efficacy and therapeutic equivalence.
The Commission fined Teva in 2024 for a systematic disparagement campaign against a competing medicine despite relevant health authorities having approved the competing medicine and confirmed its safety, efficacy and therapeutic equivalence. It found that the campaign targeted key stakeholders, such as doctors and national decision-makers for pricing and reimbursement of medicines. According to the Commission the strategy had the objective of slowing down or blocking the entry of a competing medicine in several Member States.
In its investigation into Vifor in 2024 the Commission accepted commitments of the company in relation to an alleged disparagement campaign of a competing medicine. The campaign involved the dissemination of potentially misleading information about the safety in the competing medicine. The commitments last for 10 years, involving:
- a comprehensive and multi-channel communication campaign to rectify and undo the effects of the potentially misleading messages;
- a commitment to abstain from engaging in external promotional and medical communications about the competing product with information not based on label of the competing product itself or clinical trials specifically designed to compare the products; and
- a commitment to implement measures and safeguards to ensure compliance, such as trainings of staff.
What’s next?
The current investigation reflects the commitment of the Commission and national competitive authorities to address competition concerns in the pharmaceutical market. For dominant pharmaceutical companies the investigation underscores the close scrutiny on possible anticompetitive, such as exclusionary, behaviour. For (non-)dominant companies the investigation is a reminder of the possibility to file a complaint at the Commission and/or national competition authorities if dominant undertakings (aim to) exclude them or their products from the market.
SOLV has broad expertise in competition law and the application thereof on the pharmaceutical and healthcare sector. It regularly advises both dominant and non-dominant undertakings on the application of Article 102 TFEU. For questions, you can contact Kim van Haastrecht or Jelle van den Biggelaar.
