European Pharmaceutical Antitrust after Groupment des Cartes Bancaires – Time to Rethink the Approach to Pay For Delay Settlements?

(by Sven Gallasch) Over the last year the European Commission has stepped up its enforcement efforts against pay for delay settlements[1]. In June 2013 they imposed a fine for the first time totalling €152 million, on a brand company (Lundbeck) and a number of generic companies for delaying the market entry of a cheaper generic version of Citalopram, an antidepressant drug. In subsequent decisions, the Commission imposed a fine of €16 million on Johnson & Johnson and Novartis for the delay of a generic pain-killer based on Fentanyl, and a fine in excess of €427 million on Servier and five generic companies in relation to the delay of generic version of the blood pressure drug Perindopril in July 2014 (see earlier blog post).

Although the full decisions are not yet in the public domain, it has become evident from the appeals against the Lundbeck decision that the Commission regards these pay for delay settlements as restrictions by object; they are assumed to be illegal without any effects analysis.[2] This blog post suggests that such an approach could prove costly for the Commission in the long run.