First of All, Do No Harm: New Directions in EU Antitrust Enforcement Regarding Pharmaceuticals

The recent Paroxetine and CMA v. Pfizer/Flynn cases confirm the EU approach to pay-for-delay, respectively establish a workable approach to excessive pharmaceutical pricing at least regarding non-innovative drugs. This enables antitrust consolidation regarding further such cases. New directions in the application of EU antitrust law to the pharmaceutical sector can now be identified as a next step. These include an increased focus on biosimilars, the pursuit of excessive pricing cases where patents and regulatory exclusivity are involved, and scrutinizing the confluence of pharmaceuticals with digital services. This reflects the need to balance competition and innovation, and more broadly, the need for speed in order to effectively preserve fair and competitive markets.

By Ilan Akker & Wolf Sauter¹

I. INTRODUCTION

As parting shots across the waters to and from the UK, the recent Paroxetine and CMA v. Pfizer/Flynn cases respectively affirm the EU approach to pay-for-delay and establish a workable approach to excessive pharmaceutical pricing. We will first look at these two cases. Next, we briefly examine relevant peculiarities of pharmaceutical markets, and outline the history of EU antitrust enforcement in that sector. This sets the scene for identifying the new directions currently developing in EU antitrust enforcement with regard to pharmaceuticals. We conclude by exploring what this means for firms and antitrust authorities. In summary: first of all, do no