Member Article

On 16 September 2008, the European Court of Justice (ECJ) gave a preliminary ruling in joined cases C-468/06 - C-478/06 specifying that a refusal by a pharmaceutical undertaking that holds a dominant position on a relevant pharmaceutical market to supply wholesalers with a view to impeding parallel export of such wholesalers from one Member State to other Member States constitutes an abuse of a dominant market position under Article 82 of the EC Treaty. 

This ECJ ruling is passed in proceedings between the pharmaceutical company GlaxoSmithKline (GSK) and Greek wholesalers exporting pharmaceutical products to other Member States where prices for medicines are higher. The dispute arose when GSK started limiting for the wholesalers the amount of the supplied products to meet national demands but not enough for exporting. Such conduct of GSK was brought before the ECJ for assessment. The Greek Competition Commission asked to clarify whether pharmaceutical supply quotas could constitute an abuse of a dominant position under Article 82 of the EC Treaty. In 2001, Advocate- General Jacobs stated in his opinion that supply restrictions can be justified to protect commercial interest of the supplier, even if they intend to impede  parallel export. However, the ECJ refused the case on procedural grounds. In November 2006, the Athens Appeal Court applied to the ECJ for a preliminary ruling on the same questions. Now the ECJ has explained that where a dominant pharmaceutical company refuses to supply medicines to wholesalers with a view to impede parallel export, it should be recognised as abusing its dominant position. Exceptions are only allowed when a dominant pharmaceutical company provides objective justifications of its conduct. In this case, the State intervention in fixing prices for pharmaceuticals at national level was not recognised as a justifying and conclusive circumstance.

 

Link to article