AstraZeneca, the UK pharmaceuticals company, has largely lost its appeal against a finding by Europe’s top antitrust watchdog that it abused its dominant position by blocking or delaying generic versions of Losec, its anti-ulcer drug.
The decision by the Luxembourg-based General Court has been keenly anticipated because it could provide clarity on ways in which a dominant pharmaceutical company’s practices, particularly in the intellectual property area, can break EU competition rules.
This is at the cutting-edge of competition law – where there are a number of cases outstanding – and the authorities themselves have admitted that aspects of the AstraZeneca case were novel.
For AstraZeneca, however, it means a week of mixed fortunes. On Tuesday, the group won an initial court victory in the US in a different patent battle, prompting its shares to rise strongly.
There was also some small consolation for the company in Europe – the EU court reduced the fine imposed on AstraZeneca by the European Commission from €60m to €52.5m, because the competition watchdog failed to prove part of its objections.
Commission officials had accused AstraZeneca of making deliberately misleading representations to patent offices in six countries – including Germany and the UK – in order to obtain supplementary protection certificates for Losec.
They also sanctioned the company for making it more difficult to market generic versions of the drug and preventing parallel imports of Losec. This was done by deregistering the Losec capsule’s marketing authorisations in three Scandanavian countries, which made the acquisition of marketing authorisations for generic products more time-consuming.
On Thursday, the court upheld the commission’s finding that the company did make misleading representations to the national patent offices.
But the judges annulled the commission’s decision as far as the deregistrations of the Losec capsule marketing authorisations in Denmark and Norway were concerned, vis-à-vis parallel imports. It said that the commission had failed to prove that those actions were capable of preventing parallel imports of Losec in those two countries. Accordingly, the fine was reduced.
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