In a statement published on January 31, the Commission said that its third annual survey had found that 11% of antitrust settlements were potentially problematic from an antitrust point of view, compared to 21% when the pharmaceutical sector enquiry was conducted in 2008 to 2009.
That came as the total number of settlements reached 120 in 2011, compared to 24 at the time of the enquiry. “This shows that the Commission's action has not hindered companies from concluding settlements, contrary to fears expressed by certain stakeholders in that respect. At the same time the monitoring exercises may have generally increased stakeholders' awareness of competition law issues, given the lower number of potentially problematic settlements,” said the statement.
The Commission also revealed that it has initiated a third investigation regarding possible competition abuse. The latest case involves the drug Fentanyl, said the Commission: “Rather than competing, the companies entered here into a so-called co-promotion agreement resulting in consumers being deprived of access to a cheaper pain killer medicine. The co-promotion agreement foresaw monthly payments from J&J to its close generic competitor for as long as no generic product was launched in the Dutch market. Consequently, Sandoz abstained from entering the market with generic fentanyl patches for the duration of the agreement. This behaviour, if established, would infringe Article 101 TFEU.”
The two other investigations, which are continuing, involve agreements between Lundbeck and various generic companies concerning the drug Citalopram and between Servier and several generic companies regarding the drug Perindopril.
The Commission can fine companies where it finds evidence of competition abuse. The Court of Justice of the EU recently upheld a finding that AstraZeneca had acted to prevent or delay the entry of generic products.
