A Fistful of Euros: EU Competition Policy and Reverse Payments in the Pharmaceutical Industry

European Competition Journal, (2014) Vol. 10 No 3, 2014

Posted: 4 Apr 2015

See all articles by Francesco Montanaro

Francesco Montanaro

Université Paris II - Panthéon-Assas; Bocconi University

Fabrizio Esposito

CEDIS - Nova School of Law

Date Written: December 1, 2014

Abstract

With the Commission’s Decisions in Lundbeck, Johnson & Johnson and Servier, reverse payments in the pharmaceutical sector have recently come into EU Competition Policy’s focus. On the other side of the Atlantic, instead, the decennial jurisprudential debate seems to have arrived at a turning point after the US Supreme Court judgement in Actavis. The US practice shows that antitrust assessment of such agreements can be problematic, as they lie at the intersection point between Competition and Patent Policies. Whilst the Commission has dealt with relatively “easy” cases until now, this article puts forward an interpretative solution for potential “hard” cases by drawing on the US experience. Such a solution has two main advantages. On the one hand, it would reconcile the two policy dimensions embedded in reverse payments. On the other hand, it would enable the Commission to enforce Competition Law taking into account the peculiarities of the European context.

Keywords: Pharmaceutical sector, Agreement, Settlement, PSA, Reverse Payment, Pay-for-delay, Actavis, Lundbeck, Patent

Suggested Citation

Montanaro, Francesco and Esposito, Fabrizio, A Fistful of Euros: EU Competition Policy and Reverse Payments in the Pharmaceutical Industry (December 1, 2014). European Competition Journal, (2014) Vol. 10 No 3, 2014, Available at SSRN: https://ssrn.com/abstract=2589403

Francesco Montanaro (Contact Author)

Université Paris II - Panthéon-Assas ( email )

Paris
France

Bocconi University ( email )

Milano
Italy

Fabrizio Esposito

CEDIS - Nova School of Law ( email )

Portugal

HOME PAGE: http://https://novalaw.unl.pt/en/docentes/fabrizio-esposito/

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