Month: November 2024

Antitrust and digital regulations update – October 2024

EU antitrust updates

European Commission Fines Teva EUR 462.6 Million Over Patent System Misuse and Disparagement Campaign

On 31 October 2024, the European Commission imposed a EUR 462.6 million fine on Teva for abusing its dominant position to delay competition against its multiple sclerosis treatment, Copaxone. The Commission found that Teva misused patent procedures to extend Copaxone’s exclusivity and disseminated misleading information about a competitor’s product to hinder its market entry and uptake.

Teva, a global pharmaceutical firm, held a basic patent for the active ingredient glatiramer acetate in Copaxone, which expired in 2015. The Commission’s investigation revealed that Teva extended Copaxone’s market exclusivity in multiple EU countries through two main strategies:

The Commission determined that Teva’s actions collectively violated Article 102 of the Treaty on the Functioning of the European Union (TFEU), marking the first time the Commission has fined a company for these specific practices. Teva’s conduct may have prevented price reductions, impacting public health budgets. Following inspections of Teva’s facilities in 2019, the Commission opened proceedings in 2021 and issued a Statement of Objections in 2022.

  1. Patent Manipulation: As its original patent neared expiration, Teva filed multiple divisional patent applications, creating a web of secondary patents focused on production processes and dosage. Teva used these patents to initiate injunctions against competitors. When it appeared likely that these patents would be revoked, Teva withdrew them, avoiding formal invalidity rulings and prolonging legal uncertainty for rivals.
  2. Disparagement Campaign: Teva launched a systematic campaign to undermine a competing glatiramer acetate product, spreading misleading information about its safety and efficacy despite approval from relevant health authorities. This campaign targeted key stakeholders, including healthcare professionals and policymakers, to slow or block market entry in several EU states.
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Dear Santa, I’d like to ask a consistent framework for Article 102 TFEU

On 31 October, a couple of months before Christmas, I had already sent my Santa letter to the European Commission in response to the public consultation on the Draft Communication from the Commission—Guidelines on the application of Article 102 of the Treaty on the Functioning of the European Union to abusive exclusionary conduct by dominant undertakings (Draft Guidelines)—see full version below. The background is the ongoing debate on whether competition law should incorporate non-market values, such as fairness, sustainability or even plurality and democracy, which has prompted an existential crisis that appears to have become chronic. In particular, there seems to be a disconnect between recent case law of the Court of Justice of the European Union (CJEU) and the Commission’s enforcement approach. Regarding Article 102 TFEU, while the former clearly leans towards making the relative efficiency of competitors of the dominant undertaking the criterion for abusive conduct (e.g., C-377/20 Servizio Elettrico Nazionale, para 101; C-48/22 P Google Shopping, para 164; C-240/22 P Intel RENV, para 181), the Commission insists on building cases grounded in fairness concerns (e.g., AT.40437 Apple—App Store Practices (music streaming)).

Submission-to-consultation-on-draft-exclusionary-abuse-guidelines-Pablo-Solano-DiazDownload
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