CJEU Dismisses AstraZeneca’s Abusive Patent-Misuse Appeal

On Dec. 6, 2012, the Court of Justice of the European Union (CJEU) dismissed an appeal by AstraZeneca against a General Court decision largely upholding the European Commission’s decision that AstraZeneca had abused its dominant position by preventing the marketing of certain generic pharmaceutical products. The CJEU confirmed that AstraZeneca had abused its dominant position by deliberately making misleading representations to patent offices and requesting deregistrations of marketing authorizations to further delay market entry for generics and to restrict parallel imports. AstraZeneca also failed in its appeal to have its fine reduced. This is the first judgment of the CJEU concerning an abuse of a dominant position in the pharmaceutical sector. The Commission welcomed the judgment, emphasizing that it provides clarification on a number of key issues relating to market definition, dominance and the concept of abuse under EU competition law. The judgment confirms that in certain circumstances, the misuse of regulatory procedures can constitute an abuse of a dominant position under EU competition law. The Commission is currently investigating generics delay cases against other pharmaceutical companies, including Novartis, Johnson & Johnson, Servier and Lundbeck. The CJEU’s judgment is available here.

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