In its ruling on 23 January 2018, the ECJ decided case C-179/16 that an agreement between the pharmaceutical companies Roche and Novartis to reduce the use of the medicinal product Avastin in the field of ophthalmology and increase the use of the medicinal product Lucentis constitutes a restriction of competition ‘by object’.
Although one drug was approved for the treatment of eye diseases and the other for tumours, both are equally effective in ophthalmological treatments. Avastin is significantly cheaper than Lucentis and has been used for years to treat age-related macular degeneration.
The starting point was a fine of more than €90 million imposed by the Italian competition authority on the grounds that the two pharmaceutical companies had reached an agreement to create a misleading distinction between Avastin and Lucentis.
The Court ruled that there is a restriction of competition ‘by object’ if two companies marketing two competing medicinal products make an agreement to disseminate misleading information to the EMA, health professionals and the public about the adverse effects of one of those products with the aim of reducing competitive pressure on the other product.
Article 101 TFEU prohibits all agreements between undertakings which may affect trade between Member States and which may prevent, restrict or distort competition within the internal market.