A fistful of Euros : EU competition policy and reverse payments in the pharmaceutical industry

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.