Belgian and Dutch Competition Authorities Aim Again at Pharmaceutical Sector
As if on cue, the Belgian and Dutch competition authorities announced on 24 January 2023 new significant developments with regard to their enforcement activities in the pharmaceutical sector. The Belgian Competition Authority (BCA) indicated that it had imposed a fine of EUR 2,782,808 on Novartis for allegedly abusive behaviour, while the Dutch Competition Authority (Autoriteit Consument en Markt or ACM) said it had begun to investigate the pharmaceutical sector for excessive pricing and illegal bundling practices (see, attached press releases).
The BCA took the view that Novartis abused a collective dominant position which it allegedly holds with Roche in relation to therapies for wet age-related macular degeneration (AMD). Novartis was accused of misleading ophthalmologists, hospitals and public authorities in warning against the off-label use of Avastin®, an oncology medicine of Roche, at the expense of its own, more expensive product Lucentis® which, unlike Avastin®, is indicated for the treatment of AMD.
According to the BCA, the position taken by Novartis is not supported by scientific evidence and is therefore misleading and abusive. The BCA thus emulated in part the proceedings which the French competition authority had pursued against both Novartis and Roche in 2020 in a case that gave rise to a fine of EUR 444 million (see, Van Bael & Bellis Life Sciences News and Insights of 9 September 2020). However, an important difference with the French procedure is that the BCA only fined Novartis and not Roche. Additionally, the fine levied in Belgium is only a fraction of that imposed in France.
The inquiry of the ACM has just started and took the form of requests for information sent to three unidentified pharmaceutical firms which may have charged excessive prices for medicines that are claimed to be innovative, but, according to ACM, may in reality not be the fruit of high development costs and innovation. While the press release of ACM is short on detail, its wording is reminiscent of the excessive pricing case which ACM brought against Leadiant in 2021 (see, Van Bael & Bellis Life Sciences News and Insights of 20 July 2021).
ACM declared that it would also investigate illegal bundling practices of products and services. It added that its investigation purposefully keeps the pharmaceutical sector in its crosshairs.