French Supreme Court rejects appeal and upholds competition law decision against Janssen Cilag for strategies against entry of generic competitors

• 08/06/2022
• Articles

On 1 June 2022, the French Supreme Court (Cour de cassation) upheld the judgment of the Paris Court of Appeal, which in turn largely upheld the 2017 decision of the French Competition Authority (FCA) to impose fines of EUR 25 million on Janssen Cilag and its parent company Johnson & Johnson (Janssen Cilag) for abusing its dominant position (see judgment here (in French)).  Specifically, the FCA sanctioned the parties for abusive conduct intended to hinder competition from generic versions of Janssen Cilag’s Durogesic® products (see Van Bael & Bellis Life Sciences Insights and News Alert of 26 December 2017).  In the earlier appeal, the Paris Court of Appeal reduced the amount of the fine to EUR 21 million because the FCA made an erroneous interpretation of Janssen Cilag’s intervention with the French Health Authority (AFSSAPS) but upheld the rest of the decision.

Janssen Cilag filed a further appeal, challenging the Paris Court of Appeal’s judgment.  One of Janssen Cilag’s arguments was that, at the time of the infringement, the existing case law was not sufficiently clear that intervention before a health authority concerning a generic competitor would constitute an abuse of a dominant position.  For example, Janssen argued that, based on the Commission's AstraZeneca decision, the mere fact that a pharmaceutical company submits a request or claim to an administrative authority that is fully competent to assess the merits of the claim and thus exercise independent control, under conditions that do not involve any provision of misleading factual information, could not be considered to have an anti-competitive effect.

The Court dismissed this argument explaining that the prohibition of the practices was reasonably foreseeable for a company such as Janssen Cilag.  It also upheld the Paris Court’s judgment that the novelty of an anti-competitive practice, the various possible forms of which, given their variety and complexity, are not exhaustively listed either in European Union law or in domestic law, does not prevent it from being sanctioned.

Janssen Cilag also claimed that the FCA lacked jurisdiction to assess its intervention before the French Health Authority.  Again, this argument was rejected by the French Supreme Court, recalling the Hoffmann-La Roche case which addressed the respective competences of health and competition authorities.  In line with this case law, the Paris Court concluded that it is allowable for a competition authority to assess the legal framework in which a competition law infringement occurs.  The French Supreme Court agreed and confirmed that the Paris Court of Appeal had not disregarded the powers of French Health Authority, nor the separation of powers, nor the case law of the European Court of Justice on the respective competences of health and competition authorities.

The French Supreme Court also rejected arguments that the FCA had committed errors of law as to the assessment of the regulatory framework in which the interventions with the French Health Authority occurred.