Short Reads

The ACM follows EU approach in its first pharmaceutical merger

The ACM follows EU approach in its first pharmaceutical merger

The ACM follows EU approach in its first pharmaceutical merger

07.02.2019 NL law

The Dutch Authority for Consumers and Markets (ACM) recently reviewed its first merger between two pharmaceutical companies. In its conditional clearance of Aurobindo's acquisition of certain European Apotex assets, the ACM followed the European Commission's approach in assessing the merger's impact on competition. Companies will welcome the news that pharma mergers will be reviewed in a similar fashion, irrespective of whether the ACM or the European Commission conducts the review.

The deal, worth EUR 74 million, involved India's Aurobindo acquiring Canadian Apotex's commercial operations and some of its supporting infrastructure in Poland, Czech Republic, Spain Belgium and the Netherlands. In the Dutch market, Aurobindo predominantly supplies prescription drugs to pharmacies, whereas Apotex's focus is on over-the-counter retail sales through drugstores and supermarkets (a substantial portion of which is private label sales). This diverging focus of the respective businesses was an important factor in the ACM's assessment.

Typically, pharmaceutical transactions are assessed by the European Commission in view of the turnover associated with pharmaceutical product portfolios. However, the Aurobindo/Apotex deal did not meet the European thresholds and therefore had to be reviewed by the Dutch and Polish competition authorities. The ACM followed the EU's industry-specific framework of analysing pharmaceutical mergers. In line with the Commission's approach, the ACM analysed overlaps at the level of the molecule limited to specific forms. The Dutch regulator also analysed the parties' pipeline, contract manufacturing and outlicensing activities. The only drug which raised concerns was the diazepam (enema), because the companies were the only suppliers of this drug in the Netherlands. The parties' commitment to divest Apotex's diazepam (enema) product remedied the ACM's competition concerns.

The ACM focuses on the pharmaceutical industry as part of its key priorities in 2019.

 

This article was published in the Competition Law Newsletter of February 2019. Other articles in this newsletter:

Team

Related news

12.05.2020 NL law
Kroniek van het mededingingsrecht

Articles - Wat de gevolgen van de coronacrisis zullen zijn voor de samenleving, de economie en – laat staan – het mededingingsbeleid laat zich op het moment van de totstandkoming van deze kroniek niet voorspellen. Wel stond al vast dat het mededingingsrecht zal worden herijkt op basis van de fundamentele uitdagingen die voortvloeien uit zich ontwikkelende ideeën over het belang van industriepolitiek, klimaatverandering en de positie van tech-ondernemingen en de platforms die zij exploiteren.

Read more

07.05.2020 NL law
Spreading fast: Dutch and Belgian COVID-19 State-aid approved

Short Reads - Many Member States are taking measures to support the economy during the COVID-19 crisis. The European Commission’s Temporary Framework enables the rapid approval of certain types of State aid. So far, three Dutch State aid schemes and six Belgian schemes were approved, providing the beneficiaries with legal certainty that the aid received is in line with EU State aid law and cannot be challenged at a later stage.

Read more

07.05.2020 NL law
ECJ confirms: no shortcut for ‘by object’ antitrust infringements

Short Reads - The European Court of Justice has found there is no shortcut for determining whether particular conduct can be held to have the object to restrict competition. A competition authority will always need to assess carefully whether the conduct reveals "a sufficient degree of harm to competition” before labelling it a ‘by object’ infringement. This is the case where there is sufficiently solid and reliable experience showing that this type of conduct is commonly regarded as being inherently anticompetitive.

Read more

28.04.2020 EU law
Origin of the primary ingredient - Implementing Regulation 2018/775

Short Reads - Since the beginning of this month, the origin of the primary ingredient of a food must be clearly indicated on the product when it differs from the origin given for the product as a whole. This is the result of the implementation of Article 26 (3) of the European Regulation 1169/2011 on the provision of food information to consumers.  

Read more

07.05.2020 NL law
COVID-19: fast-forwarding competition law

Short Reads - Competition authorities are temporarily ‘green-lighting’ certain collaboration initiatives to safeguard the supply of essential products in light of the COVID-19 outbreak. At the same time, authorities warn against using the current exceptional circumstances to engage in anti-competitive practices, such as price-fixing, excessive pricing, refusals to deal or opportunistic takeovers. 

Read more