GlaxoSmithKline’s latest legal battle against certain elements of parallel trade has hit a brick wall after the European Court of Justice stated that it has no jurisdiction concerning a case involving the firm’s desire to restrict supplies of certain drugs.
The case dates back to 2000 when GSK chose to deal with pharmacists in Greece directly, rather than the country’s wholesalers, to distribute three of its products – Lamictal (lamotrigine) for epilepsy/bipolar disorder, the migraine drug Imigran (sumatriptan) and the asthma treatment Serevent (salmeterol). The Greek Competition Commission complained vociferously [[23/10/01e]], and asked the European Union to step in.
Now the ECJ says that it cannot make a ruling, claiming that the Greek Competition Authority can’t refer the case to Brussels. As a result, this move leaves in place an interim antitrust ruling that means GSK must supply the drugs to wholesalers.
The company has yet to respond but the European Federation of Pharmaceutical Industries and Associations said it regrets that the ECJ “did not take the opportunity in its ruling to issue a decision supporting Advocate-General Jacob’s opinion.” This refers to Francis Jacobs, an advocate-general at the EU court who said last October that GSK should be allowed to impose restrictions on the re-exportation of its products.
The EFPIA claimed that parallel trade has “no or little benefit to patients and payers, but has a negative impact on the research-based pharmaceutical industry competitiveness in Europe" and only helps “just a few intermediaries.”
The association added that AG Jacobs’ opinion “remains the latest authority on this subject,” a view backed by Pat Treacy, head of competition at law firm Bristows who said that “although the Opinion does not have the same legal force as a court judgment, it has a powerful persuasive value.” The matter will now have to return before the Greek Competition Committee for a final decision.
However, Hans Boegh-Soerensen, president of the European Association of Euro-Pharmaceutical Companies, which represents parallel distributiors in the continent, said “we would naturally have preferred the ECJ to take a position on this important matter and had hoped it would give a clear European signal that the behaviour of GSK in Greece – in trying to illegally restrict the supply of medicines – was anti-competitive as well as dangerous for patient health.”
Dr Heinz Kobelt, the EAEPC secretary general, added: “Today’s decision also means that last year’s opinion of AG Jacobs is not upheld. It is high time the manufacturers finally got the message and ceased their practice of restricting supplies.”