On 9 July 2014, the European Commission announced that it had fined French pharmaceutical company Servier over € 331 million for abusing its dominant position and for concluding a series of "pay-for-delay" agreements with five generic companies in order to exclude them from the perindopril market in breach of Articles 101 and 102 TFEU. The five generic producers, namely Krka, Lupin Limited, Matix Laboratories Limited, Niche Generics Limited / Unichem Laboratories Limited and Teva UK Limited were also fined a total of over € 96.7 million for their involvement.

Perindopril is a blood pressure control medicine that used to be Servier's bestselling medicine. The Commission considered that, even though Servier's basic patent in the perindopril molecule had expired in 2003, Servier sought to protect its medicine by using a number of secondary patents relating to various processes and form aimed at delaying or preventing the entry of generic producers onto the market. In particular, Servier reportedly recognised that the acquisition of a key 2004 secondary patent was aimed at "strengthening the defence mechanism" while it never put the technology to use.

The Commission reportedly also found evidence that between 2005 and 2007, Servier settled at least 5 court challenges to its patents brought by generic companies. The Commission considered that these transactions were not ordinary transactions where two parties decide to settle patent litigation out of court to save costs and time. Instead, while these generic companies were close to entering the market, they had abstained from doing so in exchange for several tens of millions of euros.

The decision against Servier and the other pharmaceutical companies follows a 2009 investigation and a 2012 Statement of Objections (See VBB on Competition Law, Volume 2012, No. 7, available at www.vbb.com). This is the third decision in which the Commission has imposed fines on pharmaceutical producers on account of "pay-for-delay" agreements. The other two cases concerned Lundbeck and three generic companies in June 2013 (See VBB on Competition Law, Volume 2013, No. 6) and Johnson & Johnson and Novartis AG in December 2013 (VBB on Competition Law, Volume 2013, No. 12, available at www.vbb.com).

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