June 16, 2021

Volume XI, Number 167

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European Commission and National Authorities Take a Stand Against Excessive Pricing by the Pharmaceutical Industry

The European Commission and national competition authorities (NCAs) are very actively fighting a number of anticompetitive practices in the pharmaceutical industry. Enforcing the prohibition against excessive pricing has become a particular area of focus for competition authorities in Europe.

The European approach to excessive pricing differs from that followed in the United States, where excessive pricing does not amount to a violation of antitrust laws.

In the European Union (and the United Kingdom, for now), dominant businesses are not allowed to directly nor indirectly impose unfair purchase or selling prices. The Court of Justice of the European Union (CJEU) has established a two-pronged test for use in investigating excessive pricing. It must be determined i) whether the difference between costs actually incurred and the price actually charged is excessive, and, if yes, ii) whether or not a price has been imposed that is either unfair in itself or when compared to competing products.

In practice, competition authorities have historically been wary of prosecuting excessive pricing, partly because they do not want to act like price regulators, and partly because it can be difficult for an authority to establish that a price is excessive. In the last couple of years, however, the Commission and several NCAs have overcome their reticence.

Click here to read the full article in our latest International News.

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 137
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About this Author

Hendrik Viaene McDermott Antitrust Attorney
Partner

Hendrik Viaene focuses his practice on competition law, regulated markets and regulatory law. He advises clients across a wide range of related issues including state aid, cartels, licensing agreements, merger filings, M&A negotiations, abuse of dominance cases, and distribution agreements.

Hendrik assists governments as well as privately and publicly owned companies. He has a wealth of experience in a range of sector such as energy, chemicals, paints, automotive, financial data, recycling and waste management, telecom, construction, renewables, media, private equity and the...

+32 2 282 35 93
Karolien Van der Putten European & Competition Attorney McDermott Will & Emery Brussels, Belgium
Associate

Karolien Van der Putten focuses her practice on European law and competition law.

She assists clients on various aspects of European and Belgian competition law. In particular, she focuses on anti-competitive agreements, abuse of dominance, merger control and state aid. Furthermore, she has experience with litigation, dawn raids and investigations by the Belgian Competition Authority.

32 2-282-35-91
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