The “Generics UK” precedent: will the ECJ find the way out of the “restriction by object” maze?

By: Quentin Colombier (Competition Forum)

In a noteworthy ruling issued on January 30th, 2020 in response to a preliminary ruling requested by the Competition Appeal Tribunal of the United Kingdom, the Court of Justice of the European Union (“the Court”) provides interesting clarifications with respect to both the notion of “restriction of competition by object” and the notion of abuse of a dominant position. Only the notion of “restriction of competition by object” will be discussed in this paper.

In order to fully understand the Court’s approach, it is necessary to keep in mind the specific facts of the case. In the 1990s, the laboratory GlaxoSmithKline(“GSK”) marketed, in the United Kingdom, an originator medicine called “Seroxat”, the active ingredient of which is paroxetine. It is a prescription-only anti-depressant medicine, belonging to the group of medicines known as selective serotonin re-uptake inhibitors (“SSRIs”).

By 1999 and 2000, the patent protecting paroxetine and the “data exclusivity” period expired, opening the possibility for generic medicines manufacturers to enter the market. At that time, however, GSKhad obtained a series of so-called “secondary” patents, including a manufacturing process patent that remained valid until 2016.

Three generic medicines manufacturers planned to enter the British market by mid-2000 by offering for sale a generic version of paroxetine. In order to put an end to the litigation, GSKentered into a settlement agreement with each of the three generic medicines manufacturers…