The Court of Justice of the European Union provides clarifications on the assessment under competition law of pay-for-delay deals in the pharmaceutical sector

On 30 January 2020, the Court of Justice of the European Union (CJEU) issued its decision on a request for preliminary ruling submitted by the UK Competition Appeal Tribunal (CAT) in a case concerning the long-standing dispute on the balances and limits between legitimate and anti-competitive settlement agreements.

The decision of the CJEU largely reflects the Opinion of the Advocate General Kokott issued few days ago and touches upon three main interesting aspects, namely: i) whether originator and generic producers can be considered to be potential competitors where there is a dispute on the validity of the originator's patent and/or the existence of a violation of such patent by the generic drug, ii) whether a settlement agreement can be considered as infringing competition “by object” and iii) whether the same conduct can be said to violate, at the same time, the prohibition of anticompetitive agreements and the prohibition of abuses of dominance.

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