ESKARIAM defends the interests of public administrations that financed the antidepressant medications citalopram and escitalopram between 2002 and 2010 against the Danish pharmaceutical company Lundbeck, in the first case of “pay for delay” investigated by the European Commission.
The European Commission in its historic Decision dated 19 July 2013 (Case AT.39226 – Lundbeck) sanctioned Lundbeck, the pharmaceutical company that originally manufactured the drug citalopram, and the main pharmaceutical companies that produce generic citalopram in the European Economic Area (EEA). considering that the “pay for delay” agreements they reached violated Article 101 TFEU, thus confirming an infringement of competition law. Apart from Lundbeck, other companies sanctioned by the Commission were Merck KGaA and Merck GUK, Arrow Generics Limited, Alpharma ApS and Ranbaxy Laboratories Limited.
According to the Commission, the so-called “pay for delay” agreements, were intended to restrict competition to the extent that the generic companies agreed to delay the entry of generics into the market of the generic citalopram drugs in exchange for a transfer of value from Lundbeck. Lundbeck transferred a total of 66.8 million euros to the generic companies, taking into account the profit expected by each company if the normal opening of the market had occurred for calculations purposes, as well as the entry into the market of Lundbeck's second-generation drug, escitalopram.
The Commission considered that the four generic manufacturers in question represented real potential competition for Lundbeck at the time the agreements were signed, since the original patent for citalopram had expired in most EEA countries in January 2002 and generic companies were in a position to launch generic citalopram on the market, concluding that, in the absence of agreements, generic companies would have had real and concrete possibilities of entering the market.
The Decision of the European Commission dated 19 June 2013 is final after having been confirmed both by the General Court of the European Union in a ruling on 8 September 2016, in case T-472/13, and by the Court of Justice of the European Union through Judgment dated 25 March 2021, issued in case C-591/16 P.
