On 3 September 2012, the Italian Administrative Tribunal for
Lazio ("Tribunale Amministrativo di Lazio", the
"Tribunal") annulled an earlier decision of the Italian
Competition Authority ("Autorità Garante della
Concorrenza e del Mercato", the "Authority")
which had fined pharmaceutical group Pfizer € 10.6
million for abuse of dominance in the market for medicines based on
the active substance latanoprost for the treatment of glaucoma (see
VBB on Competition Law, Volume 2012, No. 1, available at
www.vbb.com). Pfizer holds a 60% market share in that market
through the sales of its Xalatan® pharmaceutical product.
The Authority's initial decision had found that Pfizer had
engaged in anti-competitive practices by artificially extending the
patent protection of its Xalatan® product and simultaneously
threatening to sue various generic medicine producers likely to
enter the market. According to the Authority, Pfizer's
Xalatan® Italian patent expired in September 2009, but the
company effectively extended its protection to July 2011 and later
to January 2012, with the intention of keeping rivals out of the
market. Commitments were offered by Pfizer, but the Authority
rejected these for failing to address the competition concerns.
For its part, the Tribunal overturned the Authority's
decision, finding that Pfizer's behaviour was legitimate. Much
emphasis was placed on the Authority's refusal to accept the
commitments proposed by Pfizer during the proceedings. In the
Tribunal's view, that refusal was "logically and
procedurally" incorrect. On the contrary, the Tribunal
considered that the proposed commitments had an "objective
substantive consistency" and were "likely to
diminish the legal uncertainty created by Pfizer's
In addition, the Authority was also criticised for adopting a
too wide interpretation of the AstraZeneca precedent, in
which the European Commission – whose decision was
subsequently upheld by the EU General Court - had fined AstraZeneca
€ 60 million for allegedly abusing Article 102 TFEU
through a misuse of the patent system with a view to blocking or
delaying market entry for generic versions of its ulcer medicine
Losec® (active substance: omeprazole) and preventing parallel
imports of Losec® (see VBB on Competition Law, Volume 2005, No.
6 & Volume 2010, No. 7 available at
www.vbb.com). According to the Tribunal, the Authority failed
to establish sufficient evidence of such behaviour by Pfizer.
With regard to the Authority's findings of abuse of
dominance and its theory of harm, the Tribunal stated that Pfizer
had done nothing more than defend its legitimate interests. In
particular, anti-competitive behaviour needed to be supported by
evidence of "clear exclusionary intent and an additional
anti-competitive element" which went beyond legitimate
business practices. In the present case, the Authority had failed
to demonstrate that Pfizer effectively acted with the intention of
excluding generic producers from the market. For all the above
reasons, therefore, the Tribunal decided to annul the
Authority's decision imposing a fine on Pfizer.
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