Most firms would not instinctively associate statements about a competitor’s products with abuse of dominance enforcement. Recent developments in the European Union (EU) suggest that they should.
At a glance
- Two European Commission rulings serve as a reminder that, for dominant firms, competition law risk may arise not only from what they charge or how they supply, but also from what they say about their competitors.
- The cases raise an interesting question for South African competition law whether misleading statements by a dominant firm about a competitor's products could amount to exclusionary conduct under section 8(1)(c) of the Competition Act 89 of 1998.
- For dominant firms, competition law risk may arise not only from pricing strategies, supply arrangements and exclusivity provisions, but also from the content of communications directed at customers and other market participants.
In Case AT.40998 – Sanofi Efluelda (Sanofi), the European Commission (Commission) raised concerns that Sanofi may have abused its dominant position by sharing misleading messages regarding a competing influenza vaccine. The Commission considered this conduct to be capable of reducing demand for the competing product. The case signals a willingness by competition authorities to scrutinise whether a dominant firm’s communications strategy may in itself amount to exclusionary conduct.
For South African businesses, the development is relevant given the broad wording of section 8 of the Competition Act 89 of 1998 (Competition Act) and, in particular, the potential scope of section 8(1)(c) to capture exclusionary conduct that impedes rivals’ ability to compete.
The cases raise an interesting question for South African competition law: could misleading statements by a dominant firm about a competitor’s products amount to exclusionary conduct under section 8(1)(c) of the Competition Act?
Case AT.40998 – Sanofi Efluelda
In June 2026, the Commission issued a preliminary assessment in Sanofi, expressing concerns that Sanofi may have infringed Article 102 of the Treaty on the Functioning of the European Union (TFEU). Article 102 of the TFEU prohibits the abuse of a dominant position and lists examples of abusive conduct such as unfair pricing, restrictions on production or market access, discriminatory treatment of trading partners and tying arrangements. Importantly, however, these examples do not constitute a closed list of abusive conduct. According to the Commission, Sanofi may have shared messages to healthcare professionals suggesting that its product was supported by stronger scientific evidence than a rival enhanced seasonal influenza vaccine, ‘Fluad’, and may have created a misleading impression regarding national vaccination recommendations. The Commission took the preliminary view that those communications were capable of affecting how healthcare professionals assessed the competing product and, ultimately, its ability to compete effectively. Sanofi offered commitments to address the Commission’s concerns.
The Commission focused on the potential competitive effects of statements made by a dominant firm about a rival product. In doing so, it signalled that communications and marketing strategies may, in certain circumstances, give rise to competition law concerns where they are capable of distorting customer decision-making and impairing a competitor’s ability to compete effectively. Although Sanofi is the latest development in this area, it was Case AT.40577 – Vifor (IV iron products) (Vifor) that set out the framework for determining when statements about a competing product may cross the line into exclusionary conduct.
Case AT.40577 – Vifor (IV iron products)
Vifor is widely regarded as the Commission’s first standalone competitor disparagement case under Article 102 of the TFEU. The matter concerned allegations that Vifor, a dominant supplier of IV iron products, shared allegedly misleading information with healthcare professionals regarding the safety of a competing IV iron medicine, namely Monofer sold by Pharmacosmos A/S. In particular, the Commission was concerned that Vifor sought to create doubts regarding the safety of Monofer through communications that were allegedly inaccurate, incomplete or presented in a misleading manner.
The significance of Vifor lies in the framework it established for assessing competitor disparagement under Article 102 of the TFEU. The Commission considered whether communications directed at key market participants could constitute exclusionary conduct where they were capable of influencing demand for a rival product. In doing so, it emphasised that while a dominant firm remains entitled to promote its own products, it may not seek to discredit competing products through objectively misleading information. The decision provides guidance on how South African competition authorities (competition authorities) may assess allegations of competitor disparagement under abuse of dominance provisions.
What factors did the European Commission consider?
In both cases the Commission’s assessment focused on several key factors.
Dominance
As a starting point, the Commission considered whether the undertaking held a dominant position in the relevant market. In both Vifor and Sanofi, the allegations were premised on the existence of market power, reflecting the principle that dominant firms bear a special responsibility not to impair effective competition. The Commission assessed whether the undertakings had sufficient market power to act independently of competitors and customers.
Objectively misleading communications
The Commission then considered whether the disputed statements were objectively misleading. Importantly, the Commission’s approach suggests that information need not be outright false to raise concerns. Statements may also be considered misleading where they are incomplete, selectively presented, omit material context, or otherwise create an incorrect impression regarding a competing product. In both cases, the Commission’s concerns centred on whether the communications accurately reflected the available scientific evidence and regulatory position relating to the rival products.
Capability to produce exclusionary effects, not actual foreclosure
A further consideration was whether the conduct was capable of producing exclusionary effects. The Commission did not focus solely on whether a rival had in fact been excluded from the market. Rather, the question was whether the communications were capable of reducing demand for a competing product or otherwise affecting its competitive position. The Commission considered it significant that the communications were directed at healthcare professionals, whose recommendations can have a direct impact on demand for competing products.
Objective justification
The Commission also considered whether there was any objective justification for the conduct. The Commission recognised that firms are entitled to promote and differentiate their products, including through comparative claims. The key issue, however, was whether the communications were supported by objective evidence and formed part of legitimate competition on the merits, or whether they instead sought to undermine a rival through misleading assertions. In the absence of sufficient objective justification, such conduct may give rise to abuse of dominance concerns.
What does this mean for South Africa?
The EU cases raise an interesting question closer to home: could a dominant firm’s communications about a competitor, if misleading and capable of influencing customer behaviour, amount to exclusionary conduct under section 8(1)(c) of the Competition Act?
Several of the factors considered in Vifor and Sanofi are not unfamiliar to South African abuse of dominance jurisprudence. The Commission’s focus on whether the conduct was capable of impairing a rival’s ability to compete also resonates with the South African concept of an “exclusionary act”, which is broadly defined as conduct that impedes or prevents a firm from entering into, participating in or expanding within a market.
The competition authorities have similarly demonstrated a willingness to rely on section 8(1)(c) to address forms of exclusionary conduct that fall outside the traditional categories of abuse. This was evident in Senwes Ltd v Competition Commission of South Africa (87/CAC/FEB/09) [2010] ZACAC 3 (3 February 2010), where the Competition Appeal Court recognised margin squeeze as a form of exclusionary conduct under section 8(1)(c), even though margin squeeze was not expressly prohibited in the Competition Act at the time. The case illustrates the flexibility of section 8(1)(c) and demonstrates that the competition authorities are prepared to scrutinise conduct that falls outside traditional categories of abuse where such is capable of impeding a rival’s ability to compete effectively.
Viewed through this lens, Sanofi and Vifor suggest that the sharing of misleading information about a competitor may, in certain circumstances, be regarded as exclusionary conduct in terms of section 8 of the Competition Act because it seeks to undermine a rival’s competitive position through misinformation rather than superior price, quality, service or innovation.
While it remains to be seen whether the South African competition authorities will adopt a similar approach, Sanofi and Vifor illustrate the expansive manner in which competition authorities are approaching exclusionary conduct. For dominant firms, competition law risk may arise not only from pricing strategies, supply arrangements and exclusivity provisions, but also from the content of communications directed at customers and other market participants.
The EU cases serve as a reminder that, businesses should ensure that comparative advertising, product claims and statements regarding competing products are accurate, balanced and capable of objective substantiation, particularly where those communications are directed at decision-makers capable of influencing demand.
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