Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,  BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  
 EUROPEAN COMMISSION  
Brussels,  10.7.2019  
C(2019) 5366 final  
PUBLIC VERSION  
 
 
 
 
To the notifying party  
Subject : Case M.9274 - GLAXOSMITHKLINE / PFIZER CONSUMER 
HEALTHCARE BUSINESS  
Commission decision pursuant to Article 6(1)(b) in conjunction with 
Article 6(2) of Council Regulation No  139/20041 and Article 57 of the 
Agreement on the European Economic Area2 
Dear Sir or Madam,  
(1) On 17 May 2019, the European Commission (“the Commission”) received 
notification of a proposed con centration pursuant to Article 4 of the Merger 
Regulation by which GlaxoSmithKline plc. (“GSK”, United Kingdom) will 
acquire sole control over the consumer health business of Pfizer Inc. (“Pfizer”, 
United States), hereinafter referred to as “Pfizer CH” (“t he Transaction”). GSK is 
referred to as “the Notifying Party” and, together with Pfizer CH, as “the Parties”.  
                                                 
1  OJ L 24, 29.1.2004, page 1 (the 'Merger Regulation'). With effect from 1 December 2009,  the 
Treaty on the Functioning of the European Union ('TFEU') has introduced certain changes, such 
as the replacement of 'Community' by 'Union' and 'common market' by 'intern al market'. The 
terminology of the TFEU will be used throughout this decision.  
2  OJ L 1, 3.1.1994, page 3 (the 'EEA Agreement').  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 
concerning non -disclosure of business 
secrets and other  confidential 
information. The omissions are shown 
thus […] . Where possible the 
information omitted has been replaced 
by ranges of figures or a general 
description.  
 
 
2 I. THE  PARTIES  
(2) GSK  is a global pharmaceutical company headquartered in the United Kingdom. 
GSK’s worldwide consumer health products span across vari ous therapeutic 
areas, namely (i) pain management, (ii) respiratory health, (iii) nutrition and 
digestive health, (iv) skin health, and (v) oral health.  
(3) Pfizer CH  consists of the global portfolio of non -prescription (also known as 
“over -the-counter” or “O TC”) pharmaceutical products of Pfizer,3 a global 
pharmaceutical company headquartered in the United States. Pfizer CH is active 
worldwide across various product categories, namely (i) pain management, (ii) 
respiratory health, (iii) gastrointestinal treatm ent, (iv) dietary supplements, and 
(v) personal care products.  
II. THE  OPERATION   
The Transaction  
(4) On 19 December 2018, GSK and Pfizer entered into a Stock and Asset Purchase 
Agreement (“SAPA”) whereby: (i) GSK would acquire an equity interest of 68% 
over Pfizer CH through a newly created company, to which GSK will contribute 
its own global OTC business at closing,4 thereby combining both Pfizer CH and 
GSK consumer health businesses into one single entity (“the Combined CH 
Business”); and (ii) Pfizer would obtain an equity interest of 32% into the 
Combined CH Business as part of the consideration for the Transaction, which is 
structured as an exchange offer.  
GSK to exercise s ole control o ver the Combined CH Business  
(5) GSK will own the majority of the shares and voting rights into the Combined CH 
Business. In addition, Pfizer will not:  (i) hold veto rights with respect to decisions 
that are essential for the strategic commercial behaviour of the joint venture; or 
(ii) make any contribution to the joint venture  such as to result in a commonality 
of shareholders' interests.  
(6) In relation to (i), Pfizer will not have veto rights over strategic matters related to 
the Combined CH Business , including the approval of the business plan and the 
budget, or the appointment  of senior management. The powers conferred to Pfizer 
                                                 
3  The following exceptions apply: (i) Pfizer will transfer a limited number of prescription products 
to GSK because certain S KUs of Pfizer CH’s brands are sold on prescription in a handful of EEA 
Member States due to national regulatory requirements; and (ii) Pfizer will retain: a) OTC 
products that are currently sold by Pfizer’s Biopharmaceuticals Group (notably, certain 
biosim ilars) and Upjohn businesses (notably, off -patent solid oral dose legacy brands, including 
Lyrica, Lipitor, Novarsc, Viagra and Celebrex ); b) products belonging to global brands which are 
predominantly sold on prescription but a version thereof is also sol d OTC (in relation to the EEA, 
Diflucan  and Feldene ); and c) prescription products that have recently switched to OTC in a 
country or for which Pfizer is pursuing a switch to OTC  (in relation to the EEA, these include 
products marketed under the brands […]).  
4  With the exception of certain assets belonging to its Indian business (notably, the Horlicks  brand), 
which it has agreed to sell to Unilever (Form CO, Chapter 1, Section 1, paragraph 11).  
 
 
3 are intended to protect the value of its minority interest in the joint venture and 
will not grant it negative control within the meaning of the Merger Regulation.  
(7) In relation to (ii), Pfizer will esse ntially exit the OTC space through the 
Transaction and, conversely, will  not make  any "vital contribution" to the 
Combined CH Business in the future . Therefore, the Transaction will not result in 
a “high degree of mutual dependency ” between  GSK and Pfizer in relation to  the 
“strategic objectives ” of the Combined CH Business .5 
(8) Therefore, post -Transaction, GSK will have sole control over the Combined CH 
Business, which includes Pfizer CH.  
Conclusion on the concentration  
(9) The Commission therefore concludes that  the Transaction constitutes a 
concentration within the meaning of Article 3(1)(b) of the Merger Regulation.  
III. EU DIMENSION  
(10) The undertakings concerned have a combined aggregate worldwide turnover in 
excess of EUR 5 000 million (GSK: EUR 34 433 million; Pfize r CH: EUR 3 073 
million). Each of them has an EU -wide turnover in excess of EUR 250 million 
(GSK: […]; Pfizer CH: […]), and each of them does not achieve more than two -
thirds of its aggregate EU -wide turnover within one and the same Member State.  
(11) The Tran saction therefore has an EU dimension within the meaning of Article 
1(2) of the Merger Regulation.  
IV. COMPETITIVE  ASSESSMENT  
1. GENERAL CONSIDERATION S ON MARKET DEFINITI ON 
1.1. Product market definition  
(12) When defining relevant markets in past decisions dealing with finished dose 
pharmaceutical products,6 the Commission based its assessment on the following 
general approach.7  
                                                 
5  Paragraph 77 of the Consolidated  Jurisdictional Notice und er Council Regulation (EC) No 
139/2004 on the control of concentrations between undertakings (OJ C 95, 16.4.2008) (the 
“CJN”).  
6  Finished dose pharmaceuticals (“FDPs”) refer to the finished dosage form of pharmaceutical 
products, which, in other words, ar e ready to be used by customers. FDPs contain (i) an active 
pharmaceutical ingredient (or “API”, which correspond to the component present within the 
product that provides the pharmacological action in the body, e.g., acetyl salicylic  acid in an 
aspirin ta blet), or a combination of APIs; and (ii) other excipients.  
7  See, for example, Commission decision of 27 August 2018 in case M.8974 – Procter & Gamble / 
Merck Consumer Health Business ; Commission decision of 4 August 2016 in case M.7919 – 
Sanofi/Boehring er Ingelheim Consumer healthcare Business ; Commission decision of 05 August 
2013 in case M.6969 – Valeant Pharmaceuticals International/Bausch & Lomb Holdings ; 
 
 
 
4 (13) The Commission noted that medicines may be subdivided into therapeutic classes 
by reference to the Anatomical Therapeutic Classification (“ATC” ), devised by 
the European Pharmaceutical Marketing Research Association (“EphMRA”) and 
maintained by EphMRA and IQVIA, formerly known as Intercontinental Medical 
Statistics (“IMS”).  
(14) The ATC system is a hierarchical and coded four -level system which classi fies 
medicinal products by class according to their indication, therapeutic use, 
composition, and mode of action. In the first and broadest level (ATC 1), 
medicinal products are divided into the 16 anatomical main groups. The second 
level (ATC 2) is either  a pharmacological or therapeutic group. The third level 
(ATC 3) further groups medicinal products by their specific therapeutic 
indications. Finally, the ATC 4 level is generally the most detailed one (not 
available for all ATC 3) and refers for instance to the mode of action or any other 
subdivision of the relevant products .  
(15) The Commission has often referred to the third level (ATC 3) as the starting point 
for defining the relevant product market. However, in a number of cases, the 
Commission found that the ATC 3 level classification did not yield the 
appropriate market definition within the meaning of the Commission Notice on 
the Definition of the Relevant Market.8 In particular, in relation to originator and 
generic medicines, the Commission has conside red in previous decisions 
plausible product markets at the ATC 4 level, at a level of a molecule or a group 
of molecules that are considered interchangeable so as to exercise competitive 
pressure on one another. However, an overlap in therapeutic uses does  not 
necessarily imply any particular economic substitution patterns between 
products.9  
(16) In relation to generic medicines sold on prescription (“Rx”), the Commission has 
considered in previous decisions that the most plausible product market is 
generally at the level of a molecule since generics are the closest substitutes to the 
originator product based on the same molecule. The Commission then assessed 
the potential for these products to enter into competition with other products by 
reference to their ch aracteristics, intended therapeutic use, and expected 
therapeutic and economic substitutability.10 
                                                                                                                                                 
Commission decision of 9 August 2010 in case M.5778 – Novartis/Alcon;  Commission decision 
of 28 January 2015 in case M.7276  – GlaxoSmithKline/ Novartis Vaccines Business (Excl. 
Influenza) / Novartis Consumer Health Business; Commission decision of 03 August 2010 in case 
M.5865  – Teva / Ratiopharm ; Commission decision of 29 June 2010 in case M.8889  – Teva / PGT 
OTC.  
8  OJ C 372, 9.12.1997, pages 5 to 13.  
9  See for example Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer 
Ingelheim Consumer Healthcare Business ; Commission decision of 16 March 2018 in case 
M.7480 – Actavis/Allerg an; Commission decision of 28 January 2018 in case M.7379 – 
Mylan/Abbott ; Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline/ 
Novartis Vaccines Business (Excl. Influenza) / Novartis Consumer Health Business ; Commission 
decision of 28 J anuary 2015 in case M.7276 – Novartis/GlaxoSmithKline Oncology Business ; and 
Commission decision of 4 February 2009 in case M.5253 – SanofiAventis/Zentiva .  
10  Commission decision of 4 February 2009 in case M.7746 – Teva / Allergan Generics .  
 
 
5 (17) In relation to OTC products, the active ingredient (molecule) appears to play a 
much more subordinated role, unless it is equivalent to a specific 
therapeutic /labelled indication (in situations where all products based on the same 
molecule, and only those, have the same indication).11 The Commission has 
considered in previous decisions that the most plausible product market is 
generally at the level of the thera peutic indication, which may be a sub -division of 
the ATC 3 or even ATC 4  categories or may combine products belonging to 
different ATC 3 or ATC 4 categories.12 In view of these specificities, IQVIA (ex -
IMS) has developed a specific classification for OTC p roducts, including the 
OTC 2, OTC 3, and OTC 4 levels. In previous decisions dealing with OTC 
products, the Commission has also referred to the OTC 3 level as the starting 
point for defining the relevant product market in OTC markets.13 
1.1.1.  Distinction OTC and Rx products  
(18) There are three main types of regulatory authorisations required in order to bring 
a new pharmaceutical product to market: manufacturing, distribution and 
marketing authorisation. When a marketing authorisation is granted, the 
competent authori ties specify the classification of the medicinal product into two 
categories: (i) subject to medical prescription (Rx), or (ii) not subject to medical 
prescription (OTC), depending of medical indications or specific precautions of 
use (for instance adverse  reactions).14  
(19) The Commission has defined in the past separate markets for medicines which 
can be dispensed only against a prescription and those which can be sold OTC, 
while acknowledging that in certain circumstances (for example, in cases where 
the stat us of the drug is not clearly limited to either OTC or prescription) OTC 
products may compete with Rx products.15 Medical indications, side effects, 
regulatory framework, distribution and marketing tend to differ between these 
drug categories, even if the a ctive ingredients may sometimes be identical; 
therefore, OTC and Rx products tend to be part of separate markets.   
                                                 
11  See for example Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer 
Ingelheim Consumer Healthcare Business . 
12  See for example Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer 
Ingelheim Consumer Healthcare Busines s. 
13  See for example Commission decision of 29 June 2018 in case M.8889 – Teva / PGT OTC Assets , 
paragraph 48, 58, 70ff and 84ff; Commission decision of 4 August 2018 in case M.7919 – 
Sanofi/Boehringer Ingelheim Consumer Healthcare Business, paragraph 264  and 268; 
Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline/ Novartis Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business, paragraph 197 and Commission 
decision of 28 January 2015 in case M.6162 – Pfizer/Ferrosan C onsumer Healthcare Business , 
paragraph 37.  
14  Commission decision of 28 January 2015 in case M.7276  – GlaxoSmithKline/ Novartis Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business.  
15  See for example Commission decision of 5 August 2013  in case M.6969 – Valeant 
Pharmaceuticals International/Bausch & Lomb Holdings ; Commission decision of 9 August 2010 
in case M.5778 – Novartis/Alcon ; Commission decision of 19 December 2008 in case M.5295 – 
Teva/Barr ; Commission decision of 28 January 2018  in case M.7379 – Mylan/Abbott . 
 
 
6 (20) The market investigation did not suggest that departing from previous 
Commission decisions would be appropriate in this case and, in particul ar, did not 
provide particular indications that Rx products exert significant competitive 
pressure on the OTC products at stake. In any event, as discussed in Section IV.2 
and in line with its decisional practice, the Commission has considered potential 
overlaps between OTC and Rx products, in addition to OTC vs OTC and Rx vs 
Rx overlaps, where relevant, in order to assess the likely effect of the Transaction 
on competition.  
1.1.2.  Other possible segmentations  
(21) As the Commission has acknowledged in its decisional practice, medicines are 
differentiated not only by their active ingredient(s) but also, in particular, as 
recognized by the European regulatory framework for medicines for human use, 
by their posology (or dosage), pharmaceutical form, method and route of 
administration (collectively referred to as “galenic form” in this Decision) which 
may limit their substitutability.16 The galenic form of a medicine may in some 
cases influence the preferences of consumers or be targeted to specific patients 
groups (for exa mple, children), and therefore, two medicines with the same active 
ingredient and indications may not be (fully) interchangeable for certain patient 
groups.17 Certain medicines can also be indicated only for a specific patient group 
(for example, adults or children).  
1.1.3.  Conclusion  
(22) The Commission will analyse in Section  IV.3 t he relevance of the distinctions 
discussed in the present Section for the specific markets at stake.  
1.2. Geographic market definition  
(23) The Commission has consistently defined the geographic markets for finished 
dose pharmaceutical products as being national in scope.18  
(24) The Notifying Party, in line with the Commission’s decisional practice, provided 
market share data at national level.  
(25) The market investigation in this case did not provide any indications that the 
geographic scope of the markets concerned by the Transaction should be 
revisited, in particular in view of the national regulatory and reimbursement 
                                                 
16  See for example Commission decision of 9 August 2010 in case M.5778 – Novartis/Alcon ; 
Commission decision of 4 February 2009 in case M.5253 – SanofiAventis/Zentiva; Commission 
decision of 03 August 2010 in case M.5865  – Teva / Ratiopharm and Commission decision of 28 
January 2015 in case M.7276 – GlaxoSmithKline/ Novartis Vaccines Business (Excl. Influenza) / 
Novartis Consumer Health Business.  M.5778 - Novartis/Alcon ; M.5865 - Teva/Ratiopharm , and 
M.5253 - Sanofi -Aventis/Z entiva .  
17  See for example Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer 
Ingelheim Consumer Healthcare Business and Commission decision of 28 January 2015 in case 
M.7276 – GlaxoSmithKline/ Novartis Vaccines Business (Excl. Influe nza) / Novartis Consumer 
Health Business.   
18  See most recently Commission decision of 20 December 2017 in case M.8675 – CVC/Teva’s 
Women’s Health Business , paragraph 20.  
 
 
7 schemes, and the fact that comp etition between pharmaceutical suppliers still 
predominantly takes place at a national level.   
(26) Therefore, for the purposes of this Decision, the Commission concludes that the 
geographic scope of all relevant product markets is national . 
2. METHODOLOGY FOR THE  IDENTIFICATION AND T HE ASSESSMENT OF AFF ECTED 
MARKETS  
(27) In line with Commission  precedents, the Notifying Party primarily used sales data  
of pharmaceutical products compiled by IQVIA (ex -IMS) to identify the affected 
markets that the Transaction gives rise to.  
(28) The Notifying Party has provided market shares compiled by IQVIA based on 
both value and volume. For the purposes of this Decision, in line with previous 
practice, the Commission has primarily relied on the value of sales as a measure 
of market shares.19 Calculating market shares on the basis of value has the 
advantage of enabling the aggregation of differentiated products in terms of active 
ingredients, delivery mode, volume container or packaging size, while also 
reflecting the relative strength  of (non -)branded products in the OTC space where 
brand awareness remains a key driver of competition and pricing.  Therefore, the 
Commission considers that value shares provide  a more accurate picture of the 
market position of the  Parties' branded OTC products and of the actual 
competition they face in each relevant product market.  
(29) In relation to OTC vs OTC overlaps , the Notifying Party identified the 
overlapping  indications by following in particular the OTC classification and data 
of the OTC -IMS database.20 The Notifying Party also provided information using 
the ATC classification and data of the MIDAS database,21 as well as from a 
separate source for Malta.22 The OTC vs OTC overlaps between the Parties 
                                                 
19   See, e.g, M.5253 – Sanofi -Aventis/Zentiva , paragraph 204. See also M.5865 – Teva/Ratiopharm , 
paragraph 49; M.6613 – Watson/Actavis, paragraph 38.  
20  The OTC -IMS database, based on IQVIA’s proprietary classification of “OTC” codes”, covers the 
pharmacy channel and, in some countries, other retail channels, and focuses on non -presc ription 
products. The database covers all EEA Member States except Cyprus, Malta, Liechtenstein, 
Iceland, Denmark, Estonia, Latvia, Lithuania, Luxembourg, and Sweden.  
21  The MIDAS database, based on the ATC classification system, only covers the pharmacy c hannel 
and includes sales of medical products sold OTC only, both on prescription and OTC, and on 
prescription only. The database covers all EEA Member States except Cyprus, Malta, 
Liechtenstein, and Iceland.  
22  The Parties’ activities overlap in Malta, wh ere IQVIA does not collect data. Therefore, the 
Notifying Party has provided data collected by a different third party organisation, Misco Malta. 
However, the Notifying Party notes that such data is based on pharmacies surveys which are not 
sufficiently re presentative and may thus not accurately reflect the Parties’ and their competitors’ 
position on the relevant markets. The Notifying Party further submits that both Parties only sell 
their products in Malta via independent distributors and generate very li mited sales, which gives 
them little visibility as to the local market dynamics . 
 
 
8 resulting from the Transaction gives rise to a number of  affected markets, which 
will be discussed in the relevant Sections of this Decision.23 
(30) Pfizer CH includes almost exclusively OTC products; however, due to national 
requirements, certain SKUs are sold on prescription in certain EEA Member 
States.24 In relation to Rx vs Rx overlaps , the Notifying Party identified the 
overlapping indications by identifying the Rx products contained in  the ATC 
classification and data of the ATC -based IQVIA MIDAS database. As regards Rx 
vs Rx overlaps, the only overlap that potentially gives rise to an affected market 
relates to cold and flu treatments in Romania. This overlap will be further 
discussed in Section IV.3.2.3  of this Decision.  
(31) In relation to Rx vs OTC overlaps , the Notifying Party identified the overlapping 
indications by following in particular the ATC classification and data of the 
MIDAS database. In that respect, the Transaction gives rise to a number  of 
affected markets, which will be discussed in Section  IV.3 of this Decision.  
(32) The OTC industry comprises pharmaceutical products that can be purchased 
without a prescription in pharmacies or, in certain EEA countries, from other 
retailers such as superm arkets, drugstores, etc. Internet sales may also play a role 
in certain markets. In this respect, the Notifying Party has not adjusted sales data 
to take into account sales achieved through alternative distribution channels that 
may not be covered in the O TC-IMS/MIDAS databases , such as online , mass 
market, and direct sales to consumers . However, the Notifying Party confirmed 
that market shares of GSK, Pfizer CH and their competitors are unlikely to vary 
in any significant manner if additional distribution channels are taken into 
account, and that, thus, no additional affected markets would arise from the 
Transaction.25 Moreover, t he results of the market investigation did not contradict 
the Notifying Party’s  claim  in that respect .  
(33) In line with the Commission precedents in the pharmaceutical sector,26 the 
Notifying Party classified affected markets in three categories:  
 Group 1, where the Parties' combined market share exceeds 35% and the 
increment exceeds 1%;27 
                                                 
23  The Transaction gives rise to affected markets in topical pain management (in Austria, Belgium, 
France, Germany, Ireland, Italy, Portugal, and Spain), systemic pain managem ent (in Germany, 
Greece, Hungary, Ireland, and Malta), cold and flu (in the Czech Republic, France, Hungary, 
Ireland, Malta, Romania, Slovakia, and the United Kingdom), nutrition and digestive health (in 
Slovakia), and gastro -intestinal treatments (in Irel and). Regarding gastro -intestinal treatments, as 
explained in Section IV.3.3, the Transaction gives rise to additional affected markets based on 
2016 -2018 market shares. However, the Commission does not consider such markets as affected 
for the purposes of  this Decision as GSK terminated the licence relating to the product giving rise 
to such affected markets (and GSK does not have the right to market these products in the future).  
24  Form CO, Chapter 1, Section 1, paragraph 22.  
25  Form CO, Chapter 2, Section 7, paragraph 51.  
26  See, e.g., Commission decision of 29 June 2018 in case M.8889 - Teva / PGT OTC Assets , 
paragraph 35. See also Commission decision of 15 June 2016 in case M.7919, Sanofi/Boehringer 
Ingelheim Consumer Healthcare Business , paragraph 35.  
 
 
9  Group 2, where the Parties' combined mar ket share exceeds 35% but the 
increment is below 1%; and  
 Group 3, where the Parties' combined market share is between 20% and 
35%.  
(34) The Commission has analysed all markets affected by the Transaction. However, 
in line with precedents,28 Group 3 markets are  not discussed individually in this 
Decision.29 The Commission assessed the competitive situation on these markets 
by considering the nature and the number of existing competitors and reached the 
conclusion that the Transaction is unlikely to raise serious doubts as to its 
compatibility with the internal market in relation to the markets in question. The 
results of the market investigation did not contradict  this conclusion.  
3. HORIZONTAL  NON-COORDINATED EFFECTS  
(35) The Commission determines  whether notified concentrations are compatible with 
the internal market, by assessing whether they would significantly impede 
effective competition in the internal market or in a substantial part of it, in 
particular, as a result of the creation or streng thening of a dominant position.  
(36) A merger giving rise to significant impediment of effective competition may do 
so as a result of the creation or strengthening of a dominant position in the 
relevant market(s). Moreover, mergers in oligopolistic markets inv olving the 
elimination of important constraints that the parties previously exerted on each 
other, together with a reduction of competitive pressure on the remaining 
competitors, may also result in a significant impediment to effective competition, 
even in  the absence of dominance.30 
(37) The Commission Guidelines on the assessment of horizontal mergers under the 
Merger Regulation (the “Horizontal Merger Guidelines”)31 describe horizontal 
non-coordinated effects as follows: “ A merger may significantly impede effec tive 
                                                                                                                                                 
27  The Notifying Party submitted that the Transaction does not give rise to any Group 1+ markets, 
that is to say markets where (i) the combined market share is below 35% but only one competitor 
remains on the market; or (ii) the combined mark et share exceeds 35% and the increment is below 
1% but the party with the small increment is a recent entrant.  
28  See for example Commission decision of 29 June 2018 in case M.8889 – Teva / PGT OTC Assets , 
paragraph  36. 
29  The Transaction gives rise to Gro up 3 markets under plausible market definitions in topical pain 
management  (in France and Spain), systemic pain management (in Germany, Greece, Hungary 
and Ireland), cold and flu (in the Czech Republic, France, Hungary, Ireland, Romania, Slovakia, 
and the United Kingdom), multivitamins (in Slovakia), and gastro -intestinal treatments (in 
Ireland). In all these markets, the combined share of the Parties is moderate to low and a number 
of strong competitors will remain active. In addition, as explained in Sect ion IV.3.3 below and in 
footnote 23 above, the Transaction gives rise to additional affected markets in the area of 
gastrointestinal treatments based on 2016 -2018 market shares. However, the Commission does not 
consider such markets as affected for the pur poses of this Decision as GSK terminated the licence 
relating to the product giving rise to such affected markets (and GSK does not have the right to 
market these products in the future).  
30   Horizontal Merger Guidelines, paragraph 25.  
31   OJ C 31, 5.2.200 4, p. 5.  
 
 
10 competition in a market by removing important competitive constraints on one or 
more sellers who consequently have increased market power. The most direct 
effect of the merger will be the loss of competition between the merging firms. For 
example, if prior to the merger one of the merging firms had raised its price, it 
would have lost some sales to the other merging firm. The merger removes this 
particular constraint. Non -merging firms in the same market can also benefit 
from the reduction of competiti ve pressure that results from the merger, since the 
merging firms’ price increase may switch some demand to the rival firms, which, 
in turn, may find it profitable to increase their prices. The reduction in these 
competitive constraints could lead to signi ficant price increases in the relevant 
market. ”32 
(38) The Horizontal Merger Guidelines list a number of factors which may influence 
whether or not significant non -coordinated effects are likely to result from a 
merger, such as the large market shares of the mer ging firms, the fact that the 
merging firms are close competitors, the limited possibilities for customers to 
switch suppliers, or the fact that the merger would eliminate an important 
competitive force.33 That list of factors applies equally regardless of whether a 
merger would create or strengthen a dominant position, or would otherwise 
significantly impede effective competition due to non -coordinated effects. 
Furthermore, not all of these factors need to be present for significant non -
coordinated effects to be likely. The list of factors, each of which is not 
necessarily decisive in its own right, is also not an exhaustive list.34  
(39) Finally, the Horizontal Merger Guidelines describe a number of factors, which 
could counteract the harmful effects of the merge r on competition, including the 
likelihood of buyer power, the entry of new competitors on the market, and 
efficiencies.  
(40) In the present case, t he Parties’ activities overlap in a number of EEA countries in 
relation  to topical and systemic pain management p roducts, cold and flu 
treatments, gastrointestinal treatments , multivitamins, laxatives, sedatives and 
sleeping aids. Affected market s arise only in relation to topical and systemic pain 
management products, cold and flu treatments, gastrointestinal treatm ents, and 
nutrition and digestive health ( multivitamins ). 
3.1. Pain management   
3.1.1.  Introduction regarding product market definition  
(41) Both GSK and Pfizer CH are active in pain management across the EEA. GSK’s 
flagship products include the Volta -branded products (which include a number of 
topical pain  relievers available in different formats) and Panadol (a systemic pain 
reliever based on paracetamol ). On the other hand,  Pfizer CH’s flagship products 
include ThermaCare ( Pfizer CH’s  main topical pa in management product, which 
is predominantly available as heat patch es) and the Advil  brand (covering 
                                                 
32   Horizontal Merger Guidelines, paragraph 24.  
33   Horizontal Merger Guidelines, paragraphs 27 and following.  
34   Horizontal Merger Guidelines, paragraphs 24 -38. 
 
 
11 ibuprofen -based systemic pain relievers, as well as topical pain relievers in 
France and the Netherlands) .  
(42) Patients experience pain in different  forms, i.e., acute pain (for example, 
toothaches, muscle sprains), episodic pain (for example, headaches, menstrual 
pain, muscle strain) or chronic pain (for example, arthritis), and across different 
parts of the human body, such as in the head, muscles, bones, j oints, or mouth.35  
(43) OTC pain management products are designed to enable consumers to manage 
various symptoms of pain. These can be (i) topical pain treatments which treat 
pain symptoms locally by means of topical application to the skin , or (ii)  systemic 
treatments which target pain centrally by means of oral intake.  
Commission’s precedents  
(44) In past decisions, when assessing the relevant products markets, the Commission 
distinguished the two following types of products managing pain: (i) topical pain 
manageme nt (“TPM”) products, which target pain symptoms locally by means of 
topical application to the skin and (ii) systemic pain management (“SPM”) 
products, which  treat pain in a systemic manner by way of oral intake producing 
effects on the entire body.  
The Notifying Party’s view  
(45) While the Notifying Party insists that it internally approaches pain management 
products on an overall basis, it acknowledged the Commission’s decisional 
practice to distinguish TPM and SPM products.36 
Commission’s assessment  
(46) The mark et investigation did not provide indications that departing from previous 
Commission’s decisions would be appropriate in this case. Although some market 
respondents indicated that there may be a certain degree of demand -side 
substitutability between TPM an d SPM products to cure local pain symptoms, the 
feedback  from the market investigation supports the finding that TPM and SPM 
products are not substitutable to cure wider pain symptoms  (i.e. TPM products are 
not appropriate to cure systemic pain symptoms) .37 In addition, several market 
participants explained that there is currently a trend away from systemic solutions 
for the treatment of local pain, which translates in a greater reliance on TPM 
products, including non -medicated or natural solutions.38 
Conclus ion 
                                                 
35  Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline/ Novartis  Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business , paragraph 304.  
36  Form CO, Chapter 3, Section 6, paragraph 4.  
37  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 11.1 and 11.6 and replies to 
Q3 - Questionnaire to competitors, question 13. See, e.g. retailer indicating that “ SPM can be used 
instead of TPM, but not vice versa .” 
38  Replies to Q3 - Questionnaire to competitors, question 13.1. Minutes of a call with a wholesaler                 
dated 19 March 2019.  
 
 
12 (47) On the basis of the elements described above, the Commission considers that 
TPM and SPM products should be assessed as separate product markets for the 
purposes of this Decision.  
3.1.2.  Topical pain management  
(48) Both GSK and Pfizer CH offer TPM products in var ious EEA Member States. 
GSK owns in particular the leading range of Volta -branded products, available in 
various formats across the EEA: Volta -ren/-rol/-dol medicated gel, cream, spray, 
or patch (based on diclofenac ), and the recently introduced Voltadol  non-
medicated (heat) patches, as well as Synthol /Syntholkiné  products which include 
gels and liquids.39 For its part, Pfizer CH is mainly active in the TPM category 
through the ThermaCare  brand, under which it predominantly markets a series of 
non-medicated heat patches in 16 Member States. Pfizer CH markets limited 
volumes of medicated gel in three EEA countries under the brands ThermaCare  
Schmerzgel (in Germany), as well as Kamol , AdvilMed gel  and Advil Gel  (in 
France and the Netherlands).   
3.1.2.1.  Product  market definition  
(49) As explained above, TPM products aim at managing pain by treating symptoms 
locally by means of topical application to the skin. Some TPM products are 
medicated, in the sense that they contain a pharmaceutical active ingredient (e.g. 
diclofenac  for GSK’s Volta -branded products), while other TPM products are 
non-medicated, in the sense that they are based on chemical reactions (such as 
iron oxidation) or “natural” remedies  (including homeopathic or herbal 
treatments) .40 In addition, TPM prod ucts are available in various formats or 
delivery modes, primarily creams, gels, patches, and sprays.  
(50) In terms of ATC classification, medicated TPM products are categorized under 
the ATC  3 class M2A (Topical Anti -rheumatics and Analgesics).41 This ATC 
class , as any other ATC class, only includes medicated products. The OTC 
classification, however, includes both medicated and non -medicated TPM 
products within the OTC  3 class 02E1 (Muscular Pain Relief Topical). This OTC 
class is broken down into six different  OTC  4 categories, based on format or 
delivery mode. Table 1 below sets out the ATC  3 and OTC  3/4 classes relevant 
for topical pain management  products . 
  
                                                 
39  GSK has also historically marketed a heat patch (only) in France under the Syntholkiné brand.  
40  While medicated TPM products require a marketing authorisation to be sold in the EEA, non -
medicated TPM products are typically classified as medical devices  (which means that they do not 
require a marketing authorisation to be sold in the EEA but rather a CE mark).  
41  This ATC 3 class is not further sub -divided into ATC 4 classes.  
 
 
13 Table 1 - TPM treatments – ATC/OTC Classes  
ATC 
Code   OTC 
Code  
Applied to Skin (Topical Products)  
M2A  Topical Anti -Rheumatics and 
Analgesics  
 
This ATC  3 class only includes 
medicated products.  
 
This ATC  3 class is not broken 
down in ATC  4 classes.  
 
 
 
 
 
 
 
 
 
 Muscular Pain Relief Topical  
 
This OTC  3 class includes 
medicated and non -medicated 
products.  
 
This OTC  3 class is broken down 
into the following OTC 4 codes:  
 02E1A Muscular Pain Relief 
(Topical) - Aerosols/Sprays  
 02E1K Muscular Pain Relief 
(Topical) - Kataplasma  
 02E1L Muscular Pain Relief 
(Topical) - Liquids (Topical)  
 02E1O Muscular Pain Relief 
(Topical) - Ointments/Creams  
 02E1W Muscular Pain Relief 
(Topical) - Baths  
 02E1Z Muscular Pain Relief 
(Topical) - Other Forms.  02E1  
Source: Form CO, Chapter 3, Section 6  
(51) The Commission notes that while the ATC 3 class M2A (Topical Antirheumatics 
and Analgesics) only includes medicated products (i.e. products containing an 
API such as diclofenac  or ibuprofen ), the OTC 3 class 02E1 (Muscular Pain 
Relief Topical) includes bot h medicated and non -medicated products (i.e. 
products based on “natural” remedies).  
(52) In the present case, the Parties’ activities overlap in the EEA in relation to the 
OTC 3 class 02E1 (Muscular Pain Relief Topical) in the 16 EEA  Member States 
where both Volta-branded products  and ThermaCare  are marketed (namely, all 
the Member States where Pfizer is active in the EAA: Austria, Belgium, 
 
 
14 Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, Malta, 
Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom ).42  
(53) In two out of these 16 EEA Member States, t he Parties’ activities also overlap in 
relation to the ATC  3 class M2A (Topical Anti-rheumatics and Analgesics), 
namely France and the Netherlands where Pfizer CH markets the Advil  and 
Kamol  creams. Indeed, t his ATC 3 class  only contains medicated products (such 
as GSK’s Volta -branded creams and gels) and does not include non -medicated 
products (such as Pfizer's ThermaCare  patches).  
Commission’s precedents  
(54) In previous decisions, the Commissi on considered that it was appropriate to 
include in the relevant market all products classified under the ATC3 class M2A 
(Topical Anti -Rheumatics and Analgesics).43 This ATC3 class encompasses a 
large array of medicated ointments, creams and sprays for the treatment of 
injuries, sprains, muscular tension, etc., which are based on various active 
ingredients.44 
(55) The Commission previously considered in some instances potential sub -
segmentations within the ATC3 class M2A based on molecules, but ultimately 
left thi s question open.45 
The Notifying Party’s view  
(56) The Notifying Party acknowledges that the Commission had previously defined 
topical pain management products under the ATC  3 class M2A (Topical 
Antirheumatics and Analgesics). However, as Pfizer CH’s ThermaCare  is a non -
medicated TPM product, which therefore falls outside of this ATC  3 class M2A 
but within the OTC  3 class 02E1, the Notifying Party provided data from OTC -
IMS (OTC  3 class 02E1) for the purposes of the Commission’s assessment.46  
                                                 
42  Form CO, Chapter 3, Section 6, paragraphs 7 and 30. As explained in Form CO, Chapter 3, 
Section 6, paragraph 7, Pfizer CH has discontinued sales of ThermaCare since 2014 in two 
Member States ([…] and […]).  
43  Commission decision of 9 November 2012 in case  M.6706 – Procter & Gamble/ Teva 
Pharmaceuticals OTC II , paragraph 16; and Commission decision of 27 May 2005 in case 
M.3751 – Novartis/ Hexal , page 10. See also Commission decision of 29 June 2018 in case 
M.8889 – Teva / PGT OTC Assets , paragraph 41; and Commission decision of 28 January 2015 in 
case M.7276 – GlaxoSmithKline / Novartis Vaccines Business (Excl. Influenza) / Novartis 
Consumer Health Business , where the Commission ultimately left the market open, while finding 
it appropriate to assess the mar ket on the basis of the ATC3 class M2A, and of the molecules 
within the ATC3 class M2A.  
44  Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis Vaccines 
Business (Excl. Influenza)/ Novartis Consumer Health Business , paragraph 324; see also 
Commission decision of 27 May 2005 in case M.3751 – Novartis/ Hexal , page 10; Commission 
decision of 9 November 2012 in case M.6706 – Procter & Gamble/ Teva Pharmaceuticals OTC 
II, paragraph 16; Commission decision of 26 April 2004 in case M. 3354 – Sanofi -
Synthelabo/Aventis , paragraph 23; Commission decision of 29 June 2018 in case M.8889 – Teva/ 
PGT OTC Assets , paragraph 39.  
45  Commission decision of 29 June 2018 in case M.8889 - Teva / PGT OTC Assets , paragraph 43.  
46  Form CO, Chapter 3, Sec tion 6, paragraph 39.  
 
 
15 (57) The Notifying Party insists that the OTC  3 class 02E1  encompass es highly 
differentiated products in terms of composition (medicated or not), format (gels, 
creams, patches, etc.), therapeutic indications (joint, muscle pain, etc.), usage, 
consumer perception, sales channels an d pricing. While acknowledging national 
specificities, the Notifying Party claims that medicated gels are distant 
competitors to heat patches given (i) their different modes of action and 
administration, customer perception and usage, and regulatory requir ements and 
(ii) their limited cross -price elasticity and supply -side substitution.47  
Commission’s assessment  
(58) The results of the market investigation revealed that the vast majority of 
customers and competitors consider that TPM products are substitutable, 
regardless of their delivery mode (although different formats may reflect different 
consumer preferences) or of their underlying molecule.48  
(59) The majority of respondents to the market investigation, both customers and 
competitors, also indicated that medica ted and non -medicated TPM products are 
interchangeable for consumers.49 For instance, a UK -based retailer explained that 
“there is a lack of education for medicated vs. non -medicated ”.50 Similarly, 
competitors explained that “p atients do not necessarily know  which patches are 
medicated or non medicated ” and that “ medicated and non -medicated patches are 
clustered in the same subcategory by OTC market analysts (e.g. Nicholas Hall), 
as these might alternatively be used by patients ”.51 Moreover, it results from th e 
market investigation that the degree of substitutability between medicated and 
non-medicated TPM products appear s even stronger when looking a specific 
TPM delivery mode (e.g. patches). […].52 
(60) From a supply -side perspective, the Commission notes that numerous TPM 
producers are offering TPM products in different formats. In addition, several 
TPM producers active in the EEA supply offer both medicated and non -
medicated products, including Beiersdorf and Reckitt Ben ckiser, in addition to 
the Parties.  
(61) Lastly, the market investigation revealed that a segmentation between adult and 
paediatric products is not relevant in the TPM space and that, generally, “ TPM 
products are for adult populations ”.53 
(62) Therefore, for the purposes of this Decision, the Commission c oncludes that the 
scope of the relevant product market in relation to the topical pain management 
                                                 
47  Form CO, Chapter 3, Section 6, paragraphs 40 -42. 
48  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 11.2 and 11.3.  
49  Replies to Q1 - Questionnaire to pharmacies and retailers, question 11.4. and Replies to Q3 - 
Questionnaire to competitors, question 14.3.  
50   Replies to Q1 - Questionnaire to pharmacies and retailers, question 11.6.  
51   Replies to Q3 - Questionnaire to c ompetitors (e.g. question 15.1).  
52   Replies to Q3 - Questionnaire to competitors (e.g. question 15.1).  
53  Replies to Q3 - Questionnaire to competitors, question 12.2.  
 
 
16 category amounts to the 02E1 OTC 3 class , which includes Muscular Pain Relief 
Topical, both medicated and non -medicated.   
3.1.2.2.  Geographic market definition   
(63) As ex plained in Section IV.1 of this Decision, the Commission has consistently 
defined the geographic markets for finished dose pharmaceutical product as being 
national in scope.54 In particular, the Commission has consistently defined TPM 
product markets as nat ional in scope,55 along with other markets defined on the 
basis of OTC classes.56  
(64) The market investigation in this case did not provide any indications that such 
market definition should be revisited, in particular in view of the differences 
among EEA Membe r States in price -setting, regulatory regimes, channels of 
distribution, and competitive landscape.  
(65) Therefore, for the purposes of this Decision, the Commission concludes that the 
geographical scope of the topical pain management markets is national.  
3.1.2.3.  Competitive assessment  
(66) In the topical pain area, the Transaction gives rise to affected markets with regard 
to OTC -to-OTC overlaps in the OTC 3 class 02E1 (Muscular Pain Relief 
Topical). In this product market, the Parties’ activities overlap in the 16 Mem ber 
States where Pfizer CH is active,57 and give rise to affected markets in following 
ten Member States : 
 Eight Group 1 affected markets in Austria, Belgium, Germany, Ireland, 
Italy, Netherland, Portugal, and the UK; and  
 Two Group 3 affected markets in Fra nce and Spain.  
(67) In line with the reasoning provided in paragraph 34 of the Decision, Group 3 
markets will not be discussed in this Decision.58  
                                                 
54  See most recently Commission decision of 20 November 2018 in case M.8955 - Takeda / S hire, 
paragraphs 56 to 59.   
55  See Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis 
Vaccines Business (Excl. Influenza) / Novartis Consumer Health Busines ; M.6705, Procter & 
Gamble/Teva Pharmaceuticals OTC II , Commission decision of 27 May 2005 in case M.3751 - 
Novartis/Hexal ; Commission decision of 29 June 2018 in case M.8889 - Teva / PGT OTC Assets . 
56   See, e.g., Commission decision of 29 June 2018 in case M.8889 - Teva / PGT OTC Assets , 
paragraphs 29 -31 and Commission decision of 4 August 2016 in case M. 7919 - Sanofi/ 
Boehringer Ingelheim Consumer Healthcare Business , paragraphs 26 -29. 
57   Namely, Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Italy, Luxembourg, 
Malta, N etherlands, Norway, Portugal, Spain, Sweden and the United Kingdom.  
58  Group 3 markets arise for Muscular Pain Relief Topical (OTC 3 class 02E1) in France and Spain. 
Regarding the French market, the Parties’ combined market shares reached [20 -30]%, [20 -30]%, 
and [20 -30]% by value in, respectively, 2016, 2017 and 2018. Pfizer CH’s increment amounted to 
[0-5]%, [0 -5]%, and [0 -5]% by value in, respectively, 2016, 2017 and 2018. Regarding the 
Spanish market, the Parties’ combined market shares reached [30 -40]%,  [30-40]%, and [30 -40]% 
 
 
 
17 (68) In addition, the Transaction does not give rise to affected markets in any  other  
EEA Member States in relation to  OTC -to-Rx overlaps .59 Moreover , as Pfizer CH 
does not market any Rx topical pain management product, the Transaction does 
not give rise to affected markets under any plausible market definition as regards 
Rx-to-Rx in the topical pain area.  
Austria – Muscular Pain Relief Topical (OTC 3 – 02E1)   
(69) In Austria, the Transaction gives rise to a Group 1 market for Muscular Pain 
Relief Topical (OTC 3 class 02E1).  
(70) In this market, GSK markets  Voltadol  and Voltadol Pflaster , two  medicated  
preparations t hat contain the active ingredient diclofenac  and that are respectively 
available in the form of gel and patch (also known as “plaster”), while  Pfizer CH 
markets ThermaCare , a single -use patch (also known as “ wrap”) based on heat 
cell technology.60 Until [Date], Pfizer CH also supplied in Austria a diclofenac -
based medicated gel under the brand name ThermaCare  Schmerzgel .61  
(71) Table 2 below presents the market shares of the Parties and their competitors over 
the past three years ( i.e., 2016, 2017, and 2018) in Austria for Muscular Pain 
Relief Topical.  
  
                                                                                                                                                 
by value in, respectively 2016, 2017 and 2018. Pfizer CH’s increment amounted to [0 -5]%, [0 -
5]%, and [0 -5]% by value, in, respectively,  2016, 2017, and 2018. Irrespective of whether the 
Transaction raises doubts as to its compatibil ity with the internal market as regards TPM products 
in France and/or in Spain, the Commitments offered by the Parties remove the overlap between 
GSK and Pfizer CH in this market (almost entirely in France and entirely in Spain), thereby 
addressing any pos sible competition concerns.  
59  In relation to OTC -to-Rx overlaps, the Transaction gives rise to affected markets in the ATC 3 
class M2A in three Member States, namely in Austria (Group 2), France (Group 3) and Germany 
(Group 3). For the purposes of the Dec ision, the Commission will not discuss further these 
potential markets as Pfizer CH does not have any Rx products and the impact of the Transaction 
for OTC topical pain management is discussed in Section IV.3.1.2 of this Decision. In any event, 
irrespectiv e of whether the Transaction raises serious doubts as to its compatibility with the 
internal market as regards Rx and OTC TPM products in Austria, France, and Germany, the 
Commitments offered by the Parties remove the overlap between GSK and Pfizer CH, ent irely in 
Austria and Germany, and almost entirely in France, thereby addressing any possible competition 
concerns.  
60  The heat cells contain iron, coal, water, and salt that react with air. The chemical reaction, called 
iron oxidation, provides low -level h eat, which increases blood  flow and accelerates the body’s 
natural healing process. ThermaCare  heat wraps are generally used for back, neck, muscle, joint 
and menstrual pain.  
61  For the sake of completeness, the Commission notes that Pfizer also sells Feldene Gel , a 
medicated topical analgesic in Austria. However, Feldene Gel , which is only sold Rx, is excluded 
from the scope of the Transaction and will not be transferred to GSK.  

 
 
19 (74) The Parties’ combined market share in Austria over the past three years are high 
(reaching [50-60]%, [50-60]% , and [50-60]%  by value , respectively in 2016, 
2017, and 2018). Moreover, contrary to the Notifying Party’s assertion, the 
market share contributed  by Pfizer CH  in this market is material ( reaching [10-
20]%, [10-20]% , and [10-20]% by value  in, respectively , 2016, 2017 and 2018 ). 
(75) Conversely, the market shares of the Parties’ competitors in Austria remain 
limited, especially when comparing with the Parties’ position in this Member 
State. Post -Transaction, the market share of the Combined CH Business’  first 
competitor, namely Merck, which was acquired in December 2018 by Procter & 
Gamble ,65 would amount to only [5-10]% (by value) . None of the other market 
players active in TPM in Austria had market shares exceeding [5-10]%  (by value) 
over the past three years.  
(76) On this basis, the marke t share data indicate that post -Transaction, the Combined 
CH Business will have very high market shares and benefit from a distant 
leadership position in the topical pain management area  (i.e. the  Transaction will 
result in a significant  gap between the me rged entity, which will be the market 
leader, and the other topical pain management suppliers) . The Transaction would 
eliminate a significant competitor and reinforce the distant leadership of GSK  
pre-Transaction , the market leader, over the other topical pain management 
suppliers. The Combined CH Business ’ distant leadership will also increase in 
terms of product offering as, with the Transaction, GSK will acquire an additional 
TPM product format (i.e. a well-established  non-medicated heat patch).  
(77) The results of the market investigation ha ve confirmed that market participants 
consider GSK’s Volta -brand and Pfizer’s ThermaCare  as two leading brands in 
the TPM category in various EEA countries, and notably in Austria.66 For 
instance, numerous competitors i dentified GSK and Pfizer CH as their top 
competitors in the TPM market in Austria.67 […].68 In addition, the majority of 
Austrian retailers , pharmacies , wholesalers and buying groups  view the Parties’ 
brands as “ must -have ” TPM products, i.e. products that th ey have to offer in their 
pharmacy to meet patients’ demand.69 Moreover, all the Austrian wholesalers and 
buying groups who responded to the market investigation identified Pfizer’s 
products amongst their three best -selling products in TPM in Austria in 2018.70 In 
addition, the Parties’ TPM products benefit from brand  loyalty as the majority of 
wholesalers and buying groups operating in Austria expect that customers would 
                                                 
65  See Commission decision of 27 August 2018 in case M.8974 – Procter & Gamble/Merck 
Consumer Health Business.  
66   Replies to Q1 - Questionnaire to pharmacies and retailers (e.g. questions 12, 24; and 25); replies 
to Q2 - Questionnaire to wholesalers and buying groups (e.g. questions 18, 19, and 20); and 
replies to Q3 - Questionnaire to competitors (e.g. question 19).  
67   Replies to Q3 - Questionnaire to competitors, question  19. 
68   Replies to Q3 - Questionnaire to competitors, questions 19.1.  
69  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 24 and 25. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, questions 19.2 and 20.2).  
70   Replies to Q2 - Questionnaire to wholesalers and buying groups, question 18.  
 
 
20 not switch to alternative products, even in case of a 5 -10% price increase of the 
Parties’ TPM product .71  
(78) Moreover, contrary to the Notifying Party’s claim , the results of the market 
investigation revealed a close competitive interaction between ThermaCare  and 
Volta -branded products in general, and to a stronger extent in relation to p atches. 
In Austria, f or instance, several Austrian retailers and pharmacies indicated that 
they could recommend a ThermaCare  product instead of a Voltaren  product (and 
vice versa).72 In addition, all the Austrian retailers and pharmacies indicated that 
they could recommend ThermaCare  instead of a GSK non -medicated patch (a 
product that GSK has started to launch in the EEA but not in Austria  to date ).73   
(79) In this context, the Commission notes that the vast m ajority of competitors that 
responded to the market investigation, as well as numerous customers, believe 
that the Transaction will have a negative impact on the TPM segment. For 
instance, competitors warned of the risks that “ prices will increase because the 
top competitor market share will be so strong that it will become a price 
maker ”.74 The results of the market investigation also pointed out to the risk that 
prices to customers would increase via the reduction of rebates, which would 
eventually be paid for by end -consumers.75  
(80) Several competitors expressly mentioned that the Transaction would have a 
strong impact on the TPM market in Austria . According to competitors, in 
Austria, “ GSK and Pfizer will achieve a dominant market position in the TPM 
category ”76 and the Transaction will have a “ significant impact on competition” , 
including because there will be “ less competitive products on the market” .77 
(81) A majority of Austrian customers (pharmacies, retailers, wholesalers and buying 
groups) that responded to th e market investigation consider that in Austria the 
Transaction will likely lead to an increase of TPM prices, including due to lesser 
rebates granted to pharmacies , a decrease of TPM choices for end -consumers, and 
a reduced visibility of third party’s products in pharmacies and retailers’ 
shelves.78  
(82) Respondents to the market investigation also indicated that the Combined CH 
Business’  market power will be reinforced by high barriers to entry or expansion. 
Competitors consider the TPM Austrian market is c haracterised by high barriers 
                                                 
71   Replies to Q2 - Questionnaire to wholesalers and buying groups (e.g. question 23).  
72  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 15 -19. 
73   Replies to Q1 - Questionnaire to pharmacies and retailers, question 17.  
74   Replies to Q3 – Questionnaire to competitors, question 29.  
75  Replies to Q2 – Questionnaire to wholesalers and buying groups, question 29; Replies to Q3 
Questionnaire to competitors, question 29.  
76   Replies to Q3 – Questionnaire to competitors, question 27.  
77   Replies to Q3 – Questionnaire to competitors, question 29.1.  
78  Replies to Q1 - Questionnaire to pharmacies and retailers, question 28; replies to Q2 - 
Questionnaire to wholesalers and buyi ng groups, e.g. question 24; and replies to Q3 – 
Questionnaire to competitors, e.g. question 31.  

 
 
22 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Stada  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [5-10]% [10-20]% [5-10]%  [10-20]%  [5-10]%  [10-20]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Form CO, Chapter 3, Section 6  
  
The Notifying Party’s view  
(87) The Notifying Party argues that the Transaction does not raise competition 
concerns in Belgium for topical pain products because the Parties’ product 
offerings in this market would be highly differentiated and distant competitors, 
especially because GSK on ly offers medicated products while Pfizer’s 
ThermaCare  is a non -medicated patch.81 The Notifying Party also insists that  
[Information on product launch strategy]  and that its medicated patch represents 
only [0-5]% share of the market in 2018 (by value) .  
(88) In addition, the Notifying Party argues that the Transaction does not raise 
competition concerns in Belgium because, in the medicated TPM segment, the 
Combined CH Business  will continue to face competition from a number of 
competitors. The Notifying Party also argues that Pfizer’s ThermaCare  is 
constrained by a number of alternative non -medicated patches  and perform s 
poorly.82  
Commission ’s assessment  
(89) The Commission notes that the Parties’ combined market share in Belgium over 
the past three years are very h igh ( reaching [60-70]%, [60-70]% , and [50-60]% 
by value, in, respectively , 2016, 2017 and 2018) even though Pfizer CH’s 
increment remains limited ( [0-5]%, [0-5]%, and [0-5]% by value  in, respectively , 
2016, 2017 and 2018 ).83  
(90) In Belgium, the market shares of the Parties’ competitors are limited, especially 
when compared with the Parties’ position. Post -Transaction, the market share of 
the Combined CH Business’  first competitor, i.e. namely Klosterfrau, would 
amount to only [5-10]% (by value  in 2018 ). Merck would be the only other player 
active in TPM in Belgium with a market share exceeding [5-10]% (by value) over 
the past three years.  
(91) On this basis, the market share data indicate that, post -Transaction, the Combined 
CH Busines s will have very high market shares and benefit from a distant 
leadership position in the TPM market. The Transaction will eliminate one 
                                                 
81  Form CO, Chapter 3, Sectio n 6, paragraphs 11 and 140.  
82  Form CO, Chapter 3, Section 6, paragraph 140.  
83  See e.g., Commission decision of 4 August 2015 in case M.7559 - Pfizer/Hospira , paragraphs 
172-179 and 245 -249, where the concentration raised serious doubts in relation to mar kets for 
which the increment was below 5%.  
 
 
23 competitor, which shares are limited but is otherwise a global -scale competitor. 
The market share data therefore indica te that the Transaction further reinforce s 
the Combined CH Business ’ distant leadership in Belgium , even though  Pfizer 
CH’s increment remains limited . The Combined CH Business’  distant leadership 
will also increase in terms of product offering as, with the  Transaction, GSK will 
acquire an additional TPM product format (i.e. non -medicated heat patch).  
(92) The results of the market investigation ha ve confirmed that the Notifying Party 
has a strong leadership on the TPM market in Belgium, which will be further 
reinforced by the Transaction. For instance, the Volta -branded products are 
recurrently quoted by retailers as the number one recommendation by 
pharmacists.84 While it results from the market investigation that ThermaCare ’s 
is less strong than GSK’s Volta -brand ed products , Pfizer CH’s products are 
however quoted within pharmacists’ top -5 recommendation.85 In addition, some 
Belgium  customers (retaile rs, pharmacies , wholesalers and buying groups)  
indicated that they view  Pfizer’s products as “must -have”.86 In addition, a 
majority of Belgian intermediary customers (i.e., wholesalers and buying groups) 
expect that, in case of 5 -10% price increase of the P arties’ TPM products, 
customers would not switch their orders from the Parties  towards alternative 
products, especially  because “ brand awareness ” plays a strong role in Belgium.87  
(93) Moreover, contrary to the Notifying Party’s claim , the results of the market  
investigation revealed that there is a degree of competitive closeness between 
ThermaCare  and Volta -branded products in Belgium as s ome respondents  
(retailers and pharmacies)  indicated that they could recommend a Pfizer CH TPM 
product instead of a GSK TPM  product  (and vice versa) .88 In addition, the vast 
majority of Belgian  retailers and pharmacies indicated that they could recommend 
ThermaCare  instead of a GSK non -medicated patch (a product that GSK has 
started to launch in the EEA but not in Belgium to da te).89  Moreover, half of the 
wholesalers and buying groups that responded to the market investigation cited 
ThermaCare  as one of the three next -best selling alternative to a GSK product.90 
(94) In this context, the Commission further notes that, as explained abo ve in 
paragraph  79, the vast majority of competitors that responded to the market 
investigation, as well as numerous customers, believe that the Transaction will 
have a negative impact on the TPM segment. In addition, a number of customers 
(pharmacies, retailers, wholesaler s and buying groups) active in Belgium consider 
                                                 
84   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 12.  
85  Replies to Q1 - Questionnaire to pharmacies and retailers, question 12.  
86  Replies to Q1 - Questionnaire to pharmacies and retailers,  question 25. Replies to Q2 – 
Questionnaires to wholesalers and buying groups, question 19.2.  
87   Replies to Q2 – Questionnaires to wholesalers and buying groups, question 23.  
88  Replies to Q1 - Questionnaire to pharmacies and retailers, question 18.  
89   Replies to Q1 - Questionnaire to pharmacies and retailers, question 17.  
90   Replies to Q2 – Questionnaire to wholesalers and buying groups, question 20.1.1.  

 
 
25 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Stada  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Boehringer Ingel  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Form CO, Chapter 3,  Section 6  
The Notifying Party’s view  
(98) According to the Notifying Party, the Transaction does not raise competition 
concerns in Germany for topical pain products because the best -selling products 
of GSK ( Voltaren  gel) and Pfizer CH ( ThermaCare  heat patch) are not close 
competitors as one is a medicated gel while the other is a non -medicated patch. In 
addition, the German TPM  market is dynamic with multiple entries in all product 
sub-categories.92 
(99) The Notifying Party also insists that ThermaCare  plays only a very limited role in 
the TPM market in Germany as would be illustrated by Pfizer’s low market share 
by volume .93 In addition, the Notifying Party argues that the Transaction does not 
raise serious competition concerns in Germany as the medicate d gel segment 
would be dynamic and, in the patch segment, ThermaCare ’s main competitor is 
Beiersdorf, not GSK.  
Commission ’s assessment  
(100)  The Commission notes that Parties’ combined market share in Germany over the 
past three years are very high ( reaching [50-60]%, [50-60]% , and [50-60]%  by 
value, respectively in 2016, 2017, and 2018) . Moreover, Pfizer CH’s increment in 
this market is also material ([10-20]%, [10-20]%, and [10-20]%,  by value, 
respectively in 2016, 2017, and 2018 ).  
(101)  Conversely, the market sh ares of the Parties’ competitors in Germany remain 
limited, especially when compared with the Parties’ position. Post -Transaction, 
the market share of the Combined CH Business’  first competitor, namely Merck, 
would amount to only [5-10]% (by value)  in 2018 . Merck would be the only other 
player active in topical pain management in Germany with market shares 
exceeding [5-10]%  (by value) over the past three years.   
(102)  On this basis, the market share data indicate that post -Transaction, the Combined 
CH Business  will have very high market shares and benefit from a distant 
leadership position in the topical pain management area in Germany. The 
Transaction would eliminate a significant competitor to GSK  and reinforce the 
gap between the market leader and the other top ical pain management suppliers.  
(103)  The results of the market have investigation has confirmed that the Parties’ 
products have a strong leadership on the TPM market in in Germany. In 
                                                 
92  Form CO, Chapter 3, Section 6, paragraph 149.  
93  Form CO, Chapter 3, Section 6, paragraph 125.  
 
 
26 Germany, the Volta -branded  and ThermaCare  products are top TPM products. 
The vast majority of German pharmacies and retailers, and all the German 
wholesalers, and buying groups view the Parties’ brands as must -have  products.94 
It results from the market investigation that Volta -branded products are widely 
mentioned as the number  one recommendation by pharmacists, while 
ThermaCare  products appear in the top 5 of recommendations.95 In addition, a 
majority of (intermediary) customers active in Germany expect that customers 
would not switch their orders from the Parties  towards altern ative products, even 
in case of 5 -10% price increase of the Parties’ TPM products.96 On this note,  
German customers indicated that end -consumer’s brand awareness and loyalty is 
very strong in the TPM market in Germany.97  
(104)  In addition, the results of the mark et investigation revealed that there is close 
competitive interaction between ThermaCare  and Volta -branded products.98 The 
vast majority of German retailers and pharmacies consider GSK products 
amongst the most suitable alternatives to ThermaCare , while ThermaCare  
products appear in the most suitable alternatives to Volta -branded products .99 The 
vast majority of German retailers indicated that they could recommend a Pfizer 
CH TPM product instead of Voltaren .100 Similarly, all German retailers 
responded that they could recommend a Pfizer CH TPM product instead of the 
GSK (recently launched) non -medicated patch.101  
(105)  The market investigation also revealed that the Combined CH Business  would 
benefit from a distant leadership position, not only in terms of shares of  sales, but 
also in terms of TPM portfolio as it would offer successful products in the form 
of gel/cream, spray, and medicated and non -medicated patches.  
(106)  In this context, the Commission further notes that, as explained above in 
paragraph 79, the vast majo rity of competitors that responded to the market 
investigation, as well as numerous customers, believe that the Transaction will 
have a negative impact on the TPM segment.  
(107)  In addition, several competitors expressly mentioned Germany as a Member State 
wher e the Transaction would have a significant impact on the TPM market. 
According to competitors, in Germany, the Transaction will have a “ significant 
impact on competition”102 and “lead to more market and trade control” 103 from 
                                                 
94  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 24 and 25. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, questions 19.2 and 20.2.  
95  Replies to Q1 - Questionnaire to pharmacies and retailers, question 12.  
96   Replies to Q2 - Questionnaire to pharmacies and retailer s, question 23.  
97  Replies to Q1 - Questionnaire to pharmacies and retailers, question 23.  
98  Replies to Q1 - Questionnaire to pharmacies and retailers, question 17.  
99  Replies to Q1 - Questionnaire to pharmacies and retailers, question 14.  
100   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 15 -17. 
101   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 18 -19. 
102   Replies to Q3 - Questionnaire to competitors, question 27.1.  
103   Replies to Q3 - Questionnaire to competito rs, question 28.1.  
 
 
27 the merged entity for the following reasons:  First, the results of the market 
investigation pointed out to risks of price increases for TPM products in 
Germany. This concern was relayed by German customers (pharmacies, retailers 
and intermediaries)104, as well as competitors105, one of  which expect ing that 
GSK “ will further increase prices going forward ”106 given its high market share 
and the fact that generic competition plays “ only a minor role ”. Second, the 
results of the market investigation revealed concerns of lesser choice of TPM 
products in Germany. This concern was relayed by German customers107, as well 
as competitors, one of which “ expect that the customers will have less choice 
between relevant TPM products ”.  
(108)  Respondents to the market investigation have also indicated that the Combined 
CH Business’  market power will be reinforced by high barrier to entry.  A 
German -based competitor for instance explained that in the TPM segment post -
Transaction, “ the market entry for other competitors will be significantly 
impeded ”. According to t he majority of customers, brand awareness and loyalty 
constitute the main barrier to enter the TPM segment in Germany108. Competitors 
confirmed that building brand awareness requires a very high level of investment, 
including in the patch segment.109 As explained by a large -scale competitor, 
“considerable financial resources as well as R&D/regulatory efforts are needed 
to build a new brand in any of the mentioned markets ” and “ financial limitation 
to build up a new brand requires > 5yrs ROI ”. 
(109)  It furth er results from the market investigation that the Transaction risks to have a 
stronger negative impact of the Transaction in the patch sub -segment. As 
described above, the Parties are both active in this growing sub -segment and 
barriers to enter the patch segment were described by competitors as higher than 
to enter the other TPM product -segments because “ registration and 
manufacturing task need to be performed and take >3 yrs aprox ”. 
(110)  In view of the above and of all available evidence, the Commission conclu des that 
the Transaction raises serious doubts as to its compatibility with the internal 
market as regards TPM products in Germany, as the Transaction would lead to a 
creation or strengthening of dominance in this market. However, the  
commitments  offered b y the Parties remove most of the overlap between GSK 
and Pfizer CH in this market, thereby addressing the competition concerns  
identified . 
  
                                                 
104   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 28.1 and 28.2 and Replies to 
Q2, Questionnaire to wholesalers and buying groups, question 24.2 and 24.3.  
105   Replies to Q3 - Questionnaire to competitors, question 28. 
106   Replies to Q3 - Questionnaire to competitors, question 29.1.  
107   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 28.3 and Replies to Q2, 
Questionnaire to wholesalers and buying groups, question and 24.4.  
108  Replies to Q1 - Ques tionnaire to pharmacies and retailers, question 23.  
109  Replies to Q3 - Questionnaire to competitors, question 25.  

 
 
29 (116)  In addition, the Notifying Party argues that no competition concerns will arise 
post-Transaction in Ireland for topical pain products because: (i) in the medicated 
product sub -segment, there is no overlap between the Parties and the Combined 
CH Business  will continue to face the presence of significant competitors such as 
Diclac , Ibugel  and Nurofen ; and (ii) in the non -medicated product sub -segment, 
which is relatively narrow, Pfizer CH does not view GSK’s heat patch as a strong 
competitor, unlike Deep Heat, Boots and other private label products.112  
Commission ’s assessment  
(117)  The Parties’ combined market share in Ireland over the past three years are very 
high ( reaching [50-60]%, [60-70]%, and [50-60]% by value, respectively in 2016, 
2017, and 2018) . Moreover, Pfizer CH’s increment in this market is material 
(reaching [10-20]%, [10-20]% , and [10-20]%  by value, respectively in 2016, 
2017, and 2018 ).  
(118)  Conversely, the market shares of the Parties’ competitors in Ireland remain 
limited, especially when compared to the Parties’ position. Post -Transaction, the 
market share of the Combined CH Business’  first competitor, namely Rohto, 
would amount to [10-20]% (by value ) in 2018. Only t wo other players active in 
topical pain management in Ireland had market shares exceeding [5-10]% (by 
value) over the past three years (namely Dermal and Reckitt Benckiser, whose 
respective shares were lower than [5-10]%).  
(119)  On th is basis, the market share data indicate that post -Transaction, the Combined 
CH Business  will have very high market shares and benefit from a distant 
leadership position in the topical pain management area. The Transaction would 
eliminate a significant com petitor to GSK  and therefore reinforce further the gap 
between the market leader and the other TPM  suppliers.  
(120)  The results of the market investigation ha ve confirmed that the Parties’ products 
have a leadership position on the TPM market in the EEA, includ ing in Ireland. In 
Ireland, several retailers and pharmacies indicated that they consider GSK and 
Pfizer’s TPM products as must -have  products.113 Moreover, V oltarol  is widely 
mentioned as the number one recommendation by pharmacists, while 
ThermaCare  products appear in the top 5 of recommendations.114 Moreover, all 
the wholesalers and buying groups that responded to the market investigation 
cited ThermaCare  amongst their 3 best -selling products in the TPM space in 
Ireland.115 
(121)  Moreover, contrary to the Notifying Party’s  claim, the results of the market 
investigation revealed a close competitive interaction between  GSK and Pfizer 
CH’s TPM products in general, and in particular in relation to patches. Thus, Irish 
retailers and pharmacies indicated that the y would recommend ThermaCare 
                                                 
112  Form CO, Chapter 3, Section 6, paragraph 173. 
113   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 24 -25. 
114  Replies to Q1 - Questionnaire to pharmacies and retailers, question 12.  
115   Replies to Q2 - Questionnaire to wholesalers and buying groups, question 18.  

 
 
31 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Ibsa [5-10]%  [0-5]% [5-10]%  [0-5]% [5-10]%  [0-5]% 
Bayer  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  
Recordati  [5-10]%  [0-5]% [5-10]%  [0-5]% [0-5]% [0-5]% 
Pharmanutra  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Chiesi  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Mediolanum  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Menarini  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Boiron  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Mylan  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Theiss 
naturwaren  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Esi [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Guna  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Dompe  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Pietrasanta 
pharma  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [10-20]% [10-20]%  [10-20]%  [20-30]% [10-20]%  [20-30]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Form CO, Chapter 3, Section 6  
The Notifying Party’s view  
(127)  According to the Notifying Party, the Transaction does not raise competition 
concerns in Italy for topical pain products because the Parties’ main products are 
not close substitutes. The Notifying Party insists that there is no overlap between 
the Parties in the medicated product segment, for which GSK does not view 
ThermaCare  as a closely competing product, and considers that there are 
numerous alternatives.  
(128)  In addition, the Notifying Party argues that in the narrower heat patch segment, 
Voltaren Termico  is just one of a range of competitors (including Lasonil Termico  
and Calmadol ).  
(129)  The Notifying Party also insists that the Parties’ shares are lower on the basis of 
volume data.120  
Commission ’s assessment  
(130)  The Parties’ combined market share in Italy over th e past three years are high 
(reaching [40-50]%, [40-50]% , and [40-50]%  by value, respectively in 2016, 
2017, and 2018) . Moreover, Pfizer CH’s increment in this market is material 
(reaching [5-10]%, [5-10]% , and [5-10]%  by value, respectively in 2016, 2017,  
and 2018 ).  
                                                 
120  Form CO, Chapter 3, Section 6, paragraph 185.  
 
 
32 (131)  Conversely , the market shares of the Parties’ competitors in Italy remain limited, 
especially when compared to the Parties’ position. Post -Transaction, the market 
share of the Combined CH Business’  first competitor, i.e. namely Alfasigma, 
would amount to [5-10]%  (by value)  in 2018 .  
(132)  On this basis, the market share data indicate that post -Transaction, the Combined 
CH Business  will have high market shares and benefit from a distant leadership 
position in the topical pain ma nagement area, while the Transaction would 
eliminate a significant competitor and therefore further reinforce the gap between 
the market leader and the other topical pain management suppliers.  
(133)  The results of the market investigation ha ve confirmed that th e Parties’ products 
have a strong leadership on the TPM market in Italy. For instance, numerous 
competitors indicated that GSK and Pfizer were their top competitors in the TPM 
segment in Italy.121 A competitor commented that the Parties would have a 
“dominan t position in TPM ”. In addition, the vast majority of Italian customers 
view the Parties’ brand as must -have  products.122 Italian pharmacies and retailers 
mentioned both GSK and Pfizer CH’s TPM products as part of the top -5 TPM 
product s they would recommend to patients.123 The Parties’ TPM products 
benefit from brand loyalty in Italy as  a majority of (intermediary) customers 
expect that, in case of 5 -10% price increase of the Parties’ TPM products, (retail) 
customers would not switch their orders from the Parties  towards alternative 
products.124 More generally, many market respondents insisted on the strong role 
of “brand loyalty ” in the TPM space in Italy.125 
(134)  Moreover, contrary to the Notifying Party’s claim , the results of the market 
investigation revealed a close competitive interaction between ThermaCare  and 
the Volta -branded products, in particular in relation to patches. F or instance, 
several Italian retailers and pharmacies indicated that they could recommend 
ThermaCare  instead of a Voltaren  product (and vice versa), and even more so 
instead of a Voltaren  patch (and vice versa).126 In addition, the results of the 
market investigation indicate that ThermaCare constitute s one of the most 
suitable alternatives to Volta -branded products  for retailers and pharmacies (and 
vice versa).127 
(135)  In this context, the Commission further notes that, as explained in paragraph 79, 
the vast majority of competitors that responded to the market investigation, as 
well as numerous customers, believe that the Transaction will ha ve a negative 
impact on the TPM segment. Regarding Italy in particular, market respondents 
indicated that the Transaction will have a “ significant impact on competition ”; 
                                                 
121   Replies to Q3 - Questionnaire to Competitors, question 19.  
122  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 24 and 25. Replies to Q2 - 
Questi onnaire to wholesalers and pharmacies, questions 19.2 and 20.2.  
123   Replies to Q1 - Questionnaire to pharmacies and retailers, question 19 . 
124   Replies to Q2 – Questionnaires to wholesalers and buying groups, question 23.  
125   Replies to Q1 - Questionnaire to pharmacies and retailers, question 23.1 . 
126  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 1519 .  
127  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 13 and 14.  

 
 
34 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
OTC medical  [5-10]%  [5-10]%  [5-10]%  [0-5]% [5-10]%  [0-5]% 
Perrigo  [5-10]%  [0-5]% [5-10]%  [0-5]% [0-5]% [0-5]% 
Biohorma  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Weleda  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [10-20]%  [20-30]%  [10-20]% [10-20]% [10-20]% [20-30]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Form CO, Chapter 3, Section 6  
The Notifying Party’s view  
(141)  According to the Notifying Party, the Transaction does not raise competition 
concerns in the Netherlands for topical pain products because the Parties are not 
each other’s clos est competitor  and will continue to face more direct competition. 
The Notifying Party further claims that, amongst medicated products, Pfizer CH’s 
Advil gel only represents a [0-5]% increment and that, amongst non -medicated 
patches, GSK is not a strong competitor, while there are several other heat 
patches available, including private label  products , and Pfizer CH no longer 
actively supports ThermaCare’s  growth.132 
(142)  The Notifying Party also argues that the Parties’ combined market shares and 
increment would  be more limited on the basis o f volume -based shares .133 
Commission ’s assessment  
(143)  The Parties’ combined market share in the Netherlands over the past three years 
are high ( reaching [30-40]%, [40-50]%, and [40-50]%  by value, respectively in 
2016, 2017, and 201 8). Moreover, Pfizer CH’s increment in this market is 
material ( reaching [5-10]%, [5-10]%, and [5-10]% by value, respectively in 2016, 
2017, and 2018 ).  
(144)  Conversely, the market shares of the Parties’ competitors in the Netherlands 
remain limited, especially when compared to the Parties’. Post -Transaction, the 
market share of the Combined CH Business’  first competitor, namely Schwabe, 
would amount to [10-20]% (by value in 2018).134 None of the other TPM market 
players active in the Netherlands had market shares exceeding [5-10]% (by value) 
in 2018.135  
(145)  On this basis, the market share data indicate that, post -Transaction, the Combined 
CH Business  will have high ma rket shares and benefit from a distant leadership 
position in the TPM area.  
                                                 
132  Form CO, Chapter 3, Section 6, paragraph 199 and 201.  
133  Form CO, Chapter 3, Section 6, paragraph 200.  
134   Form CO, paragraph 198.  
135   Form CO, paragraph 198.  
 
 
35 (146)  The market investigation has confirmed that the Parties’ products have strong 
leadership on the TPM market in the Netherlands, with limited competition.136 
For instance, Dutch whole salers noted that “ With the integration of Pfizer, the 
new combination has a strong position in the market for TPM products. 
Competitors have weaker brand positioning and the products are in the opinion 
of consumers for a more superficial indication ”137 and that “ Voltaren is the well -
known market leader in branded TPM OTC products, others follow at a great 
distance ”.138 Moreover, the vast majority of competitors indicated that generic 
and private label TPM products exercise limited or no constraint on branded T PM 
products in the EEA, while listing GSK (extensively) and Pfizer (to a lesser 
extent) among their top 3 competitors in the TPM segment.139  
(147)  In addition, the vast majority of Dutch pharmacies and retailers mentioned the 
Parties’ TPM products as part of the top-5 TPM products that they would 
recommend to patients.140 All Dutch retailers, pharmacies, wholesalers, buyer 
groups, pharmacies and retailers that responded to the market investigation 
indicated that GSK’s TPM OTC products are must -have .141 The vast majority of 
these same respondents also considered Pfizer’s products to be must -have s.142 
Moreover, several Dutch wholesalers and buying groups who responded to the 
market investigation identified Pfizer’s products amongst their three best -selling 
products in TPM in the Netherlands in 2018.143 Dutch wholesalers and buyer 
groups also considers patients loyal to GSK and Pfizer CH’s TPM products and 
expect that pharmacies would not switch their orders towards alternative 
products, even in case of a 5 -10% price increase of the Parties’ TPM products.144 
(148)  Moreover, the results of the market investigation revealed that there is close 
competitive interaction between ThermaCare  and Volta -branded products in the 
Netherlands (patches and gels). For instance, a major ity of Dutch retailers and 
pharmacies indicated that they could recommend a ThermaCare  product instead 
                                                 
136   Replies to Q3 – Questionnaire to Competitors, questio n 19.   
137  Replies to Q2 – Questionnaire to Wholesalers and Buying Groups, questions 24.1.1, 24.2.1 and 
24.3.1.  
138   Replies to Q2 – Questionnaire to Wholesalers and Buying Groups, question 18.1.1  
139   Replies to Q3 – Questionnaire to Competitors, question 24. 
140   Replies to Q1 – Questionnaire to pharmacies and retailers, question 12. 
141 Replies to Q1 - Questionnaire to Pharmacies and Retailers, question 24. Replies to Q2 
Questionnaire to Wholesalers and Buying Groups, question 20.2; Replies to Q1 – Questionn aire to 
Pharmacies and Retailers – Question 24.  
142  Replies to Q1 - Questionnaire to Pharmacies and Retailers, question 25. Replies to Q2 – 
Questionnaire to Wholesalers and Buying Groups, question 19.2; Replies to Q1 – Questionnaire to 
Pharmacies and Retail ers – Question 25. 
143   Replies to Q2 - Questionnaire to wholesalers and buying groups, question 18.  
144   Replies to Q2 – Questionnaire to Wholesalers and Buying Groups, question 23. 

 
 
37 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Italfarmaco  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Faes [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Theralab  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Stada  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Silfarmaplus  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Bastos viegas  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Aurobindo  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Grupo  tecnimede  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Beiersdorf  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [10-20]% [10-20]% [10-20]% [10-20]% [10-20]% [10-20]% 
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Form CO, Chapter 3, Section 6  
The Notifying Party’s view  
(153)  According to the Notifying Party, the Transaction does not raise competition 
concerns in Portugal for topical pain products because the Parties are not each 
other’s closest competitor. The Notifying Party further claims that, amongst 
medicated products, there is no overlap and that amongst non -medicated patches, 
which represent a relatively low share of the demand, there are established 
competitors and GSK’s imminent entry is not expected to change the competitive 
dynamics.149 
(154)  The Notifying Party also argues that the Parties’ combined market shares and 
increment would be more limited o f the basis on volume -based shares .150 
Commission ’s assessment  
(155)  The Parties’ combined market share in Portugal over the past three years are high 
(reaching [50-60]%, [40-50]%, and [40-50]% by value, respectively in 2016, 
2017, and 2018) , even though the increment brought by Pfizer CH is limited 
(reaching [0-5]%, [0-5]%, and [0-5]% by value, respectively in 2016, 2017, and 
2018 ).  
(156)  In Portugal , the market shares of the Parties’ competitors are limited, especially 
when compared to the Parties’. Post -Transaction, the market share of the 
Combined CH Business’  first competitor, namely Bial, which was acquired in 
December 2018 by Procter & Gamble , would amount to only [5-10]% (by value)  
in 2018 . None of the other players active in topical pain management in Portugal 
have held market shares exceeding [5-10]% (by value) over the past three years.   
(157)  On this basis, the market share data indicate that post -Transaction, the Combined 
CH Business  will have high market shares and benefit from a distant leadership 
                                                 
149  Form CO, Chapter 3, Section 6, paragraphs 210 and 212.  
150  Form CO, Chapter 3, Section 6, paragraph 211.  
 
 
38 position in the TPM area , which will be further reinforced by the Transaction 
through the removal of a global -scale competitor  (whose share is limited  but still 
is a close competitor to the Combined CH Business’ [Information on product 
launch strategy] ).  
(158)  The results of the market investigation have confirmed that market participants 
consider GSK’s Volta -brand and Pfizer’s ThermaCare  as two important brands in 
the TPM category in Portugal. […].151 In addition, a number of Portuguese 
pharmacies and retailers consider that not only Voltaren  but also Thermacare  are 
must -have product s.152 Moreover, a majority of wholesalers and buying groups 
operating in Portugal consider s that customers would not switch towards 
alternative products, even in case of a 5 -10% price increase of the Parties’ TPM 
product,153 which illustrates patients’ brand loyalty toward the Parties’ TPM 
products.154  
(159)  Moreover, the market investigation indicated that there is a competitive 
interaction between  ThermaCare  and Volta -branded products in Portugal . Some 
retailers indeed indicated that they could recommend GSK products instead of  
ThermaCare .155  In Portugal , for instance, several Portuguese retailers and 
pharmacies indicated that they could recommend a ThermaCare  product instead 
of a Voltaren  product (and vice versa).156 In addition, the vast majority of 
Portuguese  retailers and pharmacies indicated that they cou ld recommend 
ThermaCare  [Information on product launch strategy] .157   
(160)  In this context, the Commission further notes that, as explained above in 
paragraph 79, the vast majority of competitors that responded to the market 
investigation, as well as numerous cu stomers, believe that the Transaction will 
have a negative impact on the TPM segment, including in terms of higher barriers 
to entry, higher prices, and less choice .  
(161)  In Portugal in particular, competitors indicated that the Transaction will be 
“increasing  even more the dominant position ” of the Combined CH Business  
[…].158 The results of the market investigation revealed that competitors fear a 
negative impact on the competitive dynamics of the TPM market in Portugal. 
They indeed indicated that the “[T] ransa ction will create a strong player position 
with powerful negotiation capacities and higher customers demanding behaviour 
of those products ”;159 […].160 Competitors also raised risks of higher barriers to 
                                                 
151   Replies to Q1 - Questionnaire to Pharmacies and Retailers, question 30.  
152   Replies to Q1 - Questionnaire to Pharmacies and Retailers, question 25.  
153   Replies to Q2 - Questionnaire to wholesalers and buying groups, question 23.  
154   Replies to Q1 - Questionnaire to Pharmacies and Retailers, question 23.  
155   Replies to Q1 - Questionnaire to Pharmacies and Retailers, questions 18 and 19.  
156  Replies to Q1 - Questionnaire  to pharmacies and retailers, questions 15 -19. 
157   Replies to Q1 - Questionnaire to pharmacies and retailers, question 17.  
158   Replies to Q3 - Questionnaire to Competitors, question 27.2. 
159   Replies to Q3 - Questionnaire to Competitors, question 29 .1. 
160   Replies to Q3 - Questionnaire to Competitors, question 27.2. 

 
 
40 The Notifying Party’s view  
(166)  According to the Notifying Party, the Transaction does not raise competition 
concerns in the United Kingdom  for topical pain products because the Parties are 
not each other’s closest competitor. The Notifying Party further claims that, 
amongst medicated products, there is no overlap and, in the heat patch space, the 
Parties face competition from w ell-established players with significant 
promotional support, as well as a range of private label products, such as those 
from Boots and Tesco that are not by the IQVVA market shares.162 
(167)  The Notifying Party also argues that the Parties’ combined market share s and 
increment would be more limited on the basis o f volume -based shares .163 
Commission ’s assessment  
(168)  The Parties’ combined market share in the United Kingdom over the past three 
years are high (reaching [20-30]%, [30-40]%, and [30-40]% by value, 
respectivel y in 2016, 2017, and 2018) , even though Pfizer CH is limited ( [0-5]%, 
[0-5]% and [0-5]% by value respectively in 2016, 2017, and  2018).   
(169)  In the U K, the market shares of the Parties’ competitors in the United Kingdom 
remain limited, especially when compared to the Parties’ position. Post -
Transaction, the market share of the Combined CH Business’  first competitor, 
namely Rohto , would amount to only [5-10]%. None of the other market players 
active in TPM in Austria had market shares exceeding [5-10]% (by value) over 
the past three years.   
(170)  On this basis, the market share data indicate that post -Transaction, the Combined 
CH Business  will have high market sh ares and benefit from a distant leadership 
position in the TPM area, while the Transaction would eliminate a significant 
competitor to GSK (with global scale an d material market share) and reinforce 
the gap between the market leader and the other topical pain management 
suppliers.  
(171)  In addition, the results of the market investigation revealed a close competitive 
interaction between the products of Pfizer CH and GSK in the TPM market in t he 
United Kingdom. Competitors referred to Pfizer’s Therma Care as a close 
substitute to GSK’s Volta -brand ed products .164 Moreover, the majority of 
customers (retailers, pharmacies, wholesalers, and buying groups) explained that 
they would recommend a Pfizer CH TPM product as an alternative for a GSK 
product, and vice -versa.165  
(172)  In view of the above and of all available evidence, irrespective of whether the 
Transaction raise s serious doubts as to its compatibility with the internal market 
as regards TPM products  in the United Kingdom, the commitments offered by the 
                                                 
162  Form CO, Chapter 3, Section 6, paragraphs 211.  
163  Form CO, Chapter 3, Section 6, paragraphs 211.  
164   Replies to Q3 – Questionn aire to competitors, question 21, 22 and 23.  
165   Replies to Q1 – Questionnaire to pharmacies and retailers, questions 17, 18 and 19.  
 
 
41 Parties remove entirely the overlap between GSK and Pfizer CH in this market, 
thereby addressing any possible competition concerns.  
3.1.2.4.  Conclusion   
(173)  In view of the above and of all available evidence, the Commission concludes that 
the Transaction raises serious doubts as to its compatibility with the internal 
market in relation to TPM products, as it would lead to a creation or 
strengthening of a domin ant position in various EEA Member States.  
(174)  However, the commitments offered by the Parties remove almost entirely the 
overlap between GSK and Pfizer CH in these markets, thereby addressing any 
competition concerns.  
3.1.3.  Systemic pain management  
(175)  While GSK marke ts SPM products across the EEA, Pfizer CH is active in a more 
limited number of EEA Member States. GSK’s main brand in the SPM space is 
Panadol , which is a n OTC  paracetamol -based product, while Pfizer CH’s main 
brand is Advil , which is an ibuprofen -based OTC product.166 
3.1.3.1.  Product market definition   
(176)  In terms of ATC classification, most OTC pain management products are 
classified in the ATC classes "N2 – Analgesics", "M – Musculo -Skeletal 
System", or "A – Alimentary Tract and Metabolism" . In terms of OTC 
classification, most products belong  to the OTC class 02 , as shown in Table 1 . 
Table 10 below summarises the sub -categories of systemic pain management 
ATC classes N2, M and A, and the one OTC class 02 relevant in the present case.  
  
                                                 
166  Form CO, Chapter 4, Section 6, paragraph 2. Pfizer CH also sells paracetamol and/or 
acetylsalicylic acid -based analgesi cs only in the UK, Ireland, Malta and  Germany. GSK supplies 
ibuprofen -based products only in Italy and Romania (Form CO, Chapter 4, Section 6, footnote 6).  
 
 
42 Table 10 - SPM treatments – ATC/OTC Classes  
ATC Code   OTC Code  
Oral Intake (Systemic Products)  
N2B  Non-Narcotics and  Anti-
Pyretics  General Pain Relief Adult  02A1  
General Pain Relief 
Paediatric  02A2  
N2C  Anti-Migraine Preparations  Migraine Relief  02C1  
M1A  Anti-Rheumatics, Non -
Steroidal  Muscle Pain Relief 
Systemic  02E2  
M5X  All Other Musculoskeletal 
Products  Systemic Joint Care 
Products  02G2  
G2X1  Gynaecological 
Antispasmodics  Dysmenorrhea Relief  02B1  
A3D  Antispasmodic/Analgesic  
Combinations  Non-Specific 
Antispasmodics  02H1  
Source: Form CO, Chapter 4, Section 6, Table SPM 2  
(177)  At ATC 3 level, t he Parties’ activit ies overlap in the EEA only in relation to the 
ATC 3 classes N2B (which correspond s to the combination of the OTC classes 
02A1 and 02A2) and N2C  (which corresponds to the OTC 3 class 02C1).  
 The ATC 3 class  N2B encompasses non -narcotics and anti -pyretic 
treatments, which are non -specific analgesic products, typically containing 
either paracetamol , or a non -steroidal anti -inflammatory drug (“NSAID”;  
for example: ibuprofen  or diclofenac ), or a combination of both, as well as 
other active ingredients, such as caffeine .167 The ATC 3 class N2B is further 
subdivided into two ATC 4 classes: N2B1 (prescription non -narcotics and 
anti-pyretics) and N2B2 (non -prescription non -narcotics and antipyretics). 
At ATC 4 level, the Parties overlap in N2B2 that corresponds to the OTC 3 
classes 02A1 (adults) , which include OTC products for general pain relief 
for adults only, and (ii) 02A2  (paediatrics),  which include OTC products for 
general pain relief for children only. At the OTC level, the activities of the 
Parties overlap in relation to 02A1 (for adult products), but not in relation to 
02A2 (for children products).  
 The ATC 3 class N2C encompasses treatments with para cetamol or 
NSAIDs as active ingredients which are classified as anti -migraine 
                                                 
167  Form CO, Chapter 4, Section 6, paragraph 12.  
 
 
43 preparations.168 This ATC 3 class corresponds to the OTC 3 class 02C1 
(“Migraine Relief”).  
Commission ’s precedents  
(178)  In previous decisions, the Commission analysed the ATC  3 class N2B (non -
narcotics and anti -pyretics) as a separate product market .169  
(179)  In addition, t he ATC 3 class N2B is further subdivided into two ATC 4 classes: 
N2B1 (prescription non -narcotics and anti -pyretics) and N2B2 (non -prescription 
non-narcotics and antipyreti cs), the latter corresponding to the OTC 3 classes 
02A1 (adults) and 02A2 (paediatric). As discussed in Section  IV.1.1 , the 
Commission has generally considered Rx and OTC products as belonging to 
separate markets . Thus,  in relation to systemic pain managem ent specifically, the 
Commission previously analyse d proposed concentrations at the level of N2B2 / 
02A1+02A2 (i.e., OTC products only) .170  
(180)  The Commission also considered that a further distinction could be made between 
pain relief medicines for adults (whi ch corresponds to the OTC 3 class 02A1) and 
for children (which corresponds to the OTC 3 class 02A2), but has ultimately left 
the question open.171 
(181)  Finally, the Commission previously considered in limited instances molecule -
based markets in general pain reli ef products172 and assessed overlaps on the basis 
of specific molecules across systemic pain relief products (comprising multiple 
ATC 3 classes), but ultimately left this question open.173  
                                                 
168  Form CO, Chapter 4, Section 6, paragraph 13.  
169  Commission decision of 29 June 2018 in case M.8889 – Teva / PGT OTC Assets , paragraphs 48 
and 49; Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis 
Vaccines Business (Excl. Influenza) / Novartis Consumer Health Business , par agraph 315; 
Commission decision of 25 October 2010 in case M.5953 – Reckitt Benckiser / SSL , paragraphs 17 
to 19; Commission decision of 11 December 2006 in case M.4314 – Johnson & Johnson / Pfizer 
Consumer Healthcare , paragraph 23; Commission decision of 6 January 2006 in case M.4007 – 
Reckitt Benckiser/Boots Healthcare , paragraphs 12 and 36; Commission decision of 26 April 2004 
in case M.3354 Sanofi -Synthelabo/Aventis , paragraph 99.  
170  See for example Commission decision of 4 August 2016 in case M.7919 - Sanofi / Boehringer 
Ingelheim Consumer Healthcare Business , paragraph 115; Commission decision of 19 November 
2004 in case M.3544 – Bayer Healthcare / Roche (OTC Business) , paragraph 23.  
171  Commission decision of 29 June 2018 in case M.8889 – Teva / PGT OTC Assets , paragraphs 48 
and 49; Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis 
Vaccines Business (Excl. Influenza) / Novartis Consumer Health Business , paragraph 315; 
Commission decision of 25 October 2010 in case M.59 53 – Reckitt Benckiser / SSL , paragraphs 17 
to 19; Commission decision of 11 December 2006 in case M.4314 – Johnson & Johnson / Pfizer 
Consumer Healthcare , paragraph 23.  
172  See for example Commission decision of 29 June 2018 in case M.8889 – Teva / PGT OTC  Assets , 
paragraph 59; Commission decision of 3 August 2018 in case M.5865 – Teva / Ratiopharm , 
paragraph 278.  
173  See for example Commission decision of 29 July 2015 in case – M.7645 Mylan / Perrigo , 
paragraphs 65 and 66.  
 
 
44 (182)  As regards ATC 3 class N2C, the Commission previously assessed the relevant 
markets at ATC 3 level.174 
The Notifying Party’s view  
(183)  The Notifying Party argues that the relevant market should be defined at the 
broad level of SPM treatments, which would include non -narcotic analgesics and 
anti-pyretics (ATC 3 class N2B), antimi graine preparations (N2C), non -steroidal 
anti-rheumatics (M1A), all other musculoskeletal products (M5X), 
antispasmodics (A3D) and gynaecological antispasmodics (G2X1), in particular 
since t hese products typically contain the same ingredients ( paracetamol , 
NSAIDs, and supplemental ingredients like caffeine ) and have essentially the 
same function, that is to say, to manage pain symptoms. The Notifying Party also 
argues that c onsumers also consider general systemic  pain relief products as 
substitutes for targ eted systemic products such as anti -rheumatics.175  
(184)  Furthermore , the Notifying Party does not consider that a further segmentation 
between paediatric and adult products would be appropriate since, while the 
galenic form may differ between the two sets of pro ducts, the underlying active 
ingredient is generally the same.176 
(185)  In any event, the Notifying Party submitted market share data on a more granular 
basis, in line with the Commission’s precedents, and explains that the market 
definition in this case can be le ft open, as the Transaction would not raise serious 
doubts under any plausible market definition.177 
Commission ’s assessment  
Non-narcotic analgesics and anti -pyretics (ATC 3 – N2B / OTC 3 – 02A1+02A2)  
(186)  The results of the market investigation did not provide indications that departing 
from Commission precedents would be appropriate. Therefore, the Commission 
considers that, for the purposes of this Decision, the market for non -narcotic 
analgesics and anti -pyretics ( i.e., the ATC 3 class N2B  or the combination of the 
OTC 3 classes 02A1 and 02A2 ) constitutes a separate market.  
(187)  Furthermore , the market investigation suggested that a segmentation between 
products intended for adults and paediatric may be appropriate. While the 
majority of competitors explained that they do not generally segment their SPM 
products between adult and paediatric pain management, there are differences 
between the two sets of products, in particular as regards their dosage.178 
Furthermore, the majority of pharmacies and retailers responding to the market 
                                                 
174  See Commission decision of 4 Au gust 2016 in case M.7919 – Sanofi / Boehringer Ingelheim 
Consumer Healthcare Business , paragraph 278; Commission decision of 28 January 2015 in case 
M.7379 – Mylan / Abbott EPD -DM, paragraph 422.  
175  Form CO, Chapter 4, Section 6, paragraph 38.  
176  Form CO, Chapter 4, Section 6, paragraph 40.  
177  Form CO, Chapter 4, Section 6, paragraph 41.  
178  Replies to Q3 - Questionnaire to competitors, question 34.  
 
 
45 investigation confirmed that SPM products for use by adults and by children  
differ , and that patients generally use distinct SPM products to treat the same 
general symptoms experienced by adults and by children.179  
(188)  As regards a potential disti nction based on active ingredients (underlying 
molecule), the market investigation provided indications that such a distinction 
would not be appropriate. In particular, the majority of customers and competitors 
replying to the market investigation explaine d that SPM products based on 
different molecules are generally viewed as interchangeable by patients to treat 
the same general pain symptoms.180 In addition, as noted in paragraph  175, Pfizer 
CH largely focuses on ibuprofen -based Advil products and GSK large ly focuses 
on paracetamol -based Panadol products, so this segmentation would in several 
instances result in the  elimination of overlaps between the Parties’ products in the 
systemic pain area.181 
(189)  In any event, since the Transaction does not raise serious dou bts as to its 
compatibility with the internal market under any plausible market definition, the 
Commission can leave open the question of whether the relevant markets should 
be further segmented based on the products’ indented patients (adults or children)  
or on underlying molecule.  
(190)  Finally, as regards the extent to which OTC and Rx products compete with each 
other in the SPM category, given that the Transaction would not give rise to 
affected markets in any other Member States should Rx products be taken into 
account for the purpose of computing market shares, the Commission will 
consider, for the purposes of this Decision, the relevant markets as encompassing 
OTC products only.182 
Anti-migraine preparations (ATC 3 – N2C / OTC 3 – 02C1)  
(191)  The results of the market investigation did not provide indications that departing 
from Commission precedents would be appropriate. Therefore, the Commission 
considers that, for the purposes of this Decision, the market for anti -migraine 
preparations ( i.e., the ATC 3 class N 2C, which corresponds to the OTC 3 class 
02C1 ) constitutes a separate market , without any further distinction being 
relevant . 
(192)  Finally, as regards the extent to which OTC and Rx products compete with each 
other in the SPM category, given that the Transactio n would not give rise to 
affected markets in any Member States should Rx products be taken into account 
                                                 
179  Replies to Q1 - Questionnaire to pharmacies and retailers, question 29.4.  
180  Replies to Q1 - Questionnaire to pharmacies and retailers, question 29.1 and replies to Q3 - 
Questionnaire to competitors, question 35.1.  
181  In the EEA, the Parties would overlap at the molecule level in only Ireland ( acetylsalicylic acid 
and paracetamol ), Romania ( ibuprofen ) and the UK ( paracetamol ) (Form CO, Chapter 4, Section 
6, footnote 28).  
182  In relation to OTC -to-Rx overlaps, the Transaction gives rise to an affected markets in the ATC 3 
class N2B in Hungary (Group 3). The Commission will not discuss further this potential marke t as 
Pfizer CH does not have any Rx products in N2B and the impact of the Transaction for OTC N2B 
products is discussed in Section IV.3.1.3.3 of this Decision.  
 
 
46 for the purpose of computing market shares, the Commission will consider, for 
the purposes of this Decision, the relevant markets as encompassing OTC 
products only.  
3.1.3.2.  Geographic market definition  
(193)  As explained in Section  IV.1.2 , the Commission considers the relevant product 
markets, as defined in Section IV.3.1 .3.1, to be national in scope.  
3.1.3.3.  Competitive assessment   
(194)  The Transaction does not give rise to affected markets under any plausible market 
definition as regards Rx-to-Rx overlaps , and OTC -to-Rx overlaps . 
(195)  In relation to OTC -to-OTC overlaps , the Transaction would give rise to the 
following affected markets:  
 In the  market for ATC 3 (N2B) / OTC 3 (02A1+02A2) products (non -
narcotics and anti -pyretics), the Parties’ activities give rise to two affected 
markets in Hungary and Greece, both of which are Group 3 markets.183 If a 
distinction were made between adult and paedia tric products, within the 
adults segment (OTC  3 class 02A1 - general pain relief for adults), the 
Parties’ activities would give rise to four affected markets: Hungary (Group 
1), Malta (Group 2), Ireland (Group 3, on the basis of volume only),184 and 
Greece (Group 3). There is no overlap in the paediatrics segment (OTC  3 
class 02A2) in the EEA. In light of this, the Commission will assess the 
markets concerned on the narrowest plausible basis (OTC  3 class 02A1 - 
general pain relief for adults), which would gi ve rise to one Group 1 market 
(Hungary) and one Group 2 markets (Malta).185 
                                                 
183  Regarding the Greek market for ATC 3 (N2B) / OTC 3 (02A1 – general pain relief for adults), the 
Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by value, in 2016, 
2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by 
value, in 2016, 2017, and 2018 respectively. Moreover, there will r emain strong competitors post -
Transaction, notably Bristol -Myers SQB, with market shares of [50 -60]%, [50 -60]% and [50 -
60]% by value for the years 2016, 2017 and 2018 respectively; and Reckitt Benckiser, with 
market shares of [10 -20]%, [10 -20]% and [5 -10]%  by value for the years 2016, 2017 and 2018 
respectively. Considering the above, it is unlikely that any competition concerns can arise as a 
result of the Transaction in the markets for ATC 3 (N2B) / OTC 3 (02A1 – general pain relief for 
adults) products ( non-narcotics and anti -pyretics) in Greece.  
184  Regarding the Irish market for ATC 3 (N2B) / OTC 3 (02A1 – general pain relief for adults), the 
Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by volume, in 2016, 
2017, and 2018 respe ctively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by 
volume, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong competitors 
post-Transaction, such as Reckitt Benckiser, with market shares of [30 -40]%, [30 -40]% and [30-
40]% by volume for the years 2016, 2017 and 2018 respectively; and Perrigo, with market shares 
of [20 -30]%, [20 -30]% and [20 -30]% by volume for the years 2016, 2017 and 2018 respectively. 
Considering the above, it is unlikely that any competition conce rns can arise as a result of the 
Transaction in the markets for ATC 3 (N2B) / OTC 3 (02A1 – general pain relief for adults) 
products (non -narcotics and anti -pyretics) in Ireland.  
185  Should the relevant markets be segmented on the basis of the individual or  groups of underlying 
molecules, the Transaction would give rise to affected markets only in Ireland. All the potentially 
affected markets arising from the Transaction on that basis would be Group 3 markets, with one 
 
 
 
47  In the market for ATC 3 (N2C) / OTC 3 (02C1) products (anti-migraine 
preparations), the Parties’ activities give rise to one affected market in 
Germany (Group 3).186  
(196)  In line with the reasoning provided in paragraph 34, Group 3 markets will not be 
further discussed in this Decision.  
Hungary – general pain relief adults (OTC 3 - 02A1)  
(197)  In Hungary, the Transaction gives rise to a Group 1 market for pain management 
treatments at OTC 3 (02A 1) level, that it to say in relation to general pain relief 
products for adults.  
(198)  Table 11 below presents the Parties’ and their competitors’ market shares (in 
value and volume) over the past three years.  
(199)  As regards the Parties’ products, GSK sells Catafl am Dolo  (diclofenac -based), 
Voltaren Dolo  (diclofenac -based) and Panadol ( paracetamol -based), while Pfizer 
CH sells Advil ( ibuprofen -based).  
  
                                                                                                                                                 
exception. In a segment comprising acetylsalicylic acid -based systemic analgesics (within the 
same ATC/OTC class or across combinations of ATC/OTC classes), a hypothetically Group 1 
market would arise. However, the Commission notes the following. First, as discussed in 
paragraph 188, the result s of the market investigation revealed that segmenting the analgesics 
category on the basis of the products’ underlying molecule does not seem appropriate. Second, 
GSK’s product causing the overlap in this hypothetical segment, Excedrin , is in fact a 
combi nation product of acetylsalicylic acid and paracetamol with caffeine, whilst Pfizer CH’s 
product, Anadin , is an acetylsalicylic acid -based product with caffeine; which means that the 
overall product formulations are different. Third, market participants di d not raise concerns in 
relation to the impact of the Transaction in Ireland in relation to any specific SPM product. 
Therefore, in light of these elements, the Commission considers that the Transaction is unlikely to 
raise serious doubts as to its compati bility with the internal market on a potential market for 
acetylsalicylic acid -based analgesics in Ireland, and therefore will not further discuss this market 
in this Decision.  
186  In the market for ATC 3 (N2C) / OTC 3 (02C1) products (anti -migraine prepara tions) in 
Germany, the Parties’ combined market shares reached [30 -40]%, [20 -30]%, and [20 -30]%by 
value, in 2016, 2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, 
and [0 -5]% by value, in 2016, 2017, and 2018 respectively. More over, there will remain strong 
competitors post -Transaction, such as Johnson & Johnson, with market shares of [30 -40]%, [30 -
40]% and [30 -40]% by value for the years 2016, 2017 and 2018 respectively; and Novartis, with 
market shares of [5 -10]%, [10 -20]% and  [10-20]% by value for the years 2016, 2017 and 2018 
respectively. Considering the above, it is unlikely that any competition concerns can arise as a 
result of the Transaction in the markets for ATC 3 (N2C) / OTC 3 (02C1) products (anti -migraine 
preparatio ns) in Germany.  
 

 
 
49 considered as competing more closely with Algoflex  than with each other.189 This 
is consistent with the market share d ata submitted by the Notifying Party and with 
the fact that, while the various SPM products compete with each other, the 
Parties’ products are based on different molecules. While GSK’s products are 
either diclofenac - or paracetamol -based, Pfizer’s product is ibuprofen -based 
(same as Sanofi’s Algoflex ). Although GSK’s and Sanofi’s products are indeed 
based on different molecules, Sanofi’s market position still makes it the strongest 
competitor for GSK.  
(203)  Furthermore, the results of the market investigation rev ealed that brand awareness 
is a particularly relevant feature in the Hungarian SPM market.190 In this respect, 
the Commission notes that other strong brands, including Bayer’s Aspirin 
(acetylsalicylic acid -based) and Reckitt Benckiser’s Nurofen  (ibuprofen -based) – 
which are identified by market participants as must -have brands191 – but also 
local competitors such as Gedeon Richter with Kalmopyrin (acetylsalicylic acid -
based), Menarini with Ketodex (dexketoprofen trometamol -based)  and Bene 
Chemie with Ben-U-Ron (paracetamol -based)  will remain on the market and will 
exert competitive pressure on the Combined CH Business. This is also confirmed 
by GSK’s internal documents which show that, in addition to the strong major 
players present on the market, mid -size playe rs are viewed as [Comment on mid -
size players] .192 
(204)  In addition, the Commission notes that while brand awareness plays an important 
role in Hungary, the products in question are based on off -patent, genericised 
molecules. This makes barriers to entry in this relevant  market relatively lower, 
and suggests that generic suppliers may have the ability and the incentive to enter 
the market or increase their offer in the event of a price increase.   
(205)  Finally , the majority of market participants responding to the marke t investigation 
believe that the Transaction will not have a negative impact on the market for 
systemic pain management treatments in Hungary.193 
(206)  In light of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise  serious doubts as to its compatibility with the 
internal market for systemic pain management treatments in Hungary.  
Malta – general pain relief adults (OTC 3 - 02A1)  
                                                 
189  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 32 and 33; replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, questions 26 and 27 and replies 
to Q3 - Questio nnaire to competitors, questions 39 and 40.  
190  Replies to Q1 - Questionnaire to pharmacies and retailers, question 37.  
191  Replies to Q1 - Questionnaire to pharmacies and retailers, question 40 and replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 28.  
192  Annex SPM 3 to Form CO, internal document of GSK, [Internal document] . 
193  Replies to Q1 - Questionnaire to pharmacies and retailers, question 41; replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equ ivalents, question 30 and replies to Q3 - 
Questionnaire to competitors, questions 44 and 45.  

 
 
51 about an increment in market share of around [0-5]%, which corresponds to de 
minimis  sales of EUR [De minimi s sales] . The results of the market investigation 
confirmed that Pfizer CH plays a very minor role in the market concerned and 
that more significant competitors will remain on the market post -Transaction.197 
In particular, other major pharmaceutical companie s such as Perrigo, Reckitt 
Benckiser and Menarini will keep offering analgesics for adults in Malta, together 
with other regional competitors. Therefore, the Transaction is unlikely to remove 
any significant competitive constraint from the market.  
(212)  Finally,  the results of the market investigation did not reveal any substantiated 
concerns as regards the overall impact of the Transaction in the SPM market in 
Malta.198  
(213)  In light of the elements discussed in this Section, the Commission concludes that 
the Transact ion does not raise serious doubts as to its compatibility with the 
internal market for systemic pain management treatments in Malta.  
3.1.3.4.  Conclusion   
(214)  In view of the elements discussed in this Section and the evidence available to it, 
the Commission concludes that the Transaction does not raise serious doubts as to 
its compatibility with the internal market for systemic pain management 
treatments in any EEA Member State.  
3.2. Cold and flu treatments  
3.2.1.  Product market definition  
(215)  Cold and flu OTC products treat the variety of symptoms generated by 
nasopharyngitis, rhinopharyngitis, or acute coryzacold (commonly referred to as 
“the common cold” or simply “a cold”) and influenza (commonly referred to as 
“the flu”). Symptoms from cold  and flu are multiple and can be treated by a 
number of different OTC products. Individuals suffering from cold or flu 
experience one or more of a number of symptoms including a cough, runny nose, 
nasal congestion, and a sore throat. Cold and flu OTC produ cts include both 
multi -symptoms products and single -symptoms products, which include active 
principles targeting specific symptoms.  
(216)  In terms of ATC classification, most OTC cold and flu treatments are classified in 
the ATC class "R – Respiratory System" a nd, in terms of OTC classification , in 
OTC class 01. Table 13 below summarises the sub -categories of cold and flu 
treatments ATC  3 and OTC 3  classes.  
  
                                                 
197   Replies to Q1 - Questionnaire to pharmacies and retailers, question 31; replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 25 and replies to Q3 - 
Questionnaire to competitors, question 38.  
198  Repli es to Q1 - Questionnaire to pharmacies and retailers, question 41; replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 30 and replies to Q3 - 
Questionnaire to competitors, questions 44 and 45.  
 
 
52 Table 13 – Cold and flu treatments – ATC/OTC Classes  
 
ATC Code   OTC Code  
Nasal Preparations  
R1A  Topical Nasal Preparations  Nasal Decongestants 
(Topical)  01B2A  
01B2D  
01B2L  
01B2O  
Nasal Saline Solutions  01F1  
R1B  Systemic Nasal Preparations  Nasal Decongestants 
(Systemic)  01B2C  
01B2M  
01B2T  
Throat Preparations  
R2A  Throat Preparations  Sore Throat Remedies  1. 01C1  
Chest Rubs and Other Inhalants  
R4A  Chest Rubs and Other 
Inhalants  Decongestion 
Rubs/Inhalants  01B3  
Cough and Cold Preparations  
R5A  Cold Preparations Without 
Anti- Infectives  Cold or Flu Remedies  01B1  
R5C  Expectorants  Expectorants  01A2  
R5D  Antitussives  Cough Relievers  01A1  
R5F Other Cough and Cold 
Preparations    
All Other Non -Therapeutic Products  
V7A  All Other Non -Therapeutic 
Products  Products for other 
Respiratory Conditions  01V1  
Source: Form CO, Chapter 5, Section 6, Table CF 2  
 
(217)  While GSK  is active in most of the ATC 3 / OTC 3 classes identified in Table 13, 
the Parties’ activities overlap in the EEA only in relation to ATC 3 classes R5A 
“Cold Preparations Without Anti - Infectives ” and R5D  “Antitu ssives ” (which 
respectively correspond to the OTC 3 classes 01B1 “ Cold or Flu Remedies ” and 
01A1 “ Cough Relievers ” respectively):  
 The ATC 3 class R5A (which corresponds to the OTC 3 class 01B1 “Cold 
or Flu Remedies”) encompasses multi -symptom cold and f lu products 
which target multiple symptoms simultaneously and typically contain an 
analgesic base (such as paracetamol , ibuprofen  or acetylsalicylic acid ), 
combined with other agents such as nasal decongestants, cough 
suppressants, expectorants and/or antihistamines .199  
 The ATC 3 class R5D (which corresponds to the OTC 3 class 01A1 “Cough 
relievers”) encompasses antitussives (also known as cough suppressants), 
which relieve coughs by blocking the cough reflex, and are most effective 
                                                 
199  Form CO, Chapter 5, Sec tion 6, paragraph 18.  
 
 
53 relieving dry coughs, based on active ingredients such as 
dextromethorphan .200  
(218)  Pfizer  CH is also active in the ATC  3 class R5C “Expectorants ” (which 
corresponds to the OTC 3 class 01A2  “Expectorants ”).201 Expectorant stimulate 
bronchial secretion, reduces the  thickness or viscosity of bronchial secretions, 
thus increasing mucus flow (making it easier to remove mucus through 
coughing), and are thus particularly effective in treating a productive cough.202 
The Parties’ activities do not overlap in this category as  GSK sells expectorants 
only in Italy and Austria (via limited sales), w here Pfizer CH is not active.  
Commission ’s precedents  
(219)  The Commission's starting point in defining the relevant product markets in the 
cold and flu space has traditionally been the ATC 3 classification. However, in 
some instances , the Commission departed from the ATC 3 classification and 
looked in particular at ATC 4 classification or at groups of ATC 3 classes as 
plausible product markets.  
(220)  In previous decisions relating to cold and flu  treatments, the Commission 
analysed markets including both multi -symptom products and single symptom 
products. The Commission thus assessed transactions based on combinations of 
ATC 3 classes, in particular between multi -symptom products (ATC 3 
classifica tion R5A), on the one hand, and chest rubs and other inhalants (R4A), 
systemic nasal preparations (R1B), nasal decongestants (R1A7) and other topical 
nasal decongestants (R1A9), on the other hand, but ultimately left the exact 
market definition open.203 More  recently, the Commission analysed together 
markets for multi -symptom and topical nasal products,204 as well as markets for 
multi -symptom products and throat preparations but ultimately left the exact 
market definition open.205 
(221)  The Commission also looked at whether different single symptom products might 
form part of the same relevant market.206 In particular, the Commission found that 
expectorants (R5C) and antitussives (R5D) are likely part of different product 
markets because of th eir different way of action , and due to the fact that they treat 
                                                 
200  Form CO, Chapter 5, Section 6, paragraph 19.  
201  GSK has very limited sales of expectorants in the EEA, namely in Italy and Austria, which do not 
overlap with Pfizer CH’s.  
202  Form CO, Chapter 5, Section 6, paragraph 27.  
203  Commissio n decision of 6 January 2006 in case M.4007 – Reckitt Benckiser/Boots Healthcare 
International , paragraphs 29 ; Commission decision of 11 December 2006 in case M.4314 – 
Johnson & Johnson/Pfizer Consumer Healthcare , paragraph 18.  
204  Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business , paragraph 233.  
205  Commission decision of 28 January 2015 in case M.7685 – Perrigo / GSK Divestment B usiness , 
paragraphs 29 to 33.  
206  Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline / Novartis Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business , paragraphs 245 to 248.   
 
 
54 different kind of coughs (wet and dry cough respectively),  but ultimately left the 
exact market definition open.207  
(222)  Moreover , the Commission previously considered segmentations at ATC 4 
level ,208 as well as whether different galenic forms of cold and flu products 
formed part of the same market, but ultimately left the exact market definition 
open.209 
(223)  Finally, Commission precedents examined in limited instances molecule -based 
markets in cold and fl u treatments, in particular cough treatments, but ultimately 
left open the relevance of such segmentation.210  
The Notifying Party’s view  
(224)  The Notifying Party submits that GSK and Pfizer CH compete within a broad 
OTC cold and flu market. As a result, the appr opriate product market definition 
should be broader than each ATC 3 class.  
(225)  From a demand side perspective, the Notifying Party claims that a cold or flu 
typically evolves from a sore throat through a blocked or runny nose, fever, and 
other symptoms (with a cough typically being at its worst towards the end of the 
cold), and that the boundaries between the different product types are blurred, in 
particular due to differing customer preferences.  
(226)  The Notifying Party further argues that cold and flu products a re often presented 
and marketed as a single category by pharmacies, on specific “cold and flu” 
shelves (or webpages for online pharmacies) on which a variety of different 
treatments are presented together. The Notifying Party however notes that in 
some cou ntries, including the UK, cough products are usually presented 
separately from other cold and flu products.  
(227)  From a supply side perspective, the Notifying Party claims that it is relatively 
easy for suppliers to switch production between different cold and flu products, as 
the same production lines can be used for different products of the same galenic 
form, including different single -symptom or multi -symptom products.  
  
                                                 
207  Commission decision of 8 May 2000 in cas e M.1846 – Glaxo Wellcome / Smithkline Beecham , 
paragraphs 69 ; Commission decision of 22 May 2000 in case M.1846 – Pfizer / Warner -Lambert , 
paragraphs 40 to 41; Commission decision of 11 December 2006 in case M.4314 – Johnson & 
Johnson/Pfizer Consumer Heal thcare , paragraph 19; Commission decision of 16 March 2004 in 
case M.4367 APW/APSA/Nordic Capital/CAPIO , paragraph 27.  
208  Commission decision of 25 October 2000 in case M.5953 – Reckitt Benckiser/ SSL , paragraphs 
12; Commission decision of 30 September 201 1 in case M.5953 – Procter & Gamble/Teva OTC 
Business , paragraph 9.  
209  Commission decision of 9 September 2012 in case M.6705 – Procter & Gamble/Teva 
Pharmaceutic als OTC II , paragraphs 9 to 10; Commission decision of 4 August 2016 in case 
M.7919 – Sanofi/ Boehringer Ingelheim Consumer healthcare Business , paragraph 17.  
210  Commission decision of 4 August 2016 in case M.7919 – Sanofi/Boehringer Ingelheim Consumer 
healthcare Business , paragraph 12; Commission decision of 25 October 2000 in case M.5953 – 
Recki tt Benckiser/ SSL , paragraph 12.   
 
 
55 Commission ’s assessment  
(228)  Contrary to the Notifying Party’s claim, the market investigation indicates that a 
broad market encompassing all cold and flu products does not constitute a 
plausible product market.  
(229)  A majority of respondents to the market investigation consider that pati ents view 
multiple symptom products as interchangeable with single -symptoms products.211 
The same applies in particular with regards to multi -symptom products (which 
include a cough treatment), on the one hand, and single -symptom cough 
treatments, on the oth er hand, which are considered substitutable for a majority of 
respondents.212 Conversely, the results of the market investigation confirm ed that 
single product symptoms are typically not considered as interchangeable between 
each other.213 In particular, with regards to cough treatments specifically, a 
majority of respondents consider that patients do not use indistinctively 
antitussives and expectorants when experiencing cough symptoms.214 A similar 
logic applies when looking at ATC 4 level.215 
(230)  In line with preced ents relating to other OTC categories (and in particular 
systemic pain management as explained in Section IV.3.1.3 ), the results of the 
market investigation reveal ed that products aimed at children are likely part of a 
different product market than those d esigned for adults. An overwhelming 
majority of pharmacies view paediatric and adult products as different (including 
in terms of e.g. labels, formats, or preparations) and a majority of competitors 
segment their cold and flu products in line with this dis tinction, in particular due 
to different dosages and specific regulatory or commercial considerations 
applying to paediatric products.216 
(231)  In line with precedents, the market investigation indicate d that products based on 
different galenic forms (for instance  tablets or liquids) can be considered as 
interchangeable, in spite of patients potentially having some preferences for 
specific formats.217 Similarly, the market investigation did not reveal that a split 
                                                 
211  Replies to Q1 - Questionnaire to pharmacies and retailers, question 42.1. Replies to Q3 - 
Questionnaire to competitors, question 51.  
212  Replies to Q3 - Questionnaire to competitors, question 54.  
213  Replies to Q1 - Quest ionnaire to pharmacies and retailers, question 42.2. Replies to Q3 - 
Questionnaire to competitors, question 52.  
214  Replies to Q1 - Questionnaire to pharmacies and retailers, question 42.2.2. Replies to Q3 - 
Questionnaire to competitors, question 53.  
215  Among the relevant products, only the antitussives category (R5D) is further subdivided into two 
ATC 4 classes; R5D1 (plain antitussives) and R5D2 (antitussives in combinations). Antitussives 
in combinations include both an antitussive active ingredient as  well as other treatments including 
expectorants, antihistamines, ephedrine, and/or herbal tinctures.  
216    Replies to Q1 - Questionnaire to pharmacies and retailers, question 42.4. Replies to Q3 - 
Questionnaire to competitors, question 50.  
217  Replies to Q1  - Questionnaire to pharmacies and retailers, question 42.1. Replies to Q3 - 
Questionnaire to competitors, question 55.  
 
 
56 based on the active ingredient in the relevant cold a nd flu treatment would be 
relevant.218 
(232)  In view of the above, the Commission concludes that for the purposes of the 
present case, the most plausible product markets in the cold and flu space consist 
of ATC 3 / OTC 3 classes or combinations thereof, which can be further 
segmented based on ATC 4 / OTC 4 class (where relevant), as well as the 
products’ intended user (adult vs paediatric).219 Hence the competitive assessment 
will focus on the effects of the Transaction on these segments.  
3.2.2.  Geographic market definitio n 
(233)  As explained in Section IV.1.2 , the Commission has historically considered the 
relevant product markets, as defined in Section IV.3.2.1 , to be national in scope.  
3.2.3.  Competitive assessment  
(234)  The Transaction gives rise to affected markets at ATC 3 / OTC 3 level or 
combination thereof in a number of EEA countries, which will be assessed 
successively below.  
(235)  These affected markets relate mainly to OTC -to-OTC overlaps  (in Czechia, 
France, Ireland,  Malta, Romania, Slovakia, and the U nited Kingdom ), as well as 
Rx-to-Rx overlaps  (in Romania) and OTC -to-Rx overlaps  (in Hungary and 
Romania).220  
(236)  Of these, Group 1 and Group 2 markets arise in Czechia, Hungary, Malta, 
Romania, Slovakia , and the U nited Kingdom .221 
                                                 
218  Minutes of a call with a competitors dated 27 February 2019.  
219  It is however not necessary to assess paediatric only markets, as the Parties do not overlap for the 
relevant products in any Member States.  
220  Markets which are technically affected on an OTC -to-Rx basis where the Parties do not offer any 
Rx product will  not be assessed separately in the present decision, as assessing those on an OTC -
to-OTC (where the Parties’ activities overlap) basis is more relevant.  
221  As mentioned in paragraph 34, Group 3 markets are not individually discussed in detail in this 
Deci sion. Of these affected markets referred to in paragraph 236 of this Decision, Group 3 
markets arise for Multi -Symptom Cold & Flu Products and Topical Nasal Preparations 
(R5A+R1A7+R1A9) in France, Ireland, and Hungary . Regarding the French market, the Part ies’ 
combined market shares reached [30 -40]%, [20 -30]%, and [20 -30]% by value, in 2016, 2017, and 
2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by value, in 
2016, 2017, and 2018 respectively. Moreover, there will remain st rong competitors post -
Transaction, such as Sanofi, with market shares of [10 -20]%, [20 -30]% and [20 -30]% by value for 
the years 2016, 2017 and 2018 respectively; and Groupe Batteur, with market shares of [10 -20]%, 
[10-20]% and [10 -20]% by value for the yea rs 2016, 2017 and 2018 respectively. Regarding the 
Irish market, the Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by 
value, in 2016, 2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, 
and [0 -5]% by va lue, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong 
competitors post -Transaction, such as Johnson & Johnson, with market shares of [20 -30]%, [30 -
40]% and [30 -40]% by value for the years 2016, 2017 and 2018 respectively; and Reckit t 
Benckiser, with market shares of [10 -20]%, [10 -20]% and [10 -20]% by value for the years 2016, 
2017 and 2018 respectively. Regarding the Hungarian market, the Parties’ combined market 
shares reached [20 -30]%, [20 -30]%, and [30 -40]% by value, in 2016, 2017 , and 2018 respectively. 
 

 
 
58 share would drop to around [50-60]% (in terms of value) . Furthermore, strong 
competitors such that Angelini ( [20-30]%  of market shares by value in 2018) and 
Teva ( [10-20]% of market shares by value in 2018) exert a significant 
competitive constraint over the Parties.  
(240)  The market investigation indicates that the Parties’ products are not each other’s 
closest competitor . In particular, Teva’s Stoptussin  is consistently mentioned as a 
top alternative to both Robitussin  and Sinecod , while Stoptussin  does not belong 
to the same ATC 4 category (as it belongs instead to ATC 4 class R5D2).224 Such 
feedback mitigates the relevance o f an assessment limited to the ATC  4 category. 
Other products competing with  the Parties’ products, as  identified by respondents , 
include Angelini’s Levopront  and Dr. Max’s Tussical , Teva’s Ditustat , 
Walmark’s Stopex , Novartis’  ACC , and Sanofi’s  Mucosolvan , many of which also 
do not qualify as plain antitussives (and some of which qualify as expectorants), 
and thus do not belong to the same ATC 4 category either.225  
(241)  Internal documents of the Parties also seem to mitigate the relevance of an 
assessment limite d to the ATC 4 category as they track competing products in 
both plain antitussives and combined antitussives jointly.226 
(242)  The market investigation further indicates that multi -symptom products may 
exercise a constraint on antitussives in Czechia. In particul ar, the results of the 
market investigation reveal ed that certain suppliers present their multi -symptom 
products as substitute for cough treatments, including Sanofi’s market leading 
Paralen Grip .227  
(243)  Furthermore, GSK or Pfizer’s products do not seem to be c onsidered as must -
haves by pharmacies in Czechia.228 In addition, all of the responding Czech 
wholesalers consider that pharmacies would switch their orders towards 
alternative products offered by other pharmaceutical companies should the 
Combined CH Busines s apply a price increase to cough treatments post 
Transaction.229  
(244)  A number of competitors also highlighted the importance of pharmac y chains in 
Czechia, which translate into a stronger negotiating power, as well as of own 
label products including in the cold and flu space.230 Dr. Max, the leading 
pharmacy chain in Czechia, had no presence in antitussives before 2017 and 
already captured [5-10]% of the market in 2018  with own label products . 
                                                 
224  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, questions 32.1.1 
and 33.1.1. Only one respondent lists Robitussin as the closest alternative to Sinecod.  
225  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, questions 32.1.1 
and 33.1.1. Replies to Q3 - Questionnaire to competitors, question 63.  
226  See the document [Internal document] .  
227  Replies to Q3 - Questionnaire to competitors, question 54.1.  
228  Replies to Q1 - Question naire to pharmacies and retailers, question 51 and 52.  
229  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question 35.2.  
230  Replies to Q3 - Questionnaire to competitors, question 64.1.  
 
 
59 (245)  Finally , respondents to the ma rket investigation did not raise specific or 
substantiated concerns in relation to the cold and flu segment in Czechia.  
(246)  In view of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to it s compatibility with the 
internal market for cold and flu treatments in Czechia.  
Hungary  
(247)  In Hungary , at ATC  3 class level (or combinations thereof), the Transaction gives 
rise to Group 1 affected markets in relation to (i) OTC multi -symptom cold and 
flu p roducts (ATC 3 - R5A  / OTC 3 01B1 ); (ii) OTC and Rx antitussives ( ATC 3  
R5D); (iii) OTC and Rx multi -symptom cold and flu treatments and antitussives 
(combination of ATC 3 classes  R5A + R5D); and (iv) OTC multi -symptom cold 
and flu treatments and topical n asal preparations ( combination of ATC 3 classes 
R5A + R1A7 + R1A9  / OTC 3 classes  01B1 + 01B2A + 01B2D + 01B2L + 
01B2O + 01F1 ).231  
 OTC -to-OTC:  Multi -symptom cold and flu products (R5A/01B1)  
(248)  In Hungary, the Transaction gives rise to a Group 1 market for cold and flu 
treatments at ATC 3 / OTC 3 level, in relation to multi -symptom cold and flu 
products. GSK offers its NeoCitran  line of products, whereas Pfizer  CH markets 
Advil -branded products.  
                                                 
231  In Hungary, Group 3 markets arise (i ) for Multi -Symptom Cold & Flu Products and Throat 
Preparations (R5A+R2A), (ii) for  Multi -Symptom Cold & Flu/Expectorants (R5A/R5C), and (iii0 
for Combined Multi -symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives (R5D). 
Regarding the Multi -Symptom Cold & Flu Products and Throat Preparations (R5A+R2A) market, 
the Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by value, in 
2016, 2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -
5]% by value, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong 
competitors post -Transaction, such as Reckitt Benckiser, with market shares of [10 -20]%, [10 -
20]% and [10 -20]% by value for the years 2016, 2017 and 2018 respectively; and Ange lini, with 
market shares of [10 -20]%, [10 -20]% and [10 -20]% by value for the years 2016, 2017 and 2018 
respectively. Regarding the Multi -Symptom Cold & Flu/Expectorants (R5A/R5C) market, the 
Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [ 20-30]% by value, in 2016, 
2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by 
value, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong competitors post -
Transaction, such as Novartis, with mar ket shares of [10 -20]%, [10 -20]% and [10 -20]% by value 
for the years 2016, 2017 and 2018 respectively; and Bayer, with market shares of [10 -20]%, [10 -
20]% and [5 -10]% by value for the years 2016, 2017 and 2018 respectively. Regarding the 
Combined Multi -symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives (R5D) 
market, the Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by 
value, in 2016, 2017, and 2018 respectively. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, 
and [0 -5]% by value, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong 
competitors post -Transaction, such as Novartis, with market shares of [10 -20]%, [10 -20]% and 
[10-20]% by value for the years 2016, 2017 and 2018 respectively; and Bayer , with market shares 
of [5 -10]%, [5 -10]% and [5 -10]% by value for the years 2016, 2017 and 2018 respectively. 
Considering the above, it is unlikely that any competition concerns can arise as a result of the 
Transaction in the markets for Multi -Symptom Cold  & Flu Products and Throat Preparations 
(R5A+R2A), for  Multi -Symptom Cold & Flu/Expectorants (R5A/R5C), and for Combined Multi -
symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives (R5D) in Hungary.  

 
 
61 respondents to the market investigation include primarily Perrigo and Bayer, in 
line with their respective market share.233  
(253)  The market investigation also validates the Notifying Party’s claim that the 
Parties’  products are not close competitors to each other. None of the respondents 
to the marker investigation consider s Advil Cold & Flu  as a suitable alternative to 
NeoCitran . The main alternatives cited include instead Perrigo’s Coldrex , Reckitt 
Benckiser ’s Nurofen Cold and Flu,  Sanofi’s Rubophen , Procter & Gamble ’s Wick 
Powder , Bayer’s Aspirin , Boiron’s Oscillococcinum  and Richter Gedeon’s 
Kalmopyrin .234 Around half of the respondents consider NeoCitran  as a suitable 
alternative to Advil Cold & Flu , which is understandable in light of its leading 
market presence. However, NeoCitran  is only one of many alternatives listed 
among others, including Perrigo’s Coldrex , Bayer’s Aspirin , Reckitt Benckiser ’s 
Nurofen Cold and Flu  and Sanofi’s Rhinatiol .235 
(254)  The market investigation also indicates that consumers may have stronger 
preferences towards specific formats in Hungary, in particular for hot drinks, 
which are perceived as a trend even if, ultimately, the different formats are 
viewed as interchangeable.236 While over [90-100]%  of GSK’s sales of 
NeoCitran  in Hungary are of liquid pow der formats (and as such qualifies as “hot 
drinks”), Pfizer CH only offers Advil  in tablets and capsules, which further 
indicates that the Parties’ products are not particularly clo se competitors.  
(255)  Internal documents also confirm that the Parties are not particularly close 
competitors in the multi -symptom cold and flu market in Hungary. GSK does not 
consider Pfizer’s Advil  as a key competitor, but instead monitors more closely 
other p roducts listed above, in particular Perrigo’s Coldrex , and  Bayer’s 
Aspirin .237  
(256)  The fact that Advil only represents a minor competitive presence on the 
Hungarian market is further evidenced by the fact that Hungarian 
pharmacies/retailers do not seem to consi der Pfizer’s products to be must -
haves.238 In addition, while an important share of competitors and customers 
contacted during the investigation emphasized the importance of brands in 
Hungary,239 Advil  does not benefit from a strong brand image in the cold and flu 
space, as it is more closely associated with SPM . 
                                                 
233  Replies to Q3 - Questionnaire to competitors, question 59.2.  
234  Replies to Q1 - Questionnaire to pharmacies and retailers, question 44.2. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 33.1.1. Replies to  Q3 - 
Questionnaire to competitors, question 60.  
235  Replies to Q1 - Questionnaire to pharmacies and retailers, question 44.1. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 32.1.1. Replies to Q3 - 
Questionnaire to competitors, question 61.  
236  Replies to Q3 - Questionnaire to competitors, question 55.1.  
237  See the document [Internal document] .  
238  Replies to Q1 - Questionnaire to pharmacies and retailers, question 52.  
239 Minutes of a call with a wholesaler dated 03 Ma y 2019.  

 
 
63 Commission ’s assessment  
(261)  The market investigation indicates that the Parties’ products are not particularly 
close competitors and there are many viable alternatives in the antitussive 
segment. Sinecod  is sold Rx, while Robitussin  is sold OTC. None of the 
responding customers to th e market investigation, and only one competitor, list 
GSK’s Sinecod  as a top alternative to Pfizer’s Robitussin . Competing products 
cited include instead Novartis’ ACC , Sanofi’s Rhinathiol  Tusso , Boiron’s Stodal , 
Dr Theiss’ Plantago  and Aramis Pharma’s Fluimucil .241 Similarly, no respondent 
considers Robitussin  as the best alternative to Sinecod  and only a very small 
minority of respondents consider it as the second or third best alternative. 
Respondents typically instead list Novartis’ ACC , Teva’s Ambroxol , Bausch’s 
Mucopront , Dr Theiss’ Plantago , Klosterfrau’s Icelandic Moss , Microse’s 
Orvosi , or Sanofi’s Rhinatiol  and Libexin as top alternatives.242 The Commission 
notes that many of the alternatives identified by market participants do not appear 
in the marke t share estimates provided by the Notifying Party.  
(262)  The Parties' products also differ in terms of their composition and galenic form. 
GSK’s Sinecod contains the active ingredient butamirate , whereas Pfizer CH’s 
Robitussin  contains dextromethorphan . Robitus sin is only available as a syrup, 
whereas Sinecod  is available as a tablet, syrups or drops, of which syrups 
accounts for the lowest share of sales in Hungary (around [10-20]%). 
(263)  Furthermore, r espondents to the market investigation did not raise specific or  
substantiated concerns in relation to antitussives in Hungary .  
 OTC -to-OTC / OTC -to-Rx: Multi -symptom cold and flu products (R5A) 
and antitussives (R5D)  
(264)  Tables 17 and 18 below presents the Parties’ and their competitors’ market shares 
(in value and volume ) over the past three years) on the relevant OTC and OTC + 
Rx segments , combining both multi -symptom cold and flu products and 
antitussives . 
  
                                                 
241   Replies to Q1 - Questionnaire to pharmacies and retailers, question 45.1. Replies to Q3 – 
Questionnaire to competitors, question 63.  
242  Replies to Q3 - Questionnaire to competitors, question 62.  

 
 
65 market post -Transaction; and (ii) the Parties do not compete closely since their 
products ar e either based on different formats and molecules or belong to 
different product categories.243 
Commission ’s assessment  
(266)  In OTC multi -symptom cold and flu products, GSK offers its NeoCitran  line of 
products, whereas Pfizer CH markets Advil -branded products. G SK does not offer 
OTC antitussives in Hungary but its Sinecod  antitussives are sold under 
prescription. Pfizer CH generally offers its Robitussin  antitussives OTC .244  
(267)  The Commission notes that the increment brought about by Pfizer CH is 
relatively limited, reaching around [5-10]% in value.  
(268)  The competitive analysis, either of the OTC -to-Rx or the OTC -to-OTC overlap 
does not materially differ compared to that of (OTC) multi -symptom cold and flu 
products and (Rx) antitussives , as laid out  in paragraphs 251 to 258 above .  
(269)  GSK’s multi -symptom products are not considered by respondents to the market 
investigation as an alternative to Pfizer’s Robitussin  antitussives . Indeed, none of 
the respondents list NeoCitran  as a top alternative to Robit ussin . Competing 
products cited include instead Novartis’ ACC , Sanofi’s Rhinathiol  Tusso , and 
Aramis Pharma’s Fluimucil .245 Furthermore , the  results of the  market 
investigation revealed that, in Hungary, the competitive interaction between 
single symptom products, including antitussives, and multi -symptom products is 
limited. C ustomers are typically  more likely to choose single -symptom products 
to treat symptoms such as cough and would rather use multi -symptom products in 
case of more complex illness.246 
(270)  As mentioned in paragraphs  253 and 255  with regard to multi -symptom cold and 
flu products specifically, Advil Cold & Flu  is also not considered by most market 
players as a close competitor of GSK’s NeoCitran . Similarly, as mentioned in 
paragraph 261, GSK's Rx  antitussive Sinecod  is not considered by most market 
players as a close competitor of Pfizer’s OTC Robitussin.  
(271)  In addition, responding pharmacies/retailers indicate that patients who buy 
simultaneously cold and flu products tend to buy NeoCitran  (but not Pfizer’s 
Advil ) alongside either Coldrex  or Rhinathiol , but not together with  Pfizer’s 
Robitussin (or GSK’s Sinecod ).247  
 
 
                                                 
243  Form CO, Chapter 5, Section 7, paragraphs 92 to 97.  
244   To the exception of Romania, as described in paragraph 293 of this Decision.  
245  Replies to Q1 - Questionna ire to pharmacies and retailers, question 45.1.  
246  Replies to Q3 - Questionnaire to competitors, question 54.1.  
247  Replies to Q1 - Questionnaire to pharmacies and retailers, question 47.  

 
 
67 structure of the relevant market is thus limited. The Commission also notes that 
the estimates prov ided in Table 19 come from IQVIA’s MIDAS database, when 
looking at both Rx and OTC products. Based on the OTC -IMS database, which 
focuses on OTC products (where both Parties are active and which should thus be 
more accurate  as the Parties’ products are not  sold Rx ) the market would qualify 
as a Group 3, where the Parties’ share would reach [30-40]% with an increment 
of [0-5]%. 
(276)  Furthermore, Pfizer CH is not active in the manufacturing and supply of topical 
nasal preparations. For responding pharmacies/retail ers, patients who buy 
simultaneously cold and flu products tend to buy GSK’s NeoCitran  alongside 
non-Pfizer products including Perrigo’s Coldrex or Sanofi’s Rhinathiol , but 
would not typically purchase Pfizer's Advil  with GSK's Otrivin .249 In fact, no 
customer cited Pfizer CH products as a top alternative to GSK’s Otrivin , listing 
instead  Sanofi’s Rhinospray , Merck’s Nasivin , Gedeon Richter’s Xilomare  or 
Polfa Novorin  as top alternatives.250 
(277)  As mentioned in paragraphs 253 and 255 Advil Cold &  Flu is also not a close 
competitor of GSK’s NeoCitran  in multi -symptom products, where a number of 
strong competitors, including some that also offer topical nasal preparations are 
involved (including Sanofi, Procter & Gamble  and Bayer). Looking at adult only 
markets does not materially impact the assessment, as the Parties’ market share 
would decrease, based on available estimates. 251   
Conclusion  
(278)  In view  of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for cold and flu treatments in Hungary.  
Malta  
(279)  In Malta, at ATC 3 class level,252 the Tran saction gives rise to one Group 1 
affected markets in relation to multi -symptom cold and flu products (R5A)253. 
                                                 
249  Replies to Q1 - Questionnaire to pharmacies and retailers, question 47.  
250  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question, 
question 33.1.1.  
251  The Parties’ activities do not overlap for paediatric products concerning multi -symptom cold and 
flu products and topical nasal preparations products (OTC 3 – 01B1) in Hungary.  
252  The Parties are unable to provide market share data on combinations of ATC 3 classes. Pfizer also 
sells its Robitussin  antitussives and expectorants i n Malta (ATC 3 classes R5C and R5D 
respectively). The Parties believe that the share of Robitussin  in expectorants or antitussives 
would be around [10 -20]%. As a result, in light of the lack of overlap in antitussives and 
expectorants, the competitive asse ssment for any potential market including multi -symptom cold 
and flu products  and expectorants and/or antitussives would likely largely follow the same logic as 
the assessment relating to multi -symptom cold and flu products  only. In particular, no GSK 
product is listed as a top alternative to Pfizer’s antitussives or expectorants. See Replies to Q1 - 
Questionnaire to pharmacies and retailers, questions 45.1 and 46.1. For these reasons, 
combinations of ATC 3 markets for Malta will not be further discussed in  this Decision.  

 
 
69 Commission ’s assessment  
(284)  The market investigation appears to validate the Notifying Party’s argument that 
the market shar e estimates provided to the Commission  may overestimate the 
Parties’ share .256 Competing players in the market also have limited visibility on 
the competitive landscape. No competitor was able to provide a list of the top 
players in the markets for cold and flu treatments in Malta.257 Most competitors 
whose products are offered in Malta are only present locally via independent 
distributors, like GSK and Pfizer  CH. 
(285)  The Commission considers that the  Notifying Party’s argument regarding the 
withdrawal of GSK produ cts from the market is not relevant as it does not 
materially impact the competitive assessment. Nurse  and Beechams  only account 
for a minor share of GSK’s sales in Malta. Its main brands are instead Panadol , 
and to a lesser extent Actifed . Combined, sales of Nurse  and Beechams  in 2018 
represent about a third of the sales of Panadol . Furthermore, in Malta, Nurse  and 
Beechams  are not typically considered as must -have products. Conversely, the 
Parties’ other products (more specifically GSK’s Panadol  and, to a lesser extent, 
Pfizer’s Advil ) are considered as must -have brands for multi -symptom treatments. 
However, the market investigation firmly indicates that other products are also 
considered must -haves in Malta, including in particular Reckit t Benckiser ’s 
Nurofen , consistently cited by responding pharmacies/retailers, as well 
Medochemie’s SNIP  to a lesser extent.  
(286)  The Parties’ products also do not appear to be each other’s closest competitor ; 
Reckitt Benckiser ’s Nurofen  is consistently listed by pharmacies/retailers as the 
most suitable alternatives to Advil Cold & Flu , followed by Sanofi’s Rhinathiol  in 
most instances, while only one respondent cited Panadol  as a second -best 
alternative to Advil .258 Similarly, pharmacies/retailers cite Reckitt B enckiser ’s 
Nurofen , Sanofi’s Rhinathiol , Medochemie’s SNIP, as well as McNeil’s Benylin,  
as top alternatives to Panadol. Reckitt Benckiser ’s Lemsip , Medochemie’s SNIP  
and Alliance Pharma’s Uniflu  are listed as the closer alternatives to Beechams , 
while SNIP and Uniflu  are also listed as top alternatives to GSK’s Nurse . Only 
one respondent cited Advil  as a second -best alternative to Panadol .259 The 
Commission notes that Sanofi’s Rhinathiol  is not listed among the products 
competing in the category in the estimates provided by the Parties, which further 
indicates that the estimates provided above may overestimate the Parties’ 
presence on the market in Malta.  
                                                                                                                                                 
between 2014 and 2018. The methodology leads to important discrepancies. For instance, while 
actual sales data indicates that Pf izer’s Advil Cold  generated [40-50]% less sales than GSK’s 
Nurses , the estimates attribute a [90-100]% % higher share to Advil Cold  than Nurses . 
256   The market shares of the Parties are likely overestimated as a number of products that are not 
originating from the competitors listed in the market data (e.g. Sanofi) were mentioned as 
competing products over the course of the market investigation.  
257  Replies to Q3 - Questionnaire to competitors, questions 59 to 63.  
258  Replies to Q1 - Questionnaire to pharmaci es and retailers, question 44.1.  
259  Replies to Q1 - Questionnaire to pharmacies and retailers, question 44.2.  
 
 
70 (287)  In addition, other players, inclu ding Stada and Procter & Gamble  hold marketing 
authorisations for OTC multi -symptom cold and flu products in Malta, namely for 
their Covonia  and Vicks  products. These players, while not listed in the market 
share estimates provided by the Notifying Party p otentially generate d sales  in 
Malta , or at least represent potential competitors to the Parties.  
(288)  Furthermore, wholesalers appear to be the gatekeepers to pharmacies in Malta as 
pharmacies do not deal directly with suppliers. According to the market 
invest igation, wholesalers have a clear influence on the OTC products and brands 
procured by the pharmacies they supply.260 This specific situation can likely be 
explained by the fact that , unlike in other Member States,  pharmaceutical 
companies have no local pres ence in Malta, as confirmed by all responding 
wholesalers. One states for instance that “ [i]n a minutely small country like 
Malta, it is in no way possible for pharmaceutical companies to actually sell 
products themselves in a viable fashion . This would b e the equivalent of them 
having a fully fledged setup for a medium size town in the mainland EU. In order 
to keep pricing to patients and consumers down this is carried out through 
distributors ”. Another wholesaler states  that “ [p]harmaceutical companies d o not 
sell directly to pharmacies in Malta ”.261 The market investigation also indicates 
that while pharmaceutical companies may grant exclusivity towards wholesalers 
for the distribution of their products, these are typically one -sided, as wholesalers 
genera lly offer products from multiple suppliers and brands, and may even 
distribute consumer goods and other products in addition to pharmaceuticals,262 
making them critical for players such as GSK, which also have a large consumer 
health ( including  oral health) business.  
(289)  One responding Maltese wholesaler expressed concerns about the position of the 
Parties post -Transaction, which would allegedly give them a more important 
influence on pricing, and its impact on potential entry. However, that claim is not 
substan tiated and is contradicted by another responding wholesaler which state s 
that “ there are so many products on the market in Malta that higher pricing could 
drive consumers to purchase a different product and therefore sales would 
ultimately decrease ”,263 as w ell as the overwhelming majority of 
pharmacies/retailers, which expect that the Transaction will have no impact or a 
positive impact on prices and product choice.264 The claim is also contradicted by 
the results of the market investigation which indicate that parallel imports of 
multiple suppliers’ products are widespread, implying that the competitive 
landscape in Malta depends on other factors than suppliers’ direct  sales in the 
country. One wholesaler explains for instance that “ there are parallel traded 
products available of all products that sell decently here and from different 
sources. In some case parallel traders will put products on the market that we do 
not even have ”.265 As a result, there are many channels through which products 
                                                 
260  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question 11.  
261   Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question 5.  
262   Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question 4.1.  
263   Replies to Q2 - Questionnaire to wholesalers and buying group s, or equivalents, question 24.1.1.  
264   Replies to Q1 - Questionnaire to pharmacies and retailers, questions 54.1 to 54.3.  
265  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, question 24.1.1.  
 
 
71 are ultimately offered to final consumers, in addition to approved local 
distributors, and the Transaction is unlikely to have any direct impact on these 
channels.  
(290)  The competitive dynamics would not change materially when assessing markets 
based on adult -only products. Medochemie’s SNIP  and GSK’s Actifed  are both at 
least partially paediatric products, and removing those would lead to a more 
limited increment in the Parties’ share based on the above estimates. 266   
(291)  In view of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for cold and flu treatments in Malta.  
Romania  
(292)  In Romania, at ATC  3 class level (or combinations thereof), the Transaction gives 
rise to Group 1 affected markets in relation to (i) Rx antitussives (R5D);267 (ii) Rx 
and OTC multi -symptom cold and flu products and antitussives (R5A + R5D);  
(iii) Rx and OTC multi -symptom cold and flu products, antitussives, and 
expectorants (R5A + R5C + R5D); and (iv) one Group 2 affected market in 
relation to OTC multi -symptom products and expectorants (R5A + R5C).268  
                                                 
266  The Parties’ activities do not  overlap for paediatrics products regarding multi -symptom cold and 
flu products (ATC 3 – R5A) in Malta.  
267  Other Group 1 affected markets technically arise when looking at Rx -to-Rx overlaps, as a result of 
the Parties’ presence in antitussives (for instanc e with regards to (i) antitussives and expectorants, 
as well as (ii) multi -symptom products, antitussives and expectorants). However, as there are no 
Rx multi -symptom cold and flu products sold in Romania, and as the Parties do not offer any Rx 
expectorant s, the assessment of such markets would not bring any additional element compared to 
the Rx -to-Rx assessment at ATC 3 level or OTC -to-Rx overlaps.  
268  In Romania, Group 3 markets arise (i) for Rx Antitussives/Expectorants (R5D+R5C), (ii) for OTC 
Combined M ulti-symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives (R5D), and 
(iii) for Rx Combined Multi -symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives 
(R5D). Regarding the Rx Antitussives/Expectorants (R5D+R5C) market, the Parties’ com bined 
market shares reached [20 -30]%, [20 -30]%, and [30 -40]% by value, in 2016, 2017, and 2018 
respectively. Pfizer CH’s increment amounted to [10 -20]%, [10 -20]%, and [10 -20]% by value, in 
2016, 2017, and 2018 respectively. There will remain strong competi tors post -Transaction, such 
as Zambon Group, with market shares of [10 -20]%, [20 -30]% and [20 -30]% by value for the years 
2016, 2017 and 2018 respectively; and Angelini, with market shares of [10 -20]%, [20 -30]% and 
[20-30]% by value for the years 2016, 201 7 and 2018 respectively. Regarding the OTC Combined 
Multi -symptom Cold and Flu (R5A), Expectorants (R5C) and Antitussives (R5D) market, the 
Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by value, in 2016, 
2017, and 2018 respectiv ely. Pfizer CH’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by 
value, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong competitors post -
Transaction, such as Reckitt Benckiser, with market shares of [10 -20]%, [10 -20]% and [10 -20]% 
by value for the years 2016, 2017 and 2018 respectively; and Perrigo, with market shares of [5 -
10]%, [5 -10]% and [5 -10]% by value for the years 2016, 2017 and 2018 respectively. Regarding 
the Rx Combined Multi -symptom Cold and Flu (R5A), Expectorants ( R5C) and Antitussives 
(R5D) market, the Parties’ combined market shares reached [20 -30]%, [20 -30]%, and [30 -40]% 
by value, in 2016, 2017, and 2018 respectively. Pfizer CH’s increment amounted to [10 -20]%, 
[10-20]%, and [10 -20]% by value, in 2016, 2017, and  2018 respectively. Moreover, there will 
remain strong competitors post -Transaction, such as Zambon Group, with market shares of [10 -
20]%, [20 -30]% and [20 -30]% by value for the years 2016, 2017 and 2018 respectively; and 
Angelini, with market shares of [1 0-20]%, [20 -30]% and [20 -30]% by value for the years 2016, 
 


 
 
74 antitussives (in addition to Rx products), which altogether contribute to blur the 
distinction between OTC and Rx products.271  
(299)  With regards to R x products specifically, respondents to the market investigation 
also largely confirm the Notifying Party’s argument in relation to the impact of 
the regulatory process on Rx prices in Romania. The results of the market 
investigation confirm ed it is very d ifficult for an Rx supplier to change supply 
conditions of its products (in particular by raising prices),272 and express no 
concern that the Combined CH Business would be able to do so post 
Transaction.273 
(300)  In addition, the market investigation indicated that a significant number of players 
would remain on the antitussive markets post Transaction. Competitors to the 
Parties’ antitussives include Boiron’s Stodal , Ascendis’ Tusend , Engelhard’s 
Prospan , KRKA’s Herbion Iedera , Ipsen’s Paxeladine , and Himalaya’s Koflet . 
These include natural or homeopathic remedies that are not listed in the market 
share estimates provided by the parties.  
(301)  Furthermore, regardless of market definition, the Parties’ products do not a ppear 
as particularly close competitors. Firstly, respondents mention that even in the Rx 
space, the products are not each other’s closest competitor , in particular because 
they are not in the same format. For instance, Tussin Forte  is available  in tablet 
format, while Robitussin  is offered as a syrup.274 Secondly, most respondents do 
not mention GSK as a top alternative to Pfizer’s cough products (or conversely) 
in Romania overall. No respondent mentioned Tussin Forte  as a top competitor to 
Robitussin . Only one customer and a very small minority of competitors lists 
GSK’s Sinecod  (OTC) as a second or third alternative to Pfizer’s Robitussin (Rx). 
Respondents instead consider Boiron’s Stodal , Ascendis’ Tusend , Engelhard’s 
Prospan , KRKA’s Herbion Iedera , Ipsen’ s Paxeladine , Biofarm’s Rofedex275 or 
Novartis’ ACC  as top alternatives to Pfizer’s Robitussin.276 Similarly, no 
customer and only a very small minority of competitors  mentioned Robitussin  as 
a second or third alternative to GSK’s antitussives . The main alternatives to GSK 
products include also Boiron’s Stodal , Novartis’ ACC , Engelhard’s Prospan  
                                                 
271  Replies to Q3 - Questionnaire to competitors, question 65. Follow -up replies of Romanian 
respondents to Q1 and Q2.  
272  The results of the market investigation confirmed that it is only in limited circumstances that the 
Romanian public authority would allow prices of Rx products to increase, in particular to adjust to 
exchange rate fluctuations or increased prices in a pane l of other European Union Member States.  
273  Follow -up replies of Romanian respondents to Q1 and Q2.  
274  Follow -up replies of Romanian respondents to Q1 and Q2. If a patient has a prescription for a 
specific product from a doctor, the pharmacy can recommend  a different product only if it has the 
same format (among others) as the prescribed product.  
275  In the Rx space specifically, some respondents mention that Rofedex  is the only direct competitor 
to Tussin Forte , as it is based on the same (tablet) format a nd concentration as Tussin Forte . 
Follow -up replies of Romanian respondents to Q1 and Q2.  
276  Replies to Q1 - Questionnaire to pharmacies and retailers, question 45.1. Replies to Q3 - 
Questionnaire to competitors, question 63. Follow -up replies of Romanian respondents to Q1 and 
Q2. 

 
 
76 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Reckitt 
Benckiser  [10-20]% [10-20]%  [10-20]%  [10-20]%  [20-30]% [10-20]%  
Perrigo  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [10-20]%  [5-10]%  
Boiron  [10-20]%  [0-5]% [5-10]%  [0-5]% [5-10]%  [0-5]% 
Bristol -Myers 
Sqb. [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  
Sun Pharma  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Solacium 
pharma  [0-5]% [5-10]%  [0-5]% [5-10]%  [0-5]% [0-5]% 
Teva  [0-5]% [0-5]% [5-10]%  [5-10]%  [0-5]% [0-5]% 
Sanofi  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Ipsen  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Urgo  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [5-10]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Confidential Annex RFI#9 – Question 8  
The Notifying Party’s view  
(307)  The Notifying Party argues that the Transaction does not raise serious doubts for 
the following main reasons: (i) the increment brought about by the Transaction is 
minimal; (ii) the Parties do not compete closely since they largely offer products 
belonging  to different ATC classes.  
Commission ’s assessment  
(308)  On this market, the increment brought about by Pfizer  CH, which comes from its 
prescription antitussives Robitussin , is minor  ([0-5]% in value) . 
(309)  Multi -symptom cold and flu products account for an overwhelming share (around 
95%) of a potential market including both such products and antitussives. As 
such, Pfizer’s strong position on an Rx -only segment for antitussives in Romania 
does not translate into a strong position on markets based on ATC  3 com binations 
including multi -symptom cold and flu products. There is no element that would 
indicate that Pfizer’s limited market share would underestimate the competitive 
constraint the company exerts in the cold and flu area in Romania.  
(310)  Pfizer has no presen ce in multi -symptom cold and flu treatments, and thus the 
direct competitive interaction with GSK is primarily focused on antitussives, 
which has been assessed in paragraphs 293ff above.  
(311)  The results of the market investigation confirm ed that the Parties’ products which 
belong to different ATC  3 classes are not particularly close competitors. None of 
the responding pharmacies/retailers or competitors, consider GSK’s multi -
symptom products as a top alternative to Pfizer’s antitussives and conversely. As 
previous explained, respondents instead consider Boiron’s Stodal , Ascendis’ 
 
 
77 Tusend , Engelhard’s Prospan , KRKA’s Herbion Iedera , Ipsen’s Paxeladine , 
Biofarm’s Rofedex282 or Novartis’ ACC , and to a limited extent GSK’s Sinecod  as 
alternatives to Pfizer’s Robitussi n.283 Similarly, no respondent considered 
Robitussin  as a top alternative to GSK’s multi -symptom products. The main 
products competing with Parasinus  and/or Theraflu  cited by customers include 
mainly Reckitt Benckiser ’s Nurofen , as well as Perrigo’s Coldrex , UPSA’s 
Humagrip  and Fervex , Sanofi’s Antinevralgic Sinus , Teva’s Tedolfen , and 
Boiron’s Oscillococcinum , and others.284 In particular, Nurofen, Coldrex and 
Fervex are frequently listed as must -have products by Romanian 
pharmacies/retailers.285 
(312)  Some market re spondents raise the possibility that the Transaction may have an 
impact on competition in the cold and flu markets in general, including on prices, 
in particular by an increased bargaining power and additional investments in 
marketing activities, as well a s the ability of the Combined CH Business  to grow 
the Advil  brand, which would be priced at a premium compared to GSK’s 
products.286 However, the Commission notes that as Advil  is not currently present 
on the Romanian market, such introduction would likely i ncrease competition in 
multi -symptom cold and flu products (R5A) and markets including such products 
in combinations with others.  
 OTC -to-Rx: Multi -symptom cold and flu products (R5A), antitussives 
(R5C) and expectorants (R5C)  
(313)  In Romania, the Transaction al so gives rise to a Group 1 market in relation to 
multi -symptom cold and flu products, expectorants and antitussives. As 
mentioned, GSK offers multi -symptom cold and flu products under its Theraflu  
and Parasinus  brands (OTC), as well as its Tussin Forte  (Rx) and Sinecod  (OTC) 
whereas Pfizer CH markets its Robitussin  antitussives (Rx), as well as Robitussin 
Expecto  (OTC) line of expectorants. GSK does not offer expectorants in 
Romania.  
(314)  Table  24 below presents the Parties’ and their competitors’ market shares (in 
value and volume) over the past three years) on an OTC + Rx segment.  
  
                                                 
282  In the Rx space specifically, some respondents mention that Rofedex  is the only direct competitor 
to Tussin Forte , as it is based on the same (tablet) format  and concentration as Tussin Forte . See 
follow -up replies of Romanian respondents to Q1 and Q2.  
283   Replies to Q1 - Questionnaire to pharmacies and retailers, question 45.1. Replies to Q3 - 
Questionnaire to competitors, question 63. Follow -up replies of Ro manian respondents to Q1 and 
Q2. 
284  Replies to Q1 - Questionnaire to pharmacies and retailers, question 46.2. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 33.1.1. Replies to Q3 - 
Questionnaire to competitors, que stion 61.  
285  Replies to Q1 - Questionnaire to pharmacies and retailers, question 53.1.  
286   Replies to Q3 - Questionnaire to competitors, question 69.1.  


 
 
80 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Engelhard  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Bionorica 
Arzneimi  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Biofarm 
(Romania)  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Urgo  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Krka  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Fiterman 
Pharma  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Others  [0-5]% [5-10]%  [0-5]% [5-10]%  [0-5]% [5-10]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Table CF 21 of Form CO and Annex MS 2 – Romania to Form CO  
The Notifying Party’s view  
(321)  The Notifying Party argues that the Transaction does not raise serious doubts for 
the following main reasons: (i) the increment brought about by the Transaction is 
minimal; (ii) the Parties do not compete closely since they offer products 
belonging to different ATC classes.289 
Commission ’s assessment  
(322)  The Commission notes that the increment brought about by Pfizer in this space, 
from its sales of Robitussin Expecto  expectorants is marginal, as it is around [0-
5]% by value in 2018 .  
(323)  Furthermore, as explained in paragraphs 311 above, numerous viable competitors 
remain, both at ATC 3 level and in the combination of multi -symptom products 
and expectorants, including in particular Sanofi, Novartis, and Teva.  
(324)  In addition, the Parties’ products are not particularly close competitors. There is 
no overlap between the Parties with regards to either multi -symptom cold and flu 
products, or expectorants. The market investigation , as summarized in paragraphs 
228-232 above, clearly indicates that products belonging to different ATC  3 
category are rarely a top alternative to each other.  
Conclusion  
(325)  In view of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for cold and flu treatments in Romania.  
  
                                                 
289  Form CO, Chapter 5, Section 7, paragraphs 170 to 171.  

 
 
82 Commission ’s assessment  
(328)  The Commissi on notes that a relatively important share of Pfizer’s sales ( [5-10]% 
out of its total [10-20]% market share) come from the sales of Robitussin Junior , 
which is a paediatric treatment. Based on IQVIA, only Pfizer sells plain 
antitussives exclusively market ed towards children in Slovaki a. There is thus no 
overlap in this respect with GSK. As  mentioned in Section IV.3.2.1 , the market 
investigation indicates that paediatric and adult products form part of distinct 
product markets. This is particularly true of Slovakian pharmacies/retailers, 
which all consider adult and paediatric products as belonging to different markets, 
in particular due to dosage differences.292 Looking at adult plain antitussives only, 
the Parties’ market share would drop to around [30-40]%. 
(329)  The market investigation indicates that the Parties’ products are not particularly 
close competitors and that there are in any event alternatives to the Parties’ 
products remaining on the market post Transaction. Teva’s Stoptussin  and 
Ditustat , Sanofi’s Mugotussol  and Mucosolvan , and Medochemie’s Dinarex  are 
mentioned by customers as a top alternative to both Robitussin  and Sinecod .293 
Competitors also list Teva’s Stoptussin  and Ditustat , Sanofi’s Mucosolvan , as 
well as other products including IBSA’s Solmu col, Ipsen’ Paxeladine , Walmark’s 
Stopex , and Angelini’s Levopront  as viable alternatives.294 A number of the 
products considered as viable alternatives do not belong to the same ATC  4 
category which mitigates the relevance of the ATC  4 category.  
(330)  Internal do cuments of the Parties also seem to mitigate the relevance of the ATC  
4 category as they track competing products in both plain antitussives and 
combined antitussives jointly.295 
(331)  In addition, all of the responding Slovak pharmacies/retailers consider that mu lti-
symptoms cold and flu treatments are interchangeable with products marketed for 
single symptoms and that patients use indistinctively a product marketed for 
multiple symptoms in order to cure a cough.296 As a result, the Parties antitussive 
products also  face some competitive constraint from multi -symptom products 
sold in Slovakia including Sanofi’s Paralen , Perrigo’s Coldrex , Reckitt 
Benckiser ’s Nurofen , Schwabe’s Kaloba , Bayer’s Aspirin , or Boiron’s 
Oscillocccinum . 
(332)  Furthermore, the Parties’ antitussives brands are nor particularly strong in 
Slovakia. Responding Slovak pharmacies/retailers do not consider GSK products, 
including Sinecod , to be must -haves, and only one mentioned Robitussin  as a 
must -have product in Slo vakia.297  
                                                 
292  Replies to Q1 - Questionnaire to pharmacies and retailers, quest ions 42.4 and 42.5.  
293  Replies to Q2 - Questionnaire to wholesalers and buying groups, or equivalents, questions 32.1.1 
and 33.1.1.  
294  Replies to Q3 - Questionnaire to competitors, questions 62 and 63.  
295  See the document [Internal document] . 
296  Replies to Q1 - Questionnaire to pharmacies and retailers, question 42.1.  
297  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 51 and 52.  
 
 
83 (333)  Finally, respondents to the market investigation did not raise specific or 
substantiated concerns in relation to the cold and flu treatments segment in 
Slovakia.  
(334)  In view of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for antitussives in Slovakia.  
United Kingdom  
(335)  In the United Kingdom , at ATC  3 class level, the Transaction gives rise to no 
overlap. Affected markets arise however i n relation to combinations of ATC 3 
classes in the cold and flu area including Group 1 markets in (i) OTC multi -
symptom cold and flu treatments and expectorants (R5A + R5C), (ii) OTC multi -
symptom cold and flu treatments and antitussives (R5A + R5D), (iii)  OTC multi -
symptom cold and flu products, expectorants, and antitussives (R5A + R5C + 
R5D).298 
(336)  GSK offers multi -symptom cold and flu products under its Nurse  and Beechams  
brands, whereas Pfizer CH markets its Robitussin line of antitussives and 
expectorants.   
(337)  Table s 27, 28, and 29 below presents the Parties’ and their competitors’ market 
shares (in value and volume) over the past three years) in the various ATC 3 
combinations giving rise to Group 1 affected markets.  
  
                                                 
298   Group 3 markets arise for OTC expectorants and antitussives (R5C + R5D), and for Cold or Flu 
Remedies/N asal Decongestants/ Decongest Rubs/ Inhalants/Sore Throat Remedies/Nasal Saline 
Solutions/Expectorants/Cough Relievers (01B1+01B2+01B3+01C1+01F1+01A2+01A1) in  the 
UK. Regarding the OTC expectorants and antitussives (R5C + R5D)  market, the Parties’ 
combined  market shares reached [20 -30]%, [20 -30]%, and [20 -30]% by value, in 2016, 2017, and 
2018 respectively. GlaxoSmithKline’s increment amounted to [0 -5]%, [0 -5]%, and [0 -5]% by 
value, in 2016, 2017, and 2018 respectively. Moreover, there will remain strong co mpetitors post -
Transaction, such as Johnson & Johnson, with market shares of [20 -30]%, [20 -30]% and [20-
30]% by value for the years 2016, 2017 and 2018 respectively; and Stada, with market shares of 
[10-20]%, [10 -20]% and [10 -20]% by value for the years 20 16, 2017 and 2018 respectively. 
Regarding the Cold or Flu Remedies/Nasal Decongestants/ Decongest Rubs/ Inhalants/Sore 
Throat Remedies/Nasal Saline Solutions/Expectorants/Cough Relievers 
(01B1+01B2+01B3+01C1+01F1+01A2+01A1)  market, the Parties’ combined ma rket shares 
reached [20 -30]%, [30 -40]%, and [30 -40]% by value, in 2016, 2017, and 2018 respectively. Pfizer 
CH’s increment amounted to [5 -10]%, [5 -10]%, and [5 -10]% by value, in 2016, 2017, and 2018 
respectively. Moreover, there will remain strong competit ors post -Transaction, such as Johnson & 
Johnson, with market shares of [20 -30]%, [20 -30]% and [20 -30]% by value for the years 2016, 
2017 and 2018 respectively; and Reckitt Benckiser, with market shares of [10 -20]%, [10 -20]% 
and [10 -20]% by value for the ye ars 2016, 2017 and 2018 respectively. Considering the above, it 
is unlikely that any competition concerns can arise as a result of the Transaction in the markets for 
OTC expectorants and antitussives (R5C + R5D), and for Cold or Flu Remedies/Nasal 
Deconges tants/ Decongest Rubs/ Inhalants/Sore Throat Remedies/Nasal Saline 
Solutions/Expectorants/Cough Relievers (01B1+01B2+01B3+01C1+01F1+01A2+01A1) in the 
UK. 

 
 
85 Supplier  2016  2017  2018  
 Value  Volume  Value  Volume  Value  Volume  
Johnson & 
Johnson  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  
Reckitt 
Benckiser  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  [10-20]%  
Stada  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  [5-10]%  
Perrigo  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Lofthouse  [0-5]% [10-20]%  [0-5]% [10-20]%  [0-5]% [10-20]%  
Others  [5-10]%  [10-20]%  [5-10]%  [10-20]%  [5-10]%  [10-20]%  
Total  100,0%  100,0%  100,0%  100,0%  100,0%  100,0%  
Source: Table CF 10 of Form CO and Annex MS 2 – United Kingdom  
 The Notifying Party’s view  
(338)  The Notifying Party argues that the Transaction does not raise serious doubts for 
the following main reasons: (i) there is significant competition in the UK markets 
in particular from private label products which are not correctly assessed by 
IQVIA data; (ii) the Parties do not compete closely, in particular since the y offer 
products belonging to different ATC classes.299 
Commission’s assessment  
(339)  All of these plausible markets may be assessed jointly, as the competitive 
dynamics are similar across ATC 3 combinations, considering the lack of overlap 
between the Parties at ATC  3 level.300 The competitive dynamics do not change 
materially when assessing markets based on adult only products, where the 
Parties’ market shares are essentially similar.301 
(340)  The market investigation largely validated the Notifying Party’s main arguments,  
which mitigate the high level of market shares witnessed in the UK.  
(341)  Respondents to the market investigation confirmed that throughout the cold and 
flu area, there are many alternative to the Parties’ product in each category, and 
that the Parties’ product s are not close competitors:  
 In multi -symptom products, the main competitors to GSK’s Nurse  and 
Beechams  cited by respondents to the market investigation include 
primarily Reckitt Benckiser ’s Nurofen Cold & Flu  and Lemsip , and Johnson 
& Johnson ’s Benylin and Sudafed . Others include Aspar’s Hot Lemon , as 
well as multi -symptom cold and flu products offered by Galpharm, 
                                                 
299  Form CO, Chapter 5, Section 7, paragraphs 101 to 109.  
300  GSK holds a marketing authorisation for Tixylix in the UK, which is erroneously recorded by 
IQVIA under ATC Code R5D (instead of ATC 3 Code R5F, for which Pfizer is not present) 
according to the Notifying Party. This was confirmed during the market investigation, as Tixylix  
was not identified as  a relevant product by any respondent.  
301  The Parties’ activities do not overlap for paediatric products regarding multi -symptom cold and 
flu, expectorants and antitussives (ATC 3 – R5A+R5C+R5D) in the United Kingdom.  
 
 
86 Numark, Solpadeine, or Olbas.302 No Pfizer product is mentioned by 
respondents as a top alternative in this category.  
 In antitussives, the main competitors of Pfizer’s Robitussin  cited by 
respondents include primarily Johnson & Johnson ’s Benylin  and Actifed , 
Reckitt Benckiser ’s Lemsip , and Stada’s Covonia,  Perrigo’s Buttercup  and 
Bronchostop .303 No GSK product is mentioned by respondents as a top 
alternative in this category.  
 In expectorants, the main competitors of Pfizer’s Robitussin  cited by 
respondents include Johnson & Johnson ’s Benylin , Reckitt Benckiser ’s 
Lemsip , Stada’s Covonia , and Numark’s Chesty Cough .304 No GSK product 
is mentioned by respo ndents as a top alternative in this category.  
(342)  Furthermore, Pfizer is not a particularly strong player in the cold and flu area in 
general in the UK. While a majority of responding customers consider GSK 
offers must -have products, in particular Nurse  and Beechams , in addition to nasal 
sprays,305 an overwhelming majority consider that Pfizer products in the cold and 
flu space (i.e. Robitussin ) are not must -haves.306 Other competitors of the Parties, 
which are active in both multi -symptom cold products and cough  treatments, have 
must -have brands in more than one product category. Such competitors include in 
particular Johnson & Johnson  and Reckitt Benckiser .307 
(343)  The market investigation also confirms that private label products play a 
particularly preponderant role on the UK market. Over two third of responding 
pharmacy/retailers consider that these products are considered as substitutable to 
branded products by patients.308 For each product category identified above, 
many respondents mention private label products as top alternatives to branded 
products, including the Parties’. An important share of these sales are not 
reflected in the IQVIA data provided. As a result the Parties’ market shares as 
laid out in Tables 27, 28, and 2 9 are not a fully accurate reflection of  the 
competitive dynamics of the market and are likely to be overestimated.  
(344)  Finally, respondents to the market investigation did not raise specific or 
substantiated concerns in relation to the cold and flu treatments segment in the 
United Kingdom.  
                                                 
302  Replies to Q1 - Questionnaire to p harmacies and retailers, question 44.2. Replies to Q3 - 
Questionnaire to competitors, question 60.  
303  Replies to Q1 - Questionnaire to pharmacies and retailers, question 45.1. Replies to Q3 - 
Questionnaire to competitors, question 63.  
304  Replies to Q1 - Questionnaire to pharmacies and retailers, question 46.1. Replies to Q3 - 
Questionnaire to competitors, question 63.  
305  Replies to Q1 - Questionnaire to pharmacies and retailers, question 51. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, o r equivalents, questions 33.2.  
306  Replies to Q1 - Questionnaire to pharmacies and retailers, question 52. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, questions 32.2.  
307  Replies to Q1 - Questionnaire to pharmacies and r etailers, question 53. Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, questions 34.1.  
308  Replies to Q1 - Questionnaire to pharmacies and retailers, question 50.2.  
 
 
87 (345)  In lig ht of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for cold and flu treatments in the United Kingdom.  
3.3. Gastrointestinal treatments  
3.3.1.  Produc t market definition  
(346)  OTC gastrointestinal treatments include a variety of products typically used on a 
short -term or intermittent basis against reflux symptoms (e.g. heartburn and 
regurgitation), including antiacids, antiflatulents, and antiulcerants.  
(347)  GSK offers gastrointestinal treatments under the ENO, Andrews Liver Salts , and 
Pantoloc Control  brands . Pfizer CH is active in particular with products sold 
under the brands Nexium, Magnesia Bisurata, Simeco, and Aludrox .  
(348)  In terms of ATC classification, gastrointestinal treatments relevant in the context 
of the Transaction are classified in the ATC class "A2 – Antacids, Antiflatulents, 
Antiulcerants". In terms of OTC classification, the relevant products are classified 
in OTC class 03. Table 30 below summa rises the relevant sub -categories of 
gastrointestinal treatment ATC and OTC classes . 
Table 30 – Gastrointestinal treatments – ATC/OTC Classes  
ATC Code  OTC Code  
A2 
 Antacids, Antiflatulents, 
Antiulcerants  
N/A 
A2A  Antacids, Antiflatulents,  
Carminatives  
A2A1  Plain Antacids  03G1  Antacids  
03G9  Oth Digest.T. & Stomach R  
A2A2  Plain Antiflatulents  03A3  Antiflatulents  
A2B  Antiulcerants  N/A 
A2B1  H2 Antagonists  03G2  H2 Antagonists  
A2B2  Acid Pump 
Inhibitors  03G3  Proton Pump Inhibitors  
Source: Form CO – Table GI 2  
  
  
 
 
88 Commission ’s precedents  
(349)  The Commission has assessed gastrointestinal treatments sold OTC at ATC 3 and 
ATC 4 level, both based on individual classes and combinations thereof.309 In 
more recent cases, the Commission has assessed products  in this area on the basis 
of a combination of ATC 3 classes including all antacids, antiflatulents and 
carminatives, and antiulcerants (ATC 3 classes A2A + A2B).310 The Commission 
also assessed markets at ATC 4 level for plain antacids only (ATC 4 c lass 
A2A1),311 and proton pump inhibitor or “PPI” (ATC 4 class A2B2).312 
(350)  The Commission has also considered whether a segmentation of gastrointestinal 
treatments (and in particular H2 Antagonists313 or Proton Pump Inhibitors )314 by 
molecule was warranted, but ulti mately left the question open.315  
The Notifying Party’s view  
(351)  The Notifying Party argues that regardless of precise market definition, the 
different types of gastrointestinal treatment typically exert some degree of 
competitive pressure on one another.316 
                                                 
309  See for example Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer 
Ingelheim Consumer Healthcare Business , paragraph 143 et seq.; Commission decision of 28 
January 2015 in case M.7276 – GlaxoSmithKline/ Novartis Vaccines Business (Excl. Influenza) / 
Novartis Consumer Health Business , paragr aph 333 and 334; Commission decision of 
19November 2015 in case M.3544 – Bayer Healthcare/Roche (OTC business) , paragraph 16 and 
18;  Commission decision of 4 February 2009 in case M.5253 – SanofiAventis/Zentiva , paragraph 
35; Commission decision of 29 Jun e 2018 in case M.8889 – Teva / PGT OTC Assets , paragraph 89 
and Commission decision of 25 October 2010 in case M.5953 – Reckitt Benckiser/SSL,  paragraphs 
38 to 43.  
310  Commission decision of 4 August 2018 in case M.7919 – Sanofi/Boehringer Ingelheim Consumer 
Healthcare Business, paragraph 143.  
311  Commission decision of 28 January 2015 in case M.7276  – GlaxoSmithKline/ Novartis Vaccines 
Business (Excl. Influenza) / Novartis Consumer Health Business, paragraph 336.  
312  Commission decision of 29 June 2010 in case M.8889  – Teva / PGT OTC , paragraphs 85 to 87 
and Commission decision of 29 July 2015 in case M.7645  Mylan/Perrigo , paragraph 50.  
313  H2 antagonists function by blocking signals generated by histamine receptors on  cells that are 
responsible for acid secretion, thus lowering the acidity of the stomach by preventing the acid’s 
secretion into the stomach. The four common types of H2 antagonists (generally available OTC in 
lower doses and by prescription in higher dose s) are (i) ranitidine, (ii) famotidine, (iii) cimetidine, 
and (iv) nizatidine. H2 antagonists are categorised in ATC 3 category A2B (ATC 4 category 
A2B1)7 and OTC category 03G2 – H2 antagonists.  
314  Proton Pump Inhibitors (“ PPIs”) work by blocking (inhibiti ng) acid secretion in the stomach. Acid 
is pumped into the stomach by a specific enzyme (the hydrogen -potassium adenosine 
triphosphatase enzyme system or “proton pump”). The five most common types of PPIs are (i) 
pantoprazole , (ii) omeprazole , (iii) lansop razole , (iv) esomeprazole , and (v) raberprazole . OTC 
PPIs are typically intended to be used for frequent symptoms of reflux/heartburn (but not for 
indigestion). According to the Notyfying Party, PPIs have been found to be more effective than 
H2 antagonists  in many patients in reducing the production of stomach acids. PPIs are categorised 
in ATC 3 category A2B (ATC 4 category A2B2) and OTC category 03G3 - Proton pump 
inhibitors.  
315  Commission decision of 29 June 2010 in case M.8889  – Teva / PGT OTC , paragrap hs 85 to 87.  
316   Form CO, Chapter 6, Section 6, paragraph 35.  
 
 
89 Comm ission ’s assessment  
(352)  For the purposes  of the present case, the exact market definition can be left open, 
as no serious doubts regarding the compatibility of the Transaction with the 
internal market arise under any plausible alternative market definition (namely, at 
ATC 3 level, ATC 4 level, combinations thereof, or molecule  level ). 
3.3.2.  Geographic market definition  
(353)  As explained in Section IV.1.2, the Commission considers the relevant product 
markets, as defined in Section IV.3.3.1 , to be national in scope.  
3.3.3.  Competitive assessment  
(354)  Based on h istorical  sales data , overlaps  between the Parties’ activities in 
gastrointestinal treatments arose , mostly in connection to GSK’s Pantoloc 
Control  product, an antiulcerant (and more specifically a PPI), under licence from 
Takeda. [Information on product license] . Pantoloc Control  will not be sold 
anymore by GSK going forward, a fact confirmed by Takeda. Consequently, all 
affected markets arising as a result of GSK sales of Pantoloc Control  are 
disregarded for the purposes o f the present Decision.  
(355)  On a forward -looking basis, affected markets arise only in Ireland, and solely 
based on combination of ATC 3 or ATC 4 classes together , as the Parties’ 
activities do not overlap at ATC 3 or 4 level s separately . Specifically, t he Parties’  
activities give rise to affected markets in Ireland (in gastrointestinal treatments on 
a forward -looking basis) in combinations involving both PPIs (ATC 4 class 
A2B2, including Pfizer’s Nexium Control ) and plain antiacids (ATC 4 class 
A2A1, includ ing GSK’s Andrews Liver Salts) .317 Such affected markets arise on 
the basis of the following  potential market s (i) ATC 3 classes A2A + A2B; (ii) 
ATC 4 classes A2A1 + A2B1 + A2B2; and (iii) ATC 4 classes A2A1 + A2B2.  
(356)  The Commission notes that a ll these poten tial markets are Group 3 markets, 
which involv e a minimal (around [0-5]%) increment due to GSK’s limited sales 
of Andrews liver Salt . Furthermore, a number of other strong players, including 
Reckitt Benckiser , Johnson & Johnson , Bayer, Sanofi, Perrigo and Novartis will 
remain on these segments post -Transaction.  
(357)  No affected market arises on the basis of molecules as Nexium Control  and 
Andrews Liver Salts  are not based on the same active ingredients, as the former 
contains esomeprazole  and the latter contain s instead sodium bicarbonate , citric 
acid and magnesium sulphate .  
                                                 
317  According to the Notifying Party, a discrepancy arises between the classification of Andrews Liver 
Salts in the MIDAS and the OTC -IMS databases. In MIDAS, the product is classified as A2A1 
(plain antacid) whereas in OTC -IMS, the product is classified as 03A9 (Other digestive treatments 
& stomach remedies) rather than as plain antacids (03G1), possibly due to the fact that Andrews 
Liver Salts is indicated as both an antacid and a laxative. Should Andrews Liver Salts be qualified 
as a laxative, no overlap with Pfizer CH would arise.  
 
 
90 (358)  No respondent to the market investigation raised concern with regards to the 
markets for OTC gastrointestinal treatments in Ireland.318 
3.3.4.  Conclusion  
(359)  In view of the elements discussed in this Se ction, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for gastrointestinal treatments in the EEA.  
3.4. Nutrition and digestive health  
(360)  The activities of the Parties within Nutrition and Digestive Health overlap in  
specific EEA Member States regarding ( i) multivitamins and (ii) laxative s.  
Regarding multivitamins, the Parties’ activities overlap in Slovakia and result in 
an affected market. Rega rding laxatives, the Transaction does not  give rise to 
affected markets in any EEA Member State  under any plausible market 
definition .319 For this reason, the remainder of this Section will exclusively deal 
with multivitamins.  
3.4.1.  Product market definition  
(361)  Multivitamins are dietary supplements contain ing multiple vitamins and minerals. 
They are generally purchased as a food supplement. The purpose of multivitamins 
is to ensure that patients receive all necessary vitamins if they do not obtain them 
through their diet or due to a medical condition.  
(362)  In mu ltivitamins, GSK manufactures and offers products mainly under the Cetebe  
brand . Pfizer CH is active in particular with the brands Centrum  and Multi -tabs.  
(363)  In terms of ATC classification, vitamins are classified in the ATC class "A11 – 
Vitamins" . In terms of OTC classification, vitamins are classified  in the OTC 
class 04. Table 31 below summarises the sub -categories of multivitamins ATC 
classes.  
  
                                                 
318  Replies to Q1 - Questionnaire to pharmacies and retailers, question 55.1. Rep lies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, questions 38.  
319   In laxatives, the only overlap between the Parties’ products arises in Italy. In its decisional 
practice, the Commission has considered that “ all laxatives const itute one relevant market ” (see, 
e.g., M.7919 – Sanofi/Boehringer Ingelheim , paragraph 205) and in a recent case it concluded that 
“the results of the market investigation do not indicate that the drugs for constipation should be 
defined by molecule or at the ATC4 level ” (M.7379 – Mylan/Abbott EPD -DM, paragraph 203), 
thus determining that the ATC 3 level is the appropriate product market. In turn, the Parties would 
have an approximate market share of [5 -10]% for laxatives at the ATC 3 level in Italy. Eviden ce 
collected over the course of the market investigation also confirmed that GSK and Pfizer CH’s 
products have different profiles and do compete with other types of laxatives in Italy (Minutes of a 
call with a wholesaler dated 16 April 2019).    
 
 
91 Table 31  – Vitamins – ATC/OTC Classes  
ATC Code  OTC Code  
A11 Vitamins  
04 Vitamins, Minerals & Nutritional  
Supplements  
A11A  
 Multivitamins with minerals  
04A Multivitamins with 
minerals  
A11A1  Prenatal  04A4  Prenatal  
A11A2  Paediatric  04A2  Child  
A11A3  Geriatric  04A3  Seniors  
A11A4  Other multivitamins 
with minerals  04A1  Adult  
A11B  Multivitamins without minerals  
04B Multivitamins without 
mineral  
A11B1  Prenatal  04B4  Prenatal  
A11B2  Paediatric  04B2  Child  
A11B3  Geriatric  04B3  Seniors  
A11B4  Other multivitamins 
with minerals  04B1  Adult  
Source: Form CO – Table NDH 1  
Commission’s precedents  
(364)  The Commission has previously assessed multivitamins at ATC 3 and ATC 4 
level, but also on the basis of OTC 2 and OTC 3 level, leaving open whether a 
sub-segmentation according to the target groups (prenatal, child, seniors or adult  
use), form of administration (capsules, powders, liquid) or sales channels 
(pharmacy or mass market) is needed.320  
The Notifying Party’s view  
(365)  The Notifying Party considers that multivitamins should be examined at the ATC 
3 level.321 
Commission ’s assessment  
(366)  For the purposes of the present case, the most plausible product markets in the 
multivitamins space consist of ATC 3 / OTC 3 classes, which can be  further 
segmented based on ATC 4 / OTC 4 class (which take into account the product’s 
target groups or form o f administration).  Hence the competitive assessment will 
focus on the effects of the Transaction on these segments.  
                                                 
320  See Com mission decision of 19 December 2008 in case M.5295 – Teva/Barr; Commission 
decision of 9 June 2011 in case M.6162 – Pfizer/Ferrosan Consumer Healthcare Business and 
Commission decision of 4 August 2016 in case M.7919 – Sanofi/Boehringer Ingelheim Consumer  
healthcare Business . 
321   Form CO, Chapter 7, Section 6, paragraph 24.  
 
 
92 3.4.2.  Geographic market definition  
(367)  As explained in Section IV.1.2, the Commission considers the relevant product 
markets, as defined in Section IV.3.4.1 , to be national in scope.  
3.4.3.  Competitive assessment  
(368)  In Slovakia, at ATC 4 level, the Transaction gives rise to a Group 3 affected 
market in relation to adult multivitamins (ATC 4 - A11A4 / OTC 4 - 04A1), with 
a combined market share of the Parties of [20-30]% in value for 2018. 322 GSK’s 
sales of multivitamins are very low in Slovakia and the increment brought about 
by the Transaction is very small  (around [0-5]%). Various strong competitors are 
active on this market segment, such as Walmark, Merck, Dr. Max, and many 
others.  
(369)  Respondents to the market investigation did not raise any concerns regarding the 
effect of the Transaction in the multivitamins category.  
(370)  One respondent raised concerns regarding the combination of Cetebe  and 
Centrum  that would alleg edly lead the Parties to have a strong position on the 
vitamins market in Germany.323 However, the Parties do not overlap at ATC 3 / 
ATC 4  level in Germany, as they are focused on the supply of different kind of 
vitamins; GSK offers mainly plain vitamin C an d vitamin C combinations, 
whereas Pfizer CH offers multivitamins, as well as other supplements, including 
calcium and magnesium supplements.324 Potential effects arising from the 
combinations of different products is assessed under Section IV.4 regarding 
conglomerate effects.  
3.4.4.  Conclusion  
(371)  In light of the elements discussed in this Section, the Commission concludes that 
the Transaction does not raise serious doubts as to its compatibility with the 
internal market for multivitamins in the EEA.  
4. CONGLOMERATE EFFECTS  
(372)  Competitive concerns might not be limited to horizontal unilateral effects. 
Conglomerate effects stem from a concentration where the undertakings 
concerned are active on closely related markets (for example, as suppliers of 
complementary products o r products that belong to the same product range). In 
case of a concentration giving rise to conglomerate effects, the Commission will 
assess the concentration in accordance to the framework set by the Non -
Horizontal Merger Guidelines.325 The market investigation in the present case 
aimed at understanding whether the combination of the Parties’ product portfolios 
                                                 
322  Form CO, Chapter 7, Section 7, paragraph 40.  
323  Replies to Q3 - Questionnaire to competitors, question 73.1. 
324  Parties’ reply to RFI 9 dated 21 June 2019.  
325  Guidelines on the assessment of non -horizontal mergers under the Council Regulation on the 
control of concentrations between undertakings ("Non -Horizontal Merger Guidelines"), OJ C 265, 
18.10.2008, paragraph 7. 
 
 
93 could lead to competition concerns as a result of tying and bundling practices by 
the Combined CH Business, either in relation t o a specific product category or 
across product categories.  
Notifying Party’s view  
(373)  The Notifying Party argues in particular that (i) the Transaction will not grant the 
Combined CH Business the ability to foreclose competitors via tying or bundling 
practic es, in particular since Pfizer CH’s products are not strongly 
complementary to GSK’s, and because many rivals have wider OTC product 
portfolios than the Parties; and that (ii) the Combined CH Business will have no 
additional incentive to engage in bundling  practices compared to GSK pre -
Transaction due to the limited complementarity between the Parties’ products. 326 
Commission ’s assessment  
(374)  The evidence gathered in the context of the market investigation supports the 
Notifying Party’s claim  that the Transacti on would not increase the ability and 
incentive of the Combined CH Business to foreclose competitors through tying 
and bundling practices.  
(375)  Indeed, the results of the market investigation indicated that tying or bundling is 
not a common feature in the phar maceutical OTC space, as a majority of 
competitors or wholesalers do not offer bundles to their customers.327 Wholesalers 
and retailers also generally procure the specific products they need on an 
individual basis.328  
(376)  Market participants also noted that they would generally be able to turn to 
alternative suppliers (and products) in the OTC space besides the Combined CH 
Business, irrespective of the product category,329 limiting the ability of the 
Combined CH Business  to foreclose competitors through tying and bu ndling 
practices.330 
(377)  Some respondents raised non-specific  concerns linked to the Combined CH 
Business’ enlarged product range.331 According to these respondents, such 
enlarged portfolio would in particular grant the Combined CH Business the 
ability to monopoli se shelf space at retail level, by offering a full range of 
complementary OTC products. The market investigation, and in particular 
                                                 
326   Form CO, Chapter 2, Section 6, paragraph 30ff.  
327  Replies to Q1 - Questionnaire to pharmacies and retailers, question 8; Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 12 .; Replies to Q3 - 
Questionnaire to competitors, question 8 . 
328  See Minutes of a call  with a wholesaler dated 14 March 2019; Minutes of a call with a pharmacy 
chain dated 01 April 2019.  
329  See Sections  IV.3.1.3, IV.3.2 for alternatives in the Combined CH Business’ main market 
segments. 
330  Non-Horizontal Merger Guidelines , paragraph 99.  
331  Replies to Q3 - Questionnaire to competitors, question 73.1 . Minutes of a call with a competitor 
dated 14 March 2019.  
 
 
94 responses by pharmacies and other retailers have firmly dismissed that 
possibility, as an overwhelming majority of responden ts indicated that , across 
product categories, the Transaction will either have no impact on the shelf space 
for products of the Combined CH Business, or will even lead to less shelf 
space ,332 as pharmacies and retailer tend to offer products from different s uppliers 
in every product category.   
(378)  Most of the concerns raised during the market investigation, in particular by a 
number of competitors, appear more likely to have the character of an efficiency, 
such as concerns relating to the Combined CH Business off ering discounts over a 
wider portfolio of products or having an increased ability to market its products 
(including via advertising).333  
(379)  Furthermore, the market investigation indicates that a number of competitors, 
which have a comparable or wider portfolio  of OTC products  (i.e. across all OTC 
categories) will remain on the markets post -Transaction , further limiting the 
ability of the Combined CH Entity to attempt to foreclose competitors through 
tying and bundling practices.334 The most cited examples were co mpetitors like 
Sanofi, Johnson & Johnson , Bayer , or Reckitt Benckiser.335 This applies to all 
EEA countries where the Parties’ activities result in an affected market (even if 
the competitors named slightly differ from one country to another). One notable 
exception is Malta where a majority of pharmacies indicated that no other  player 
had a similar or larger OTC product range than the Combined CH Business. 
However, neither GSK nor Pfizer (nor any other pharmaceutical company) is 
directly active in Malta . In this country, the Parties  offer products via distributors  
and parallel i mports are commonplace .336 For these reasons, conglomerate effects 
are unlikely to arise in Malta.  
(380)  Respondents raising concerns also typically focused on conglomerate effects 
relating to a specific product category, in particular TPM, as well as conglomerate  
effects between TPM and other product categories. In that respect, the global 
remedy offered by the Parties, described in Section V, removes almost entirely 
the horizontal overlaps in the TPM segment, and thus removes any potential 
conglomerate effect in relation to these markets as well.  
(381)  Considering that the Commission concludes that the Combined CH Business will 
not have the ability to engage in tying and bundling practices, it is not necessary 
to investigate whether it would have the incentive to engage  in such practices.  
(382)  In view of the above, and in particular the lack of ability of the Combined CH 
Business to engage in tying and bundling practices aimed at foreclosing 
                                                 
332  Replies to Q1 - Questionnaire to pharmacies and retailers, questions 28.5, 41.5 and 54.5 . 
333  Replies to Q3 - Questionnaire to competit ors, question 73.1 . 
334  Non-Horizontal Merger Guidelines , paragraph 103.  
335  Replies to Q1 - Questionnaire to pharmacies and retailers, question 4; Replies to Q2 - 
Questionnaire to wholesalers and buying groups, or equivalents, question 10; Replies to Q3 - 
Questionnaire to competitors, question 6 . 
336  See paragraphs 280 and 289. 
 
 
95 competitors, the Transaction  does not  to lead to serious doubts as to its 
compatibil ity with the internal market in relation to conglomerate effects.   
V. COMMITMENTS  
1. FRAMEWORK FOR THE ASS ESSMENT OF THE COMMI TMENTS  
(383)  Where a concentration raises serious doubts as regards its compatibility with the 
internal market, the Parties may undertake to modify the concentration so as to 
remove the grounds for the serious doubts identified by the Commission. 
Pursuant to Article 6(2) of the Merger Regulation, where the Commission finds 
that, following modification by the undertakings concerned, a notified 
concentration no longer raises serious doubts, it shall declare the concentration 
compatible with the internal market pursuant to Article 6(1)(b) of the Merger 
Regulation.   
(384)  As set out in the Commission’s Remedies Notice, 337 commitments have to 
eliminate the competition concerns entirely, and have to be comprehensive and 
effective from all points of view. 338  
(385)  In the first phase of the Commission's  investigation  of a concentration ("Phase 
I"), commitments offered by the Parties can only be accepted where the 
competition concerns are readily identifiable and can easily be remedied. The 
competition concern s therefore need to be straightforward and the remedies clear -
cut and sufficient to clearly rule out "serious doubts" within the  meaning of 
Article 6(1)(c) of the Merger Regulation, so that it is not necessary to enter into 
an in -depth ("Phase II") investigation. Where the assessment confirms that the 
proposed commitments remove the grounds for serious doubts on this basis, the 
Com mission clears the concentration in Phase I.339 
(386)  In assessing whether commitments will maintain effective competition, the 
Commission considers all relevant factors, including the type, scale , and scope of 
the proposed commitments, with reference to the struc ture and particular 
characteristics of the market in which the concentration is likely to significantly 
impede effective competition, including the position of the Parties and other 
participants on the market.340 
(387)  In order for commitments to comply with those  principles, they must be capable 
of being implemented effectively within a short period of time. Concerning the 
form of acceptable commitments, the Merger Regulation gives discretion to the 
Commission as long as the commitments meet the requisite standard . Structural 
commitments will meet the conditions set out above only in so far as the 
                                                 
337  Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and 
under Commission Regulation (EC) No 802/2004 (OJ C 267, 22.10.2008, pages 1 to 27) ("the 
Remedies Notice").  
338  Remedies Notice, paragraphs 9 and 61.  
339  Remedies Notice , paragraph 81.  
340  Remedies Notice, paragraph 12.  
 
 
96 Commission is able to conclude with the requisite degree of certainty, at the time 
of its Decision, that it will be possible to implement them and that it will be likely 
that the new commercial structures resulting from them will be sufficiently 
workable and lasting to ensure that effective competition will be maintained.341 
Divestiture commitments are normally the best way to eliminate competition 
concerns resulting from ho rizontal overlaps.   
2. PROCEDURE  
(388)  In order to render the Transaction compatible with the internal market, the Parties 
submitted a set of commitments under Article 6(2) of the Merger Regulation on 
19 June 2019 (the "Initial Commitments"). The Commission market tested the 
Initial Commitments in order to assess whether they are sufficient and suitable to 
remedy the serious doubts identified in Section IV.3.1.2  of this Decision. 
Following the feedback received during the market test, the Initial Commitments 
were re fined and improved . The Parties submitted amended commitments on 9 
July 2019  (the "Final Commitments"). The Final Commitments are annexed to 
this Decision and form an integral part thereof.  
3. INITIAL COMMITMENTS  
(389)  In order to dispel the serious doubts raised by the Commission in relation to TPM 
in several EEA Member States , the Parties submitted  the “Initial Commitments 
consisting in the divestiture of Pfizer  CH’s ThermaCare  business globally, 
including all necessary assets and , in particular , a dedicated manufacturing 
facility located in the US (the “Divestment Business”).  
(390)  More specifically, the Divestment Business, as per the Initial Commitments, 
include d in particular:  
 The entire product range sold under the ThermaCare  brand globally;  
 Ongoin g and identified past R&D projects and pipeline products relating to 
the ThermaCare  brand globally;  
 A dedicated manufacturing facility, located in Albany, Georgia, USA which 
manufactures 100% of the ThermaCare  products sold globally , and a ll 
production equ ipment at the Albany site;  
 All intellectual property rights relating to ThermaCare  products and R&D 
or pipeline projects, including patents, domain names as well as 
ThermaCare  trademark, design rights and copyrights;  
 A non -exclusive, royalty -free license t o the “Robax ”  trademark in Canada 
for a transitional period  for the purpose of allowing  the purchaser to 
continue co -brand ing Pfizer CH’s heat patches in Canada under the 
ThermaCare/Robax  trademar ks during a transitional period;   
                                                 
341   Remedies Notice, paragraph 10.  
 
 
97  A non -exclusive, royalty -free license to the “Pfizer ” trademark in the 
countries where the Divestment Business operates, for the limited purpose 
of allowing the purchaser to sell ThermaCare  products under the “Pfizer ” 
trademark until the purchaser fulfils all applicable regulatory requirements 
(including obtaining its own CE marking), for a transitional period;  
 Data and know -how exclusively or predominantly used for the products of 
the Divestment Business;  
 All licenses, permits, regulatory approvals , and authorizations specific to 
the operation of the Divestment Busines s; 
 R&D equipment, raw materials and records primarily devoted to the 
Divestment Business, or required for its viability;  
 Dedicated personnel, in cluding all personnel employed at the Albany site, 
dedicated R&D, marketing, and supply planning personnel; and  
 Transitional supply and service arrangements, including for packaging, 
transport, warehousing, logistics, sourcing and supply, distribution, IT 
services, quality systems and adverse event reporting, in order to maintain 
the economic viability and competitiveness of the Divestment Business, at 
the option of the purchaser.  
(391)  Under the Initial Commitments, t he Parties also committed to provide their be st 
efforts to transfer contract manufacturing and supply agreements relating to the 
Divestment Business. For some sourcing or supply agreements, the Parties also 
commit ted to use their best efforts to conclude back -to-back sourcing or supply 
agreements for  a reasonable period  of time .  
(392)  The Parties further committed to transfer the Divestment Business to a purchaser 
with experience in the marketing, promotion , and supply of consumer healthcare 
products, with an established presence or access to distribution channels in the 
EEA countries where the Divestment Business is active, as well as experience in 
working with authorities to obtain the relevant regulatory approvals.  
4. RESULTS OF THE MARKET  TEST  
(393)  On 20 June 2019, the Commission launched a market test with th e purpose of 
verifying whether the Initial Commitments were sufficient to clearly rule out the 
serious doubts identified by the Commission  (see Section IV.3.1.2  of this 
Decision) . In particular, the market test aimed at verifying whether the Initial 
Commit ments were overall suitable to address the competitive concerns identified 
and likely to enable the Divestment Business to continue acting as a competitive 
force on  the TPM segment. The market test also aimed to seek feedback about the  
relevant criteria to  identify a suitable purchaser for the Divestment Business.  
(394)  Overall, the feedback received from respondents to the market test was positive. 
The overwhelming  majority of respondents consider ed that the commitments 
 
 
98 were overall suitable to remove the concer ns identified in the TPM area .342 
Respondents consider ed, generally,  that the Divestment Business  includes the 
necessary  combination of  assets,343 and is likely to constitute an attractive 
investment opportunity for a range of purchasers.344  
(395)  However, the results of the  market test also identified issues with the Initial 
Commitments requiring further improvements.   
(396)  Firstly, respondents required clarifications regarding the assets , rights , and 
information transferred to the Divestment Business, so as to ensu re that it 
includes all relevant third party licenses and historical data on sales, pricing , as 
well as clinical data .345 
(397)  Secondly, a number of respondents indicate d that the duration of the transitory 
supply agreements, as initially foreseen , was not suffic ient. While the exact 
duration considered suitable for such agreements ([Time period] ) was not 
disclosed to  respondents  as part of the market test , a majority of competitors 
indicated that such supply agreements should last for a period of two-three years 
or more.346  
(398)  Thirdly, the market test  indicated that criteria to assess the suitability of the 
purchaser should be adjusted to require specifically: (i) experience in the sale and 
marketing of pharmaceuticals,347 in particular OTC pharmaceutical  product s348 
(but not necessarily medical devices);349 (ii) the ability to innovate in the field of 
healthcare products;350 and (iii) existing third -party distribution arrangements in 
place in countries where the purchaser does not have its own salesforce.351 
(399)  Fourthly and l astly, a number of competitors raise d concerns about the 
preservation of the viability and competitiveness of the Divestment Business in 
the divestiture scenario  contemplated under the Initial Commitments. 
Respondents in particular fear ed that the ThermaCa re brand equity would be 
                                                 
342  Replies to R1 - Questionnaire to TPM competitors, question 2. Replies to R2 - Questionnaire to 
TPM purchasers, question 2.  
343  Replies to R1 - Questionnaire to TPM compe titors, question 3. Replies to R2 - Questionnaire to 
TPM purchasers, question 3.  
344  Replies to R1 - Questionnaire to TPM competitors, question 11. Replies to R2 - Questionnaire to 
TPM purchasers, question 8.  
345  Replies to R1 - Questionnaire to TPM competitors, question 3.1.  
346  Replies to R1 - Questionnaire to TPM competitors, question 9.2.  
347  Replies to R1 - Questionnaire to TPM competitors, question 14. Replies to R2 - Questionnaire to 
TPM purchasers, question 11.  
348  Replies to R1 - Questionnaire to TPM competitors, question 15. Replies to R2 - Questionnaire to 
TPM purchasers, question 12.  
349  Replies to R1 - Questionnaire to TPM competitors, question 16. Replies to R2 - Questionnaire to 
TPM purchasers, question 13.  
350  Replies to R1 - Questionnaire to TPM competitors, question 7.1.  
351  Replies to R1 - Questionnaire to TPM competitors, question 13. Replies to R2 - Questionnaire to 
TPM purchasers, question 10.  
 
 
99 negatively impacted over the divestiture period, including due to the risk of 
distorted incentives on the part of a combined GSK/Pfizer CH salesforce, that 
would likely focus on the sales of Volta -branded products  rather than pushi ng for 
additional ThermaCare  sales.352  
5. FINAL COMMITMENTS  
(400)  The Commission communicated to the Parties a summary of the comments made 
by respondents to the market test, as well as its preliminary assessment of these 
comments.  
(401)  In order to address the results of the market test, the Parties submitted the Final 
Commitments on 9 July 2019. The Final Commitments differ from the Initial 
Commitments on the following main aspects:  
 The scope of the rights and assets transferred as part of the Divestment 
Business has been clarified so as to include: (i) IP rights used under third -
party licenses; and (ii) historic and current financial/accounting, pricing , 
sales, and clinical data.  
 The purchaser criteria have been amended to ensure that the purchaser: (i) 
has exper ience in the supply of OTC products (but not necessarily medical 
devices); (ii) has existing third -party access to distribution channels in case 
it does not have its own presence in each relevant EEA market; and (iii) has 
the ability to innovate.  
 Transiti onal supply agreements have been extended from a period not 
exceeding [Time period]  with a possibility to extend them for [Time period]  
(that is [Time period]  maximum), to a period not exceeding [Time period]  
with a possibility to extend such agreement for  [Time period]  of a 
maximum duration of [Time period]  (first period), [Time period]  (second 
period) and [Time period]  (third period) respectively, potentially bringing 
the total duration of such agreements to [Time period] .  
 The first divestiture period has been reduced. The timing of other 
procedural steps , in particular in relation to the nomination of the 
monitoring trustee , has also been revised accordingly . 
 The Parties  additionally  offer that the Purchaser will have the opportunity, 
on request, to inte rview and employ up to [50-60]% of Pfizer CH personnel 
involved in the sale of ThermaCare  in [Geography] . 
 The Parties  additionally  commit not to integrate the Pfizer CH operations 
(including all employees)  with any operations  of GSK (including all 
employees)  in [Geography] ), until the closing of the acquisition of the 
Divestment Business by a suitable purchaser .  
                                                 
352  Replies to R1 - Questionnaire to TPM competitors, questions 2.1, 5.1, and 6.  
 
 
100  The Parties additionally  commit to put in place specific incentive schemes 
to promote sales of ThermaCare  products  in [Geography] , until t he closing 
of the acquisition of the Divestment Business by a suitable purchaser . 
6. ASSESSMENT OF THE FINAL COMMITMENTS  
(402)  The Commission notes that the Final Commitments remove nearly the entire 
overlap between the Parties in the area of TPM products in the EE A. Only minor 
overlaps would remain  post-Transaction  in the Netherlands and France, where 
Pfizer sells its AdvilMed , Advil  Gel and/or Kamol  products . However, these 
limited overlaps do not raise serious doubts as to the compatibility of the 
Transaction with the internal market.353  
(403)  In addition, the  Commission considers that the Divestment Business is a viable 
and competitive  business . In particular, f rom a financial perspective, the 
Divestment Business has consistently been operating profitably  over the past 
three years.354  
(404)  The Commission also considers that the Divestment Business, a s per the Final 
Commitments, includes all the necessary assets, functions and personnel 
necessary for the manufacturing and supply of ThermaCare  products  by a 
suitab le purchaser .  
(405)  The Divestment Business will also largely be independent from the Parties post -
Transaction, as the transitional supply arrangements , which do not exceed a 
maximum period of [Time period] , aim at supporting  the Divestment Business in 
limited areas  only, and ensure  that no disruption in the supply of TPM  products 
occur s in the EEA.  
(406)  In addition, the Purchaser criteria included in the Final Commitments ensure that 
the purchaser has sufficient experience in the supply of OTC pharmaceutical 
products , as well as immediate access to a salesforce  in the relevant EEA 
countries . These criteria ensure the purchaser’s ability to readily and successfully 
continue to market ThermaCare  products , and to compete effectively, in 
particular against the Com bined CH Business .  
(407)  Finally, the viability of the Divestment Business, and in particular the 
ThermaCare  brand equity , is preserved  under the Final Commitments . Pfizer CH 
salesforce in [Geography]  will not offer GSK products during the (shortened) 
divestitu re period . This  ensures that ThermaCare  sales cannot be cannibalized by 
competing GSK products. In fact, the Final Commitments provide for financial 
incentives for Pfizer CH employees to increase the sales of ThermaCare , which is 
likely to make sales of th ese products more attractive to employees, 
                                                 
353  In both F rance and the Netherlands, Pfizer CH’s increment will remain small. In France, Pfizer 
CH’s AdvilMed  gel, Advil Gel  and Kamol  account for a combined value share of [0 -5]% in the 
topical pain management category (02E1) and [0 -5]% in the OTC 4 class 02E10 
(ointments/creams).  In the Netherlands, Advil Gel  accounts for a share of [0 -5]% in the topical 
pain management category (02E1) and [0 -5]% in the OTC 4 class 02E1O (ointments/creams).  
354  See M.9274 - Form RM Annex 7 - Turnover breakdown by country and P&L - 
CONFIDENTIAL.xlsx and M.9274 - Form RM Annex 8 - Albany PL (2016 -2019 YTD) - 
CONFIDENTIAL.xlsx.  
 
 
101 comparatively to the sales of other Pfizer CH OTC products. In addition, the 
possibility for the purchaser to interview and employ Pfizer CH sales personnel 
imply that these employees may also have a longer term i nterest in the promotion 
of ThermaCare  products. Th is combined set of features protects  the value of  the 
ThermaCare  brand and its competitive presence on the market over the course of 
the (shortened) divestiture period , and beyond .  
(408)  In view of the elements  discussed in this Section, the Commission concludes that 
the Final Commitments are suitable to remove the competition concerns 
identified in Section IV.3.1.2  with regards to the supply of TPM products in the 
EEA .   
VI. CONDITIONS  AND  OBLIGATIONS  
(409)  Under the first sentence of the second subparagraph of Article 6(2) of the Merger 
Regulation, the Commission may attach to its decision conditions and obligations 
intended to ensure that the undertakings concerned comply with the commitments 
they have entered vis -à-vis the Commission with a view to rendering the 
concentration compatible with the internal market  
(410)  The fulfilment of a measure that gives rise to the structural change of the market 
is a condition, whereas the implementing steps that are necessary to achiev e this 
result are generally obligations on the parties. Where a condition is not fulfilled, 
the Commission's decision declaring the concentration compatible with the 
internal market will not be, or no  longer  be, applicable. Where the undertakings 
concerned  commit a breach of an obligation, the Commission may revoke the 
clearance decision in accordance with Article 6(3) of the Merger Regulation. The 
undertakings concerned may also be subject to fines and periodic penalty 
payments under Articles 14(2) and 15( 1) of the Merger Regulation.  
(411)  In accordance with the basic distinction between conditions and obligations, 
Sections B, C,  and D of the Final Commitments, together with the Schedule and 
Annexes to the Schedule, as annexed to this Decision , constitute conditi ons 
attached to this Decision, as only through their full compliance can the structural 
changes in the relevant markets be achieved. The other commitments (set out in 
Sections E and F of the Final Commitments)  constitute obligations, as they 
concern the im plementing steps that are necessary to achieve the modifications 
sought in a manner compatible with the internal market.  
(412)  The full text of the Final Commitments , together with the Schedule and Annexes  
to the Schedule , is attached as the Annex to this Decisi on and forms an integral 
part of this Decision.  
VII. NON -CONTROLLING  MINORITY  SHAREHOLDING  
(413)  As consideration for the transfer of Pfizer CH to GSK , Pfizer will obtain a share 
of 32% in the Combined CH Business. Pfizer will acquire this minority share in 
the Combined CH Business because the Transaction is partly structured as an 
exchange deal. The Commission routinely reviews exchange offers resulting in a 
corollary acquisition of minority interests . In these case s, the Commission’s 
review  also entail s carrying out an assessment of the competitive interactions 
 
 
102 between the undertaking in which the minority interest is obtained  (in the present 
case, the Combined CH Business ), and the retained activities of the holder  of that 
interest (in the present case, Pfizer ).355  
(414)  Hence, within the framework of the merger control assessment of the 
Transaction, the Commission has considered whether the structural link created 
by the acquisition of that minority interest could weaken GSK and Pfizer's 
incentives to compete in the markets where the activities of the Combined CH 
Business (where both GSK and Pfizer will have an interest, post -Transaction) 
overlap with those of Pfizer ’s retained business.   
(415)  The overlaps between the activitie s of the Combined CH Business and of Pfizer’s 
retained business would give rise to the following affected markets :356 
a) Topical pain management – M2A (ATC  3) / 02E1 (OTC  3) in Belgium, 
Denmark, Finland, Greece, Italy, Luxembourg, and Portugal , where Pfizer 
will retain Feldene  (a piroxicam -based medicated gel). This product has 
very low market shares (between [0-5]% and [0-5]% in Belgium, Italy, 
Luxembourg, Portugal and Greece, and between [0-5]% and [0-5]% in 
Denmark and Finland). According to t he Notifying Party, t he rationale for 
Pfizer to keep the product is that the underlying brand is predominantly sold 
Rx.357  
b) Systemic pain management – N2B+N2C+M1A+G2X1+M5X+A3D  (ATC  
3) / 02A1+02A2+02C1+02E2+02B1+02G2+02H1 (OTC  3) in Sweden, 
where Pfizer will retain Artrox , which has a market share of less than [0-
5]%. According to the Notifying Party, t he rationale for Pfizer to keep the 
product is that it is marketed by an entity outside  of the scope of Pfizer CH 
and also sold Rx.  
c) Antifungals – D1A (ATC  3) / 06G3 (OTC  3) in Finland and Norway, where 
Pfizer will mainly retain Diflucan  and Trosyd  which has a market share of 
about [10-20]% in Finland and [10-20]% in Norway, and would overlap 
with the Combined CH Business’ Lamisil  and Trosyd . Similarly to (b), th e 
                                                 
355  See, e.g., Commission decision of 28 January 2015 in case M.7276 – GlaxoSmithKline/ Novartis 
Vaccines Business (Excl. Influenza) / Novartis Consumer Health  Business , paragraph 9.  
356  On the basis of market shares computed in value. The activities of the Combined CH Business and 
of Pfizer will also overlap in relation to few additional markets, but no affected market would 
arise under any plausible market defi nition. In all those instances, the combined market shares of 
the Combined CH Business and Pfizer on the relevant markets will remain well below [10 -20]%, 
with Pfizer having market shares well below [5 -10]% (with one exception, where the combined 
market sh are would amount to [10 -20]%, with an increment of [0 -5]%).  
357  For example, Feldene is sold Rx in Ireland and the United Kingdom. In these two Member States, 
an hypothetical affected markets could arise, as Group 3 in Ireland, and as Group 1 in the United  
Kingdom, based on an overall OTC + Rx topical analgesics (M2A). In Ireland, while the 
combined shares of the Combined CH Business and Pfizer would amount to [30 -40]%, Pfizer’s 
increment (with Feldene ) would be de minimis  ([0-5]%). Further GSK and Pfizer w ill continue to 
face competition from a broad range of competitors, including Phoenix Labs ([20 -30]%) with 
Etoflam  and Rohto Corp ([10 -20]%) with Deep Heat  and Deep Freeze . In the UK, GSK and 
Pfizer would have a combined share of [30 -40]%, with an incremen t from Feldene  of [5 -10]%. 
GSK and Pfizer will however continue to face competition from a broad range of competitors, 
including Teva ([10 -20]%) with Zacin  and Axsain , and Concordia ([10 -20]%) with Fenbid . 
 
 
103 Notifying Party submits that the rationale for Pfizer to keep the product is 
that it is marketed by an entity outside the scope of Pfizer CH.  Moreover, 
the Notifying Party claims that Lamisil and Trosyd  are in any event based 
on a different active ingred ient ( terbinafine and tioconazole respectively ).  
d) Laxatives – A6A  (ATC  3) / 03C6+03C5+03C1+03C2+03C9+03C4 (OTC  
3) in Finland (based on volume of sales only), where Pfizer will retain Vi-
Siblin , while the Combined CH will offer Pursennid Ex -Lax, which has a 
market share of less than [0-5]%.  
(416)  In relation to (a) and (b), the Commission notes that Pfizer’s retained products 
have low market shares and that the market investigation did not reveal that any 
of those products plays a significant role in  the relevant markets. Therefore, the 
Commission considers it unlikely that the acquisition of a minority stake by 
Pfizer in the Combined CH Business will weaken its incentives to compete in the 
relevant markets and that this could have any material detrim ental effects on the 
markets concerned.  
(417)  In relation to (c), the Notifying Party cl aimed  that th e Combined CH Business 
and Pfizer’s respective products are based on different active ingredients: Trosyd is 
an antifungal product relying on  tioconazole as an active ingredient, whereas Lamisil 
uses terbinafine hydrochloride. According to the Notifying Party, terbinafine /Lamisil 
is much more effective and requires a one day or week treatment, whereas 
tioconazole /Trosyd requires treatment of 2 -3 weeks. The Notify ing Party also added 
that, even though they are both topical products, Trosyd OTC is only available as a 
cream, whereas Lamisil is also sold in liquid, dusting powder and spray forms.  The 
Combined CH Business will have market share s of about [30-40]% in Finland 
and [20-30]% in Norway  at ATC 3 level , which mostly result from  the Combined 
CH Business’s  sales of products marketed under the brand Lamisil . Pfizer’s 
Trosyd  has a market  share of less than [0-5]%. The Commission notes that other 
strong compe titors will remain on the markets concerned post -Transaction. As 
regards Finland: Johnson & Johnson (with a market share of [10-20]%), Orion 
([10-20]%), and Bayer ( [5-10]%). As regards Norway: Bayer (with a market 
share of [40-50]%) and Orifarm ( [5-10]%). In both EEA Member States, there are 
competitors who would enjoy similar or larger market shares compared to those 
of Pfizer (notably, Johnson & Johnson and Orion in Finland, and Bayer in 
Norway), that would keep exerting competitive pressure on Pfizer  itself, as well 
as on the Combined CH Business. In addition, there is no indication that Diflucan  
and Lamisil  are close competitors as they are based on different active 
ingredients, have different galenic form , and are used for different indications. 
The market investigation did not produce evidence contradicting  this 
reasoning .358 Therefore, on the basis of the elements at its disposal, the 
Commission considers it unlikely that the acquisition of a minority stake by 
Pfizer in the Combined CH Business will weaken its incentives to compete in the 
relevant markets for antifungals and that this could have any material detrimental 
effects on the markets concerned.  
                                                 
358  Replies to Q1 – Questionnaire to pharmacies and  retailers, question 55; Replies to Q2 –
Questionnaire to wholesalers and buying groups, question 37 and Replies to Q3 – Questionnaire to 
competitors, question 72.  
 
 
104 (418)  In relation to (d), according to the Notifying Party, the limited overlap with 
Pursennid Ex -Lax will not affect Pfizer’s incentives to compete post -Transaction 
for the two following reasons. First, as Pursennid Ex -Lax has limited sales in 
Finland (namely, €[Limited sales]  according to IQVIA OTC -IMS and £[Limited 
sales] of wholesale sales from GSK to direct customers) , competing less 
aggressively would not be profitable for Pfizer. Second, Pursennid Ex -Lax and 
Vi-Siblin are  not close competitors. Vi-Siblin  is a fibre laxative, with active 
ingredient plantago  ovata , and sold in powders/granules, while Pursennid Ex -Lax 
is a contact laxative, with active ingredient sennosides A&B , and sold in coated 
tablets.359 The Commission observes that  Combined CH Business has indeed a 
limited share  (of less than [0-5]%) on the market. The Commission also notes that 
strong competitors will remain on the market post -Transaction including Mylan 
(with a market share of [20-30]%), Takeda ( [10-20]%) and Orion ( [10-20]%), and 
will continue to exert competitive pressure on Pfizer and the Combined CH 
Business . Furthermore, the ma rket investigation did not produce evidence 
contradict ing this reasoning. Therefore, on the basis of the elements at its 
disposal, the Commission considers it unlikely that the acquisition of a minority 
stake by Pfizer in the Combined CH Business will weak en its incentives to 
compete in the relevant markets for laxatives and that this could have any 
material detrimental effects on the markets concerned .  
(419)  Finally, the Commission notes that the activities of Pfizer and of the Combined 
CH Business would not overlap in the EEA as regards Pfizer’s retained switch 
products, that is to say, products that are likely to switch  from Rx  to OTC status 
in the EEA in the near future.  
(420)  In view of the above and the available evidence, the Commission concludes that 
the Transaction does not lead to serious doubts as to its compatibility with the 
internal market in relation to the acquisition by Pfizer of a non -controlling 
minority shareholding in the Combined CH Business.  
  
                                                 
359  In addition, f ibre laxatives work by absorbing liquid in the intestines and swelling to fo rm a soft, 
bulky stool. The stool then stimulates the bowel in order to overcome constipation symptoms. By 
contrast, contact laxatives stimulate the intestinal membranes and the peristalsis process, causing a 
bowel movement.  
 
 
105 VIII.  CONCLUSION  
(421)  For the above reasons, the Commissi on has decided not to oppose the notified 
operation as modified by the Final Commitments  and to declare it compatible with 
the internal market and with the functioning of the EEA Agreement, subject to full 
compliance with the conditions set out in Section s B, C and D  of the Final 
Commitments , together with the Schedule and Annexes to the Schedule, as  annexed 
to the present decision and with the obligations contained in the other sections of said 
Final Commitments . This decision is adopted in application of Article 6(1)(b) in 
conjunction with Article 6(2) of the Merger Regulation  and Article 57 of the EEA 
Agreement .  
 
For the Commission  
 
(Signed)  
Margrethe VESTAGER  
Member of the Commission  
 
 
  
 
 
Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,  BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu . Case COMP/M.9274 – GlaxoSmithKline / Pfizer Consumer Health Business  
 
COMMITMENTS TO THE EUROPEAN COMMISSION RELATING TO 
THERMACARE TOPICAL PAIN MANAGEMENT BUSINESS  
 
Pursuant to Article 6( 2) of Council Regulation (EC) No 139/2004 (the “ Merger Regulation ”), 
GlaxoSmithKline plc (“ GSK ”) (the “ Notifying Party ”) and Pfizer Inc. (“ Pfizer ”) hereby enter into 
the following Commitments (the “ Commitments ”) vis -à-vis the European Commission (the 
“Comm ission ”) with a view to rendering the proposed combination by GSK and Pfizer  of GSK’s 
consumer healthcare business (“ GSK CH ”) and Pfizer’s consumer healthcare business (“ Pfizer 
CH”) into a new venture under the sole control of GSK (the “ Combined CH Busines s”) (the 
“Concentration ”), compatible with the internal market and the functioning of the EEA Agreement.   
 
This text shall be interpreted in light of the Commission’s decision pursuant to Article 6(1)(b) of the 
Merger Regulation to declare the Concentration compatible with the internal market and the 
functioning of the EEA Agreement (the “ Decision ”), in the general framework of European Union 
law, in particular in light of the Merger Regulation, and by reference to  the Commission Notice on 
remed ies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation 
(EC) No 802/2004 (the “ Remedies Notice ”). 
 
Section A.  Definitions  
 
1. For the purpose of the Commitments, the following terms shall have the following meaning:  
 
Affiliate d Undertakings : undertakings controlled by GSK or Pfizer, as the case may be, whereby 
the notion of control shall be interpreted pursuant to Article 3 of the Merger Regulation and in 
light of the Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 
139/2004 on the control of concentrations between undertakings (the " Consolidated Jurisdictional 
Notice ").  
 
Assets: the assets that contribute to the current operation or are necessary to ensure the viability 
and competitiveness of the Divestment Business as indicated in Section B, and described more in 
detail in the Schedule.   
 
Cluj Romania Site : Pfizer’s production and packaging facility located at Calea Turzii 178C, Cluj -
Napoca 400495, Romania.  
 
Closing : the transfer of the legal tit le to the Divestment Business to the Purchaser.  
 
Closing Period : the period of [Time period]  from the approval of the Purchaser and the terms of 
sale by the Commission.  
 
 
2 
 Confidential Information : any business secrets, know -how, commercial information, or a ny 
other information of a proprietary nature that is not in the public domain.  
 
Conflict of Interest : any conflict of interest that impairs the Trustee's objectivity and 
independence in discharging its duties under the Commitments.  
 
Divestment Business : the topical pain management business carried on by Pfizer CH under the 
ThermaCare  brand globally, as further defined in Section B and in the Schedule, which the Parties 
commit to divest.  
 
Divestiture Trustee : one or more natural or legal person(s) who is/are approved by the 
Commission and appointed by GSK and who has/have received from GSK the exclusive Trustee 
Mandate to sell the Divestment Business to a Purchaser at no minimum price.  
  
Effective Date : the date of adoption of the Decision.  
 
First Dive stiture Period : the period of [Time period]  from the Effective Date.  
 
GSK : GlaxoSmithKline plc, incorporated under the laws of England and Wales, with its registered 
office at 980 Great West Road, Brentford, TW8 9GS, United Kingdom.  
 
Hold Separate Manager : the person appointed by the Parties for the Divestment Business to 
manage the day -to-day business under the supervision of the Monitoring Trustee.  
 
Key Personnel : all personnel necessary to maintain the viability and competitiveness of the 
Divestment Business, as listed in the Schedule to these Commitments, including the Hold Separate 
Manager.  
 
Medical Device Design Center : The [Size]  space dedicated to medical d evice R&D capabilities 
at Pfizer CH’s R&D hub in Richmond, Virginia, United States.  
 
Monitoring Trustee : one or more natural or legal person(s) who is/are approved by the 
Commission and appointed by GSK, and who has/have the duty to monitor the Parties’ 
compliance with the conditions and obligations attached to the Decision.  
 
Parties:  GSK and Pfizer.  
 
Personnel : all staff currently working for the Divestment Business who devote  [50-60]% or more 
of their work to ThermaCare . 
 
Pfizer : Pfizer Inc., incorporated under the laws of Delaware, with its registered office at 235 East 
42nd Street, New York, NY 10017, United States.  
 
Purchaser : the entity approved by the Commission as acquirer of the Divestment Business in 
accordance with the criteria set out  in Section D.  
 
Purchaser Criteria : the criteria laid down in paragraph 17 of these Commitments that the 
Purchaser must fulfil in order to be approv ed by the Commission.  
 
3 
  
Schedule : the schedule to these Commitments describing more in detail the Divestment Business.  
 
Trustee(s) : the Monitoring Trustee and/or the Divestiture Trustee as the case may be.   
 
Trustee Divestiture Period : the period of [Time period] from the end of the First Divestiture 
Period.  
 
Section B.  The commitment to divest and the Divestment Business  
 
 Commitment to divest  
 
2. In order to maintain effective competition, the Parties commit to divest, or procure the divestiture 
of the Divestment Business by the end of the Trustee Divestiture Period as a going concern to a 
purchaser and on terms of sale approved by the Commission i n accordance with the procedure 
described in paragraph 18 of these Commitments. To carry out the divestiture, GSK commits to 
find a purchaser and to e nter into a final binding sale and purchase agreement for the sale of the 
Divestment Business within the First Divestiture Period. If GSK has not entered into such an 
agreement at the end of the First Divestiture Period, GSK shall grant the Divestiture Tru stee an 
exclusive mandate to sell the Divestment Business in accordance with the procedure described in 
paragraph 30 in the Trustee Divestiture Perio d.  
 
3. The Parties shall be deemed to have complied with this commitment if:  
 
 (a) by the end of the Trustee Divestiture Period, GSK or the Divestiture Trustee has 
entered into a final binding sale and purchase agreement and the Commission 
approves the propo sed purchaser and the terms of sale as being consistent with the 
Commitments in accordance with the procedure described in paragraph 18; and  
 
 (b) the Closing of the sale of the Divestment Business to the Purchaser takes place within 
the Closing Period.  
 
4. In order to maintain the structural effect of the Commitments, GSK shall, for a period of 10 years 
after Closing, not acquire, whether directly or indirectly, the possibility of exercising influence (as 
defined in paragraph 43 of the Remedies Notice, footn ote 3) over the whole or part of the 
Divestment Business, unless, following the submission of a reasoned request from GSK showing 
good cause and accompanied by a report from the Monitoring Trustee (as provided in paragraph 
44 of these Commitments), the Commission finds that the structure of the market has changed to 
such an extent that the absence of influence over the Divestment Business is no longer necessary 
to render the proposed concentration compatible with the internal market.  
 
 Structure and definition of the Divestment Business  
 
5. The Divestment Business consists of the topical pain management business carried on by Pfizer 
CH under the ThermaCare  brand globally . The legal and functional structure of the Divestment 
Busine ss as operated to date is described in the Schedule. The Divestment Business, described in 
 
4 
 more detail in the Schedule, includes all assets and staff that contribute to the current operation or 
are necessary to ensure the viability and competitiveness of t he Divestment Business, in particular:  
 
 (a) all tangible and intangible assets relating to the ThermaCare business, including 
intellectual property and know -how, a dedicated production site located in Albany, 
Georgia, US, as well as R&D  assets ; 
  
 (b) all licences, permits and authorisations issued by any governmental organisation for 
the benefit of the Divestment Business;  
 
 (c) all contracts, leases, commitments and customer orders of the Divestment Business; 
all customer, credit and other records of th e Divestment Business; and  
 
 (d) the Personnel.  
 
6. In addition, at the option of Purchaser, the Divestment Business includes the benefit, for a 
transitional period of [Time period]  after Closing of certain transitional service agreements (with 
the possibility to extend for further periods set out in the Schedule, at the Purchaser’s request and 
subject to the opinion of the Monitoring Trustee)  including, but not limited to, sourcing, transport, 
logistics, secondary packaging, and distribution, as det ailed in the Schedule. Strict firewall 
procedures will be adopted so as to ensure that any competitively sensitive information related to, 
or arising from such transitional arrangements (for example, product roadmaps) will not be shared 
with, or passed on to, anyone outside the respective party providing the transitional products 
and/or services.  
 
7. For the avoidance of doubt, the Divestment Business shall not include:  
 
(a) the space occupied by Medical Device Design Center in Richmond, Virginia, US, 
 and all equipment, raw materials and records housed in that space, the  use of which 
 are less than [50-60]% devoted to the Divestment Business;  
 
(b) the Cluj, Romania Site;  
 
(c) the Robax  brand or trademark (save for a transitional non -exclusive trademark lice nce 
 as detailed in the Schedule);  
 
(d) the “GSK” or “Pfizer” company name, marks, or logos in any form (with the 
 exception of the transitional non -exclusive license to the Pfizer trademark as referred 
 to in paragraph 2 1(r) of the Schedule);  
 
(e) intellectual property rights which do not contribute to the operation of the 
 Divestment Business;  
 
(f) shared functions and personnel, as outlined in the Sc hedule, provided however, that  
 (i) in respect of the [Number]  personnel from the Combined CH Business’ functional 
 group “ [Personnel Group] ” and (ii) in respect of other personnel who are 
 involved on the Effective Date in the sale of ThermaCare  in the c ountries 
[Geography] , the Parties commit to offer the Purchaser the opportunity on request for 
 
5 
 [Time period] , to interview and hire such personnel, provided that the Parties shall act 
in good faith in evaluating any potential role changes or redundancies f or such 
personnel, and shall not carry out any such role changes or redundancies for the 
purpose of frustrating this commitment, without prejudice to the application of the 
other provisions of these Commitments including paragraph 10 below, provided 
furthe r that the Purchaser may hire at most [50-60]% of the personnel  within category 
(ii) above;  
 
(g) books and records required to be retained pursuant to any statute, rule, regulation or 
 ordinance, provided that the Parties will provide copies of such docume nts necessary 
 for the Divestment Business to the Purchaser, upon request; and  
 
(h) general books of account and books of original entry that comprise the Parties’ or any 
 of their Affiliated Undertakings’ permanent accounting or tax records, provided that 
 the Parties will provide copies of such documents necessary for the Divestment 
 Business to the Purchaser, upon request.  
 
 Section C.   Related commitments  
 
 Preservation of viability, marketability and competitiveness  
 
8. From the Effective Date until Closing, the Parties shall preserve or procure the preservation of the 
economic viability, marketability and competitiveness of the Divestment Business, in accordance 
with good business practice, and shall minimise as far as possible any risk of loss of competitive 
potential of the Divestment Business. In particular the Parties undertake:  
(a) not to carry out any action that might have a significant adverse impact on the value, 
management or competitiveness of the Divestment Business or that might alter the 
nature and scope of activity, or the industrial or commercial strategy or the investment 
policy of the Divestment Business;  
(b) to make available, or procure to make available, sufficient resources for the 
development of the Divestment Business, on the basis and continuation of the existing 
business plans. To that end, the Parties commit to take all reasonable steps, or procure 
that all reasonable steps are being taken , to ensure that the Divestment Business 
continues to receive all the necessary support from the Parties it needs to allow it to 
meet the existing business plans.  In particular, the Parties will ensure that, in addition 
to assets, personnel and other reso urces being held separate, the Divestment Business 
will have access to shared assets, personnel and resources on a transitional basis in 
line with past practice, that is on the same level as before the Hold Separate period, 
and as needed to maintain the vi ability and competitiveness of the Divestment 
Business; and  
(c) to take all reasonable steps, or procure that all reasonable steps are being taken, 
including appropriate incentive schemes (based on industry practice), to encourage all 
Key Personnel to rema in with the Divestment Business, and not to solicit or move any 
Personnel to the Parties’ remaining business. Where, nevertheless, individual 
members of the Key Personnel exceptionally leave the Divestment Business, GSK 
shall provide a reasoned proposal to  replace the person or persons concerned to the 
 
6 
 Commission and the Monitoring Trustee. GSK must be able to demonstrate to the 
Commission that the replacement is well suited to carry out the functions exercised by 
those individual members of the Key Personn el. The replacement shall take place 
under the supervision of the Monitoring Trustee, who shall report to the Commission.  
 
 Hold -separate obligations  
 
9. Subject to paragraph 10 below, the Parties commit, from the Effective Date until Closing, to keep 
the Divestment Business separate from the businesses retained by the Parties and to ensure that 
unless explicitly permitted under these Commitments (includi ng as necessary to provide 
transitional services to the Divestment Business covering shared functions during the hold 
separate period): (i) management and staff of the business(es) retained by the Parties have no 
involvement in the Divestment Business; (ii ) the Key Personnel and Personnel of the Divestment 
Business have no involvement in any business retained by the Parties and do not report to any 
individual outside the Divestment Business.  
 
10. Until Closing, the Parties commit not to integrate the Pfizer CH operations (including all 
employees) with any operations of GSK (including all employees) in [Geography] (provided for 
the avoidance of doubt, this shall not preclude such Pfizer CH employees carrying out regional or 
global functions). The Parties further commit to create specific incentive schemes, in accordance 
with the principles set out in Annex 10, for all sales personnel with activities relating to the 
Divestment Business in [Geography]  such that these personnel have greater incentives (in terms of 
remuneration) in respect of their activities relating to the Divestment Business than under existing 
incentive schemes. The Parties further commit not to reduce the total amount of employee tim e 
currently dedicated solely to the Divestment Business, without prejudice to paragraph 11 below.  
 
11. Until Closing, the Parties shall assist the Hold Separate Manager and the Monitoring Trustee in 
ensuring that the Divestment Business is managed as a distinct and saleable entity separate from 
the business(es) which the Parties are retaining. Immediately a fter the adoption of the Decision, 
the Parties shall appoint a Hold Separate Manager. The Hold Separate Manager, who shall be part 
of the Key Personnel, shall manage the Divestment Business independently and in the best interest 
of the business with a view  to ensuring its continued economic viability, marketability and 
competitiveness and its independence from the businesses retained by the Parties.  In addition, the 
Parties commit that the Hold Separate Manager will have the appropriate position and author ity to 
direct the use of the shared resources and assets made available to the Divestment Business 
pursuant to paragraph 8(b), and instruct personnel  that are shared with the Parties in line with past 
practice and as needed to maintain the viability and competitiveness of the Divestment Business.  
The Hold Separate Manager may request additional resources reasonably necessary to meet the 
existing busin ess plans.  The Parties shall make available such additional resources.  To the extent 
the Parties disagree with the need for these additional resources, the Monitoring Trustee shall 
assess and have the final authority to determine whether the additional r esources requested are 
reasonably necessary.  To ensure the continuing viability and competitiveness of the Divestment 
Business, the incentive scheme for the Hold Separate Manager will be dependent upon the 
performance of the Divestment Business throughout  the Hold Separate period.  The Hold Separate 
Manager shall closely cooperate with and report to the Monitoring Trustee and, if applicable, the 
Divestiture Trustee. Any replacement of the Hold Separate Manager shall be subject to the 
procedure laid down in  paragraph 8(c) of these Commitments. The Commission may, after having 
heard GSK, require GSK to replace the Hold Separate Manager.  
 
7 
  
 Ring -fencing  
 
12. The Parties shall implement, or procure to implement, all necessary measures to ensure that they 
do not, after the Effective Date, obtain any Confidential Information relating to the Divestment 
Business, except as is necessary to ensure the viability of th e Divestment Business (including as is 
necessary to provide transitional services to the Divestment Business). In particular, the 
participation of the Divestment Business in any central information technology network shall be 
severed to the extent possible , without compromising the viability of the Divestment Business. 
The Parties may obtain or keep information relating to the Divestment Business which is 
reasonably necessary for the divestiture of the Divestment Business or the disclosure of which to 
the P arties are required by law.  
 
 Non-solicitation clause  
 
13. The Parties undertake, subject to customary limitations, not to solicit, and to procure that 
Affiliated Undertakings do not solicit, the Key Personnel transferred with the Divestment Business 
for a period of [Time period]  after Closing.  
 
 Due diligence  
 
14. In order to enable potential purchasers to carry out a reasonable due diligence of the Divestment 
Business, GSK shall, subject to customary confidentiality assurances and dependent on the stage 
of the divestiture process:   
(a) provide to potential purchas ers sufficient information as regards the Divestment 
Business; and  
(b)  provide to potential purchasers sufficient information relating to the Personnel and 
allow them reasonable access to the Personnel.  
 
 Reporting  
 
15. GSK shall submit written reports in English on potential purchasers of the Divestment Business 
and developments in the negotiations with such potential purchasers to the Commission and the 
Monitoring Trustee no later than 10 days after the end of every month following the Effective 
Date (or otherwise at the Commission’s request). GSK shall submit a list of all potential 
purchasers having expressed interest in acquiring the Divestment Business to the Commission at 
each and every stage of the divestiture process, as well as a copy of all the of fers made by 
potential purchasers within five days of their receipt.  
 
16. GSK shall inform the Commission and the Monitoring Trustee on the preparation of the data room 
documentation and the due diligence procedure and shall submit a copy of any information 
memorandum to the Commission and the Monitoring Trustee before sending the memorandum out 
to potential purchasers.  
  
 
8 
 Section D.  The Purchaser  
 
17. In order to be approved by the Commission, the Purchaser must fulfil the following criteria:  
 
(a) The Purchaser shall be independent of and unconnected to GSK and Pfizer and their 
Affiliated Undertakings (this being assessed having regard to the situation following the 
divestiture);  
(b) The Purchaser shall have experience in the marketing, promotion and s upply of a 
portfolio of consumer healthcare products in the EEA (including but not necessarily 
limited to OTC pharmaceutical products);  and 
(c) The Purchaser shall have an established presence in and/or existing third -party access to 
the distribution channels typically used in the distribution of consumer healthcare 
products (including in particular pharmacies and where relevant mass retail) in each of 
the EEA markets in which the Divestment Business is active ;  
(d) The Purchaser shall have experience in working wi th authorities and competent bodies in 
the EEA in obtaining necessary regulatory approvals and authorisations for 
commercialisation;  
(e) The Purchaser shall have the financial resources, proven expertise and incentive to 
maintain and develop the Divestment Bu siness as a viable and active competitive force in 
competition with the Parties and other competitors, including the ability to innovate; and  
(f) The acquisition of the Divestment Business by the Purchaser must neither be likely to 
create, in light of the info rmation available to the Commission, prima facie competition 
concerns nor give rise to a risk that the implementation of the Commitments will be 
delayed. In particular, the Purchaser must reasonably be expected to obtain all necessary 
approvals from the re levant regulatory authorities for the acquisition of the Divestment 
Business.  
18. The final binding sale and purchase agreement (as well as ancillary agreements) relating to the 
divestment of the Divestment Business shall be conditional on the Commission’s app roval. When 
GSK has reached an agreement with a purchaser, it shall submit a fully documented and reasoned 
proposal, including a copy of the final agreement(s), within one week to the Commission and the 
Monitoring Trustee. GSK must be able to demonstrate t o the Commission that the purchaser fulfils 
the Purchaser Criteria and that the Divestment Business is being sold in a manner consistent with 
the Commission's Decision and the Commitments. For the approval, the Commission shall verify 
that the purchaser fu lfils the Purchaser Criteria and that the Divestment Business is being sold in a 
manner consistent with the Commitments including their objective to bring about a lasting 
structural change in the market. The Commission may approve the sale of the Divestmen t 
Business without one or more Assets or parts of the Personnel, or by substituting one or more 
Assets or parts of the Personnel with one or more different assets or different personnel, if this 
does not affect the viability and competitiveness of the Dive stment Business after the sale, taking 
account of the proposed purchaser.  
 
 
9 
 Section E.  Trustee  
 
 I. Appointment procedure  
 
19. GSK shall appoint a Monitoring Trustee to carry out the functions specified in these Commitments 
for a Monitoring Trustee. GSK commits not to close the Concentration before the appointment of 
a Monitoring Trustee.  
 
20. If GSK has not entered into a binding sa le and purchase agreement regarding the Divestment 
Business [Time period]  before the end of the First Divestiture Period or if the Commission has 
rejected a purchaser proposed by GSK at that time or thereafter, GSK shall appoint a Divestiture 
Trustee. The appointment of the Divestiture Trustee shall take effect upon the commencement of 
the Trustee Divestiture Period.  
 
21. The Trustee shall:  
(i) at the time of appointment, be independent of GSK and Pfizer and their Affiliated 
Undertakings;  
(ii) possess the ne cessary qualifications to carry out its mandate, for example have sufficient 
relevant experience as an investment banker or consultant or auditor; and  
(iii) neither have nor become exposed to a Conflict of Interest.  
 
22. The Trustee shall be remunerated by G SK in a way that does not impede the independent and 
effective fulfilment of its mandate. In particular, where the remuneration package of a Divestiture 
Trustee includes a success premium linked to the final sale value of the Divestment Business, such 
success premium may only be earned if the divestiture takes place within the Trustee Divestiture 
Period.  
 
  Proposal by GSK  
 
23. No later than [Time period]  after the Effective Date, GSK shall submit the name or names of one 
or more natural or legal persons whom GSK proposes to appoint as the Monitoring Trustee to the 
Commission for approval. No later than [Time period] before the end of the First Divestiture  
Period or on request by the Commission, GSK shall submit a list of one or more persons whom 
GSK proposes to appoint as Divestiture Trustee to the Commission for approval. The proposal 
shall contain sufficient information for the Commission to verify that the person or persons 
proposed as Trustee fulfil the requirements set out in paragraph 21 and shall include:  
 
(a) the full terms of the proposed mand ate, which shall include all provisions necessary to 
enable the Trustee to fulfil its duties under these Commitments;  
 
(b) the outline of a work plan which describes how the Trustee intends to carry out its 
assigned tasks; and  
 
(c)  an indication whether the proposed Trustee is to act as both Monitoring Trustee and 
Divestiture Trustee or whether different trustees are proposed for the two functions.  
 
 
10 
   Approval or rejection by the Commission  
 
24. The Commission shall have the discretion to approve or reject the proposed Trustee(s)  and to 
approve the proposed mandate subject to any modifications it deems necessary for the Trustee to 
fulfil its obligations. If only one name is approved, GSK  shall app oint or cause to be appointed the 
person or persons concerned as Trustee, in accordance with the mandate approved by the 
Commission. If more than one name is approved, GSK  shall be free to choose the Trustee to be 
appointed from among the names approved. T he Trustee shall be appointed within one week of the 
Commission’s approval, in accordance with the mandate approved by the Commission.  
 
  New proposal by GSK  
 
25. If all the proposed Trustees are rejected, GSK  shall submit the names of at least two more natura l 
or legal persons within one week of being informed of the rejection, in accordance with 
paragraphs 19 and 24 of these Commitments.  
 
  Trustee nominated by the Commission  
 
26. If all further proposed Trustees are rejected by the Commission, the Commission shall nominate a 
Trustee, whom GSK  shall appoint , or cause to be appointed, in accordance with a trustee mandate 
approved by the Commission.  
 
 II. Functions of the Trustee  
 
27. The Trustee shall assume its specified duties and obligations in order to ensure compliance with 
the Commitments. The Commission may, on its own initiative or at the request of the Trustee or 
GSK, give any orders or instructions to the Trustee in order to ensure compliance with the 
conditions and obligations attached to the Decision.   
 
  Duties and obligations of the Monitoring Tru stee 
 
28. The Monitoring Trustee shall:  
 
(i)        propose in its first report to the Commission a detailed work plan describing how it 
intends to monitor compliance with the obligations and conditions attached to the 
Decision;  
 
(ii) oversee, in close co -operation with the Hold Separate Manager, the on -going management 
of the Divestment Business with a view to ensuring its continued economic viability, 
marketability and competitiveness and monitor compliance by the Parties with the 
conditions and obligations attached to the Decision. To that end the Monitoring Trustee 
shall:  
 
  (a) monitor the preservation of the economic viability, marketability and 
competitiveness of the Divestment Business, and the keeping separate of the 
Divestment  Business from the business retained by the Parties, in accordance with 
paragraphs 8 – 10 of these Commitments;  
 
 
11 
   (b) supervise the management of the Divestment Business as a distinct and saleable 
entity, in accordance with paragraph 11 of these Commitments;  
 
  (c) with respect to Confidential Information:  
 
 determine all necessary measures to ensure that the Parties do not after the 
Effective Date obtain any Confidential Infor mation relating to the 
Divestment Business,  
 in particular strive for the severing of the Divestment Business’ participation 
in a central information technology network to the extent possible, without 
compromising the viability of the Divestment Business,  
 make sure that any Confidential Information relating to the Divestment 
Business obtained by the Parties before the Effective Date is eliminated and 
will not be used by the Parties and  
 decide whether such information may be disclosed to or kept by the Parties as 
the disclosure is reasonably necessary to allow the Parties to carry out the 
divestiture or as the disclosure is required by law;  
 
  (d) monitor the splitting of assets and the allocation of Personnel between the 
Divestment Business and the Parties or Affiliated Undertakings;   
 
(iii) propose to the Parties such measures as the Monitoring Trustee considers necessary to 
ensure the Parties’ compliance with the conditions and obligations a ttached to the 
Decision, in particular the maintenance of the full economic viability, marketability or 
competitiveness of the Divestment Business, the holding separate of the Divestment 
Business and the non -disclosure of competitively sensitive informatio n; 
 
(iv) review and assess potential purchasers as well as the progress of the divestiture process 
and verify that, dependent on the stage of the divestiture process:  
 
  (a) potential purchasers receive sufficient and correct information relating to the 
Divestm ent Business and the Personnel in particular by reviewing, if available, the 
data room documentation, the information memorandum and the due diligence 
process, and  
 
  (b) potential purchasers are granted reasonable access to the Personnel;  
 
(v) act as a conta ct point for any requests by third parties, in particular potential purchasers, in 
relation to the Commitments;  
 
(vi) provide to the Commission, sending GSK a non -confidential copy at the same time, a 
written report within 15 days after the end of every month that shall cover the operation 
and management of the Divestment Business as well as the splitting of assets and th e 
allocation of Personnel so that the Commission can assess whether the business is held in 
a manner consistent with the Commitments and the progress of the divestiture process as 
well as potential purchasers;  
 
 
12 
 (vii) promptly report in writing to the Commission , sending GSK a non -confidential copy at the 
same time, if it concludes on reasonable grounds that GSK is failing to comply with these 
Commitments;  
 
(viii) within three working days after receipt of the documented proposal referred to in 
paragraph 18 of these Commitments, submit to the Commission, sending GSK a non -
confidential copy at the same time, a reasoned opinion as to the suitability and 
independence of the proposed purchaser and the viability of the Divestment Business after 
the Sale and as to  whether the Divestment Business is sold in a manner consistent with the 
conditions and obligations attached to the Decision, in particular, if relevant, whether the 
Sale of the Divestment Business without one or more Assets or not all of the Personnel 
affects the viability of the Divestment Business after the sale, taking account of the 
proposed purchaser; and  
 
(ix) assume the other functions assigned to the Monitoring Trustee under the conditions and 
obligations attached to the Decision.  
 
29. If the Monitoring and  Divestiture Trustee are not the same legal or natural persons, the Monitoring 
Trustee and the Divestiture Trustee shall cooperate closely with each other during and for the 
purpose of the preparation of the Trustee Divestiture Period in order to facilitat e each other's tasks.  
 
  Duties and obligations of the Divestiture Trustee  
 
30. Within the Trustee Divestiture Period, the Divestiture Trustee shall sell at no minimum price the 
Divestment Business to a purchaser, provided that the Commission has approved both the 
purchaser and the final binding sale and purchase agreement (and ancill ary agreements) as in line 
with the Commission's Decision and the Commitments in accordance with paragraphs 17 and 18 
of these Commitments. The Divestiture Trustee shall include in the sale and purchase agreement 
(as well as in any ancillary agreements) such terms and conditions as it considers ap propriate for 
an expedient sale in the Trustee Divestiture Period. In particular, the Divestiture Trustee may 
include in the sale and purchase agreement such customary representations and warranties and 
indemnities as are reasonably required to effect the sale. The Divestiture Trustee shall protect the 
legitimate financial interests of GSK, subject to the Notifying Party’s unconditional obligation to 
divest at no minimum price in the Trustee Divestiture Period.  
 
31. In the Trustee Divestiture Period (or otherw ise at the Commission’s request), the Divestiture 
Trustee shall provide the Commission with a comprehensive monthly report written in English on 
the progress of the divestiture process. Such reports shall be submitted within 15 days after the end 
of every month with a simultaneous copy to the Monitoring Trustee and a non -confidential  copy to 
GSK . 
 
 III. Duties and obligations of the Parties  
 
32.  The Parties shall provide and shall cause its advisors to provide the Trustee with all such co -
operation, assistance and information as the Trustee may reasonably require to perform its tasks. 
The Trustee shall have full and complete access to any of the Parties or the Divestment Business’ 
books, records, documents, management or other personnel, facilities, sites and technical 
information necessary for fulfilling its duties under the Commitments and the Parties and the 
 
13 
 Divestment Business shall provide th e Trustee upon request with copies of any document. GSK 
and the Divestment Business shall make available to the Trustee one or more offices on their 
premises and shall be available for meetings in order to provide the Trustee with all information 
necessary  for the performance of its tasks.  
 
33. The Parties shall provide the Monitoring Trustee with all managerial and administrative support 
that it may reasonably request on behalf of the management of the Divestment Business. This shall 
include all administrative  support functions relating to the Divestment Business which are 
currently carried out at headquarters level. The Parties shall provide and shall cause its advisors to 
provide the Monitoring Trustee, on request, with the information submitted to potential 
purchasers, in particular give the Monitoring Trustee access to the data room documentation and 
all other information granted to potential purchasers in the due diligence procedure. GSK shall 
inform the Monitoring Trustee on possible purchasers, submit lis ts of potential purchasers at each 
stage of the selection process, including the offers made by potential purchasers at those stages, 
and keep the Monitoring Trustee informed of all developments in the divestiture process.  
 
34. GSK shall grant or procure GSK’ s Affiliated Undertakings to grant comprehensive powers of 
attorney, duly executed, to the Divestiture Trustee to effect the sale (including ancillary 
agreements), the Closing and all actions and declarations which the Divestiture Trustee considers 
necessa ry or appropriate to achieve the sale and the Closing, including the appointment of advisors 
to assist with the sale process. Upon request of the Divestiture Trustee, GSK shall cause the 
documents required for effecting the sale and the Closing to be duly executed.  
 
35. GSK shall indemnify the Trustee and its employees and agents (each an “ Indemnified Party ”) and 
hold each Indemnified Party harmless against, and hereby agrees that an Indemnified Party shall 
have no liability to GSK for, any liabilities arising out of the performance of the Trustee’s duties 
under the Commitments, except to the extent that such liabilities result from the wilful default, 
recklessness, gross negligence or bad faith of the Trustee, its employees, agents or advisors.  
 
36. At the expense of GSK, the Trustee may appoint advisors (in particular for corporate finance or 
legal advice), subject to GSK’s approval (this approval not to be unreasonably withheld or 
delayed) if the Trustee considers the appointment of such advisors ne cessary or appropriate for the 
performance of its duties and obligations under the Mandate, provided that any fees and other 
expenses incurred by the Trustee are reasonable. Should GSK refuse to approve the advisors 
proposed by the Trustee the Commission m ay approve the appointment of such advisors instead, 
after having heard GSK. Only the Trustee shall be entitled to issue instructions to the advisors. 
Paragraph 35 of these Commitments shall apply mutatis mutandis . In the Trustee Divestiture 
Period, the Divestiture Trustee may use advisors who served GSK during the Divestiture Period if 
the Divestiture Trustee considers this in the best interest of an ex pedient sale.  
 
37. The Parties agree that the Commission may share Confidential Information proprietary to the 
Parties with the Trustee. The Trustee shall not disclose such information and the principles 
contained in Article 17 (1) and (2) of the Merger Regula tion apply mutatis mutandis .  
 
38. GSK agrees that the contact details of the Monitoring Trustee are published on the website of the 
Commission's Directorate -General for Competition and they shall inform interested third parties, 
in particular any potential pu rchasers, of the identity and the tasks of the Monitoring Trustee.  
 
 
14 
 39. For a period of 10 years from the Effective Date the Commission may request all information 
from the Parties that is reasonably necessary to monitor the effective implementation of these 
Commitments.  
 
 IV. Replacement, discharge and reappointment of the Trustee  
 
40. If the Trustee ceases to perform its functions under the Commitments or for any other good cause, 
including the exposure of the Trustee to a Conflict of Interest:  
 
(a) the Commission may, after hearing the Trustee and GSK, require GSK to replace the Trustee; 
or  
(b) GSK may, with the prior approval of the Commission, replace the Trustee.  
41. If the Trustee is removed according to paragraph 40 of these Commitments, the Trustee may be 
required to continue in its function until a new Trustee is in place to whom the Trustee has 
effected a full hand over of all relevant inform ation. The new Trustee shall be appointed in 
accordance with the procedure referred to in paragraphs 19-26 of these Commitments.  
 
42. Unless removed according to paragraph 40 of these Commitments , the Trustee shall cease to act as 
Trustee only after the Commission has discharged it from its duties after all the Commitments 
with which the Trustee has been entrusted have been implemented. However, the Commission 
may at any time require the reappoint ment of the Monitoring Trustee if it subsequently appears 
that the relevant remedies might not have been fully and properly implemented.  
 
Section F.  The review clause  
 
43. The Commission may extend  the time periods foreseen in the Commitments  in response to a 
request from GSK or, in appropriate cases, on its own initiative. Where GSK requests an extension 
of a time period, it shall submit a reasoned request to the Commission no later than two weeks 
before the expiry of that period, showing goo d cause . This request shall be accompanied by a 
report from the Monitoring Trustee, who shall, at the same time send a non -confidential copy of 
the report to the Notifying Party. Only in exceptional circumstances shall GSK be entitled to 
request an extensi on within the last two weeks of any period.  
 
44. The Commission may further, in response to a reasoned request from the Notifying Party showing 
good cause waive, modify or substitute, in exceptional circumstances, one or more of the 
undertakings in these Commitments. This request shall be accompanied by a report from the 
Monitoring Trustee, who shall, at the same time send a non -confidential copy of the report to the 
Notifying Party. The request shall not have the effect of suspending the application of th e 
undertaking and, in particular, of suspending the expiry of any time period in which the 
undertaking has to be complied with.  
 
Section G.  Entry into force  
 
45. The Commitments shall take effect upon the date of adoption of the Decision.  
 
  
 
15 
 SCHEDULE  
 
1. The Divestment Business consists of the topical pain management business carried on 
by Pfizer CH under the ThermaCare  brand globally.  
 
2. In accordance with paragraph 5 of these Commitments, the Divestment Business 
includes:  
 
(a) The entire product range sold under the ThermaCare  brand globally.  The ThermaCare 
range includes topical heat wraps, which Pfizer CH manufactures in -house at the Albany 
site, as well as two topical gels/creams manufactured by third parties under contract: 
ThermaCare Ultra Pain Relieving Cream , sold only in the US, and ThermaCare 
Schmerzgel , sold only in Germany.  
(b) A dedicated Pfizer CH m anufacturing facility, located in Albany, Georgia, US which 
manufactures 100% of the ThermaCare wraps for sale worldwide.  [Information on Pfizer 
CH’s manufacturing facilities]  is provided as Annex 1 ;  
(c) All production equipment at the Albany site, a list of which is included as Annex 2 ; 
(d) Raw materials if any, work in progress and finished goods inventory, supplies and 
promotional material relating exclusively to the Divestment Business, or necessary to the  
viable operation of the Divestment Business, held at the date of Closing;  
(e) All intellectual property rights relating to existing and legacy products (including, for the 
avoidance of doubt, ThermaCare Cold Wraps and any other discontinued ThermaCare -
branded  product) and R&D or pipeline projects necessary for the viable operation of the 
Divestment Business globally, whether owned by Pfizer or used under third -party license, 
including:  
(i) All ThermaCare  trademark and design rights (including logos, sub -brands, 
taglines, trade dress) and copyrights currently and previously used for the sale of 
products within the Divestment Business across the globe.  Relevant trademarks 
(including trademark design rights) identified by the Parties at this stage are listed 
in Annex  3; 
(ii) All patents (including utility and design patents) relating to the Divestment 
Business (patents identified by the Parties at this stage are listed in Annex 4 ); 
(iii) Rights to any domain names that relate to ThermaCare  (domain names identified 
by the Parties  at this stage are listed in Annex 5 ). 
For the avoidance of doubt, intellectual property rights that are exclusively or 
predominantly used for or by the Divestment Business will be transferred to the Purchaser 
subject to a non -exclusive, perpetual, irrevoc able, royalty -free license -back to the 
Combined CH Business or Pfizer (as the case may be) to the extent any such rights are 
necessary for the operation of any business of the Combined CH Business or of any 
Pfizer business on the Effective Date. GSK and Pf izer shall retain ownership of all of 
their existing intellectual property rights that are not exclusively or predominantly used 
for or by the Divestment Business. If any of these rights are necessary for the viability of 
the Divestment Business (subject t o the opinion of the Monitoring Trustee) such rights 
shall be subject to a non -exclusive, perpetual, irrevocable, royalty -free license to the 
Purchaser, to the extent necessary for the operation of the Divestment Business (except as 
specified in paragraphs  2(q) and 2 (r) below);  
 
16 
 (f) Transfer of all know -how and data that is exclusively or predominantly used for the 
development, manufacturing and marketing of products by the Divestment Business, 
including recipes for the ThermaCare Schmerzgel  and ThermaCare Ultra Pain Relieving 
Cream  formulations (subject  to a non -exclusive, perpetual, irrevocable, royalty -free 
license -back to the Combined CH Business or Pfizer to the extent any such know -how or 
data are necessary for the operation of any business of the Combined CH Business or 
Pfizer on the Effective Date ); and a non -exclusive, perpetual, irrevocable, royalty -free 
license to the Purchaser of all know -how and data that is not predominantly used for, but 
necessary for the viable operation of the Divestment Business (if any). This know -how is 
embodied in [Information on ThermaCare knowhow] ;  
(g) All licenses, permits, regulatory approvals and authorizations specific to the operation of 
the Divestment Business issued by any governmental organization for the benefit of the 
Divestment Business;  
(h) Ongoing and identified past R&D projects and pipeline products relating to the 
ThermaCare  brand globally. A list of pipeline projects is included in Annex 6 . At the 
option of the Purchaser, GSK will provide for a reasonable period  not exceeding [Time 
perio d] (with the possibility to extend for a further [Time period] , at the Purchaser’s 
request and subject to the opinion of the Monitoring Trustee)  technical assistance in 
relation to the transfer of all ongoing pipeline projects in order to enable the Purcha ser to 
continue the development of such projects without delay;  
(i) All R&D equipment (listed in Annex 7 ), raw materials and records, the use of which are 
[50-60]% or more devoted to the Divestment Business, or required for the viability of the 
Divestment Bus iness, housed in [Location].   These assets will be transferred to a location 
agreed upon with the Purchaser;  
(j) Customer lists, historic and current financial/accounting, marketing and pricing data and 
sales reports, as well as technical files (including reg arding the CE mark) associated with 
regulatory approvals, including, for the avoidance of doubt, past business records and 
clinical data, credit and other records and goodwill to the extent exclusively related to the 
Divestment Business or otherwise necess ary to ensure the viability and competitiveness 
of the Divestment Business (subject to the opinion of the Monitoring Trustee);  
(k) Best efforts to transfer (by way of assignment) the contract manufacturing and supply 
agreements, or relevant portions thereof, w ith [Information on contract manufacturing 
and supply agreements]  relating to, respectively, ThermaCare Ultra Pain Relieving 
Cream  and ThermaCare Schmerzgel or, in the absence of transfer, to enable the Purchaser 
to conclude a new contract manufacturing an d supply agreements in relation to these 
products, including by sharing the relevant information such as the existing contract terms 
and conditions. To the extent necessary, the Parties commit to use their best efforts to 
conclude back -to-back supply agree ments with the Purchaser for a reasonable period  not 
exceeding [Time period]  after Closing  (with the possibility to extend for  [Time period]  at 
the Purchaser’s request and subject to the opinion of the Monitoring Trustee)  until the 
Purchaser concludes its own arrangements;  
(l) With regard to any other sourcing or supply agreements or arrangements with third 
parties, including but not limited to the supply agreement with [Third party]  for the 
chemistry pre -mix, best efforts (i ) to assign these agreements or the relevant portions 
thereof, or (ii) if assignment is not possible, share the relevant supplier details, existing 
terms and conditions and other necessary information in order to assist the Purchaser to 
conclude new agreem ents with the relevant suppliers at the Purchaser’s option. To the 
extent necessary, the Parties commit to use their best efforts to conclude back -to-back 
sourcing or supply agreements with the Purchaser for a reasonable period not exceeding 
[Time period]  after Closing (with the possibility to extend for  [Time period]  at the 
 
17 
 Purchaser’s request and subject to the opinion of the Monitoring Trustee) until the 
Purchaser concludes its own arrangements;  
(m) Best efforts to transfer the relationship with  the third p arty [Third party]  as regards 
distribution by [Third party]  of ThermaCare in the US and transitional support as 
specified in (s) below;  
(n) A Hold -Separate Manager, based in the US or the EEA, with all required experience to 
effectively run the ThermaCare  business with the support of the personnel under point (o) 
below during the hold -separate period;  
(o) Personnel (an organizational chart and list of employees that will be transferred is 
attached as Annex 8 ) 
(i) A dedicated supply planner, based in [Location] ;  
(ii) All personnel employed at the Albany site, including a dedicated site leader, 
management team and pr oduction team;  
(iii) Dedicated research and development personnel [Information on Pfizer CH 
personnel] ;  
(iv) Dedicated personnel for marketing: [Information on Pfizer CH marketing 
personnel] . Additionally, in relation to other personnel who are involved on the 
Effec tive Date in the sale of ThermaCare  in the countries in [Geography] , the 
Parties commit to offer the Purchaser the opportunit y on request for [Time period] , 
to interview and hire such personnel, provided that the Parties shall act in good 
faith in evaluating any potential role changes or redundancies for such personnel, 
and shall not carry out any such role changes or redundancies for the purpose of 
frustrat ing this commitment, without prejudice to the application of the other 
provisions of these Commitments including paragraph 10 above, provided further 
that the Purchase r may hire at most [50-60]% of such personnel;  
(v)  [Number]  newly created positions of dedic ated sales persons covering 
[Geography] .  
(p) Of the Personnel mentioned in (o) above, the Key Personnel are:  
(i) Hold Separate Manager;  
(ii) [Information on Pfizer CH Key Personnel  name ], [Geography]  site leader, 
[Information on Pfizer CH Key Personnel work location] ; 
(iii) [Information on Pfizer CH Key Personnel  name ], Site Supply Chain Lead, 
[Information on Pfizer CH Key Personnel work location] ; 
(iv) [Information on Pfizer CH Key Personnel  name ], Process Technology & Medical 
Device Engineering Lead, [Information on Pfizer CH Key Personnel work 
location] ; 
(v) [Information on Pfizer CH Key Personnel  name ], Site Engineer/EHS Lead, 
[Information on Pfizer CH Key Personnel work location] ; 
(vi) [Information on Pfizer CH Key Personnel  name ], Site OpEx Training Lead, 
[Information on Pfizer CH Key Personnel work location];  
(vii) [Information on Pfizer CH Key Personnel  name ] , Site Operations Lead, 
 
18 
 [Information on Pfizer CH Key Personnel work location];  
(viii) [Information on Pfizer CH Key Personnel  name ], Principal Scientist Design 
Authority (formerly R&D Ma nager ThermaCare Design), [Information on Pfizer 
CH Key Personnel work location] ; 
(ix) [Information on Pfizer CH Key Personnel  name ], Senior Associate Product 
Manager, [Information on Pfizer CH Key Personnel work location] ; 
(x) [Information on Pfizer CH Key Personn el name ], Manager, Brand Lead 
ThermaCare, [Information on Pfizer CH Key Personnel work location] ; 
(xi) [Information on Pfizer CH Key Personnel  name ], Product Manager Iberia, 
[Information on Pfizer CH Key Personnel work location] ; 
(xii) [Information on Pfizer CH Key Personnel  name ], Product Manager, [Information 
on Pfizer CH Key Personnel work location] ; 
(xiii) [Information on Pfizer CH Key Personnel  name ], Junior Product Manager, 
[Information on Pfizer CH Key Personnel work location] ; 
(xiv) [Information on Pfizer CH Key Personnel  name ], Business Development Manager, 
[Information on Pfizer CH Key Personnel work location];  
(xv) [Information on Pfizer CH Key Personnel  name ], Senior Sales Strategy Manager, 
[Information on Pfizer CH Key Personnel work location].  
(q) A non -exclusive, royalty -free license to the Robax  trademark in Canada for use in the 
field of OTC topical pain management, to allow the Purchaser to manufacture, distribute 
and sell wraps produced by the Divestment Business for a period of [Time period]  from 
Closing (with the possibility to extend for a further [Time period] , at the Purchaser’s 
request and subject to the opinion of the Monitoring Trustee). Throughout this transitional 
period, the Purchaser shall be able to use the Robax  brand without limit ations in relation 
to the ThermaCare /Robax  co-branded products, and the Parties commit not to use the 
Robax  brand for topical pain management products during this transitional period;  
(r) A non -exclusive, royalty -free license to the Pfizer trademark in the cou ntries where the 
Divestment Business operates, for use in the field of OTC topical pain management, for 
the limited purpose of allowing the Purchaser to sell ThermaCare  wraps under the Pfizer 
trademark until the Purchaser fulfills all applicable regulatory  requirements (including 
obtaining its own CE marking), for a transitional period not exceeding [Time period]  
from Closing (with the possibility to extend for a further [Time period] , at the purchaser’s 
request and subject to the opinion of the Monitoring Trustee) ;  
(s) Transitional supply and service arrangements in order to maintain the economic viability 
and competitiveness of the Divestment Business as agreed with the Purchaser (unless the 
Purchaser does not require such transitional support).  All transiti onal agreements will be 
completed at the option of the Purchaser, for a transitional period of up to [Time period] 
after Closing (with the possibility to extend for a further [Time period] , at the Purchaser’s 
request and subject to the opinion of the Monit oring Trustee) on a cost basis.  Such 
transitional support includes:  
(i) Transitional packaging agreement for the secondary packaging of the ThermaCare 
SKUs identified in Annex 9  from [Location] ; 
(ii) Transitional agreements covering inter alia transport, warehousing and logistics;  
 
19 
 (iii) Transitional back -to-back arrangements for the distribution of ThermaCare  
products in countries where the Divestment Business relies on third -party 
distributors;  
(iv) Transitional support for IT systems;  
(v) Transitional services coverin g quality systems and adverse event reporting 
(currently provided from Pfizer’s [Location]  sites);  
(vi) Transitional back -to-back arrangement for the dedicated sales support of 
ThermaCare in the US through broker [Third party] ; 
(vii) The Parties will collaborate with  the Purchaser to identify, negotiate and agree on 
additional transitional arrangements to ensure smooth operation of the Divestment 
Business.  
3. The Divestment Business shall not include:  
 
(a)  the space occupied by the Medical Device Design Center in Richmond, Virginia US 
and all equipment, raw materials and records housed in that space, the use of which 
are less than [50-60]% devoted to the Divestment Business  (all equipment, raw 
materials and  records that are [50-60]% or more devoted to the Divestment Business 
are in scope);  
 
(b)  the Cluj, Romania Site;  
 
(c)  intellectual property rights which are not related to the operation of the Divestment 
Business;  
 
(d)  the Robax  brand or trademark (save for a limited, transitional, non -exclusive 
trademark licence as referred to in paragraph 2 (q) above);  
 
(e)  the “GSK” or “Pf izer” company name, marks, logos and domain names in any form 
(with the exception of the limited, transitional, non -exclusive license to the Pfizer 
trademark as referred to in paragraph 2 (r) above);  
 
 (f)  subject to 2 (o)(iv)  above, shared functions and personnel who devote less than [50-
60]% of t heir work to the Therma Care Business, including;  
  
 (1) Corporate;  
  
 (2) Finance (except two dedicated FTEs in Albany);  
 
 (3) Human Resources;  
 
 (4) Legal;  
 
 (5) Broader R&D facilities and personnel, provided however, that solely in respect of 
the [Number]  personnel from the Combined CH Business’s functional group 
 
20 
 “[Personnel Group] ”, GSK commits to offer to the Purchaser the opportunity on 
request to interview and employ such personnel;  
 
 (6) Commercial/Marketing;  
 
 (7) Sales, customer support and logistics;  
 
 (8) IT systems;  
 
 (9) other back office functions; and  
 
 (10) a number of shared resources in the areas of regulatory, safety, quality, post -
market surveillance and pharmacovigilance requirements that are not dedicated to 
Thermacare . 
 
4. If there is any asset or personnel which is not covered by paragraph 2 of this Schedule 
but which is both used (exclusively or not) in the Divestment Business and necessary 
for the continued viability and competitiveness of the Divestment Business (subject to  
the opinion of the Monitoring Trustee), that asset or adequate substitute will be offered 
to the Purchaser.