EN Official Journal of the European Union CE 78/939

(2004/C 78 E/0993)

WRITTEN QUESTION P-0193/04

by Ward Beysen (NI) to the Commission

(22 January 2004)

Subject: Parallel trade

During the Plenary Session of June 2003, the European Commission promised in answering my oral question (H-0315/03) (1), that it would ‘one way or the other […] adopt its position — positive or negative — on the supply quota systems by the end of this year’. This was in response to my asking why the Commission was not acting against pharmaceutical manufacturers who refuse to play by the EU's competition and single market rules.

So far, the Commission has not published its position on the supply quota systems. I would appreciate Commission explaining why this is the case.

Parallel trade in medicines is the only competition to patented drugs in Europe and delivers savings of millions of euros per year to government and patients.

Of course, the big pharmaceutical companies do not like these traders because their actions undercut their huge billion-dollar annual profits. But is it not time that their profits and the way they do business — for example by spending more money per annum on marketing than on research and development — were challenged more rigorously?

Despite losing its appeal in the recent Bayer (Adalat) case (joined cases C-2/01 Ρ and C-3/01 P), the Commission must act urgently to uphold the principles of the single market and ensure that pharmaceutical manufacturers respect competition law. I would welcome the reaction of the European Commission to the recent ECJ ruling in this case and ask the Commission to make known its position on the application of Article 82 as soon as possible.

Answer given by Mr Monti on behalf of the Commission

(19 February 2004)

As the Honourable Member mentions, on 6 January 2004, the Court of Justice dismissed the Commission's appeal in the Bayer (Adalat) case (2). While it must be noted that the issue at stake in this case was a narrow one (i.e. the concrete proof of an agreement within the meaning of Article 81(1) of the EC Treaty), the outcome has a direct impact on the assessment of the supply quota systems under Article 81 of the EC Treaty. However, the case-law of the Court of Justice does not seem to rule out the possibility that there might be grounds for challenging supply quota systems in the pharmaceutical sector pursuant to Article 82 of the EC Treaty which prohibits companies from abusing their dominant position.

In this respect, the Commission informs the Honourable Member that in the course of 2003 it has filed an amicus brief in the preliminary ruling case which is currently pending before the Court of Justice and which concerns the question of whether supply quota systems, such as the one implemented by GSK in Greece, may infringe Article 82 EC Treaty (3). In the Commission's view, supply quotas which are designed to impede parallel trade and affect competition may indeed infringe Article 82 unless there is a clear objective justification. However, this preliminary ruling case does not address questions related to the definition of the relevant market or the finding of dominance. These are the issues that the Commission is examining at present. A definitive finding of abuse requires indeed that the Commission establishes — in line with the required standard of proof — that the pharmaceutical companies are dominant for at least some of the products which are subject to supply quotas.

(1) Oral answer of 3.6.2003.

(2) Joined Cases C-2/01 Ρ and C-3/01 P.

(3) Case C-53/03, Syfait, OJ C 101, 26.4.2003.