The aim of this article is to focus on the approach by the European Commission (EC) to restriction by object in the two pay-for-delay decisions which the EC published in the last year, Citalopram (Case AT.39226) (also known as Lundbeck) and Fentanyl (Case AT.39685).
The cases are topical in part because the EC explains its approach to restriction by object in "non-obvious" cases. Both decisions were taken in 2013, so before the judgment by the Court of Justice (ECJ) in Cartes Bancaires (Case C-67/13 P), in which the Court suggested that the concept of restriction by object should be interpeted restrictively and only applied to particularly harmful agreements. Citalopram is being appealed. Put shortly, the EC's approach is to say that these pay-fordelay agreements are just market exclusion agreements in a particular context and therefore, by their nature, restrictions by object. However, the EC also states that, since restrictions on competition have to be assessed in their specific context, new findings of restriction by object are quite possible, even in non-obvious cases.
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Originally published by Competition Law Insight, 15 March 2016
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