According to the Court of Justice of the European Union coordinated dissemination of misleading information may be regarded as an agreement restricting competition

On 27 February 2014, the Italian Competition Authority imposed a fine of over 180 million euro on F. Hoffmann-La Roche Ltd and Novartis AG and their subsidiaries. According to the Italian Authority, these companies concluded an anti-competitive agreement designed to achieve an artificial differentiation between the medicinal products Avastin and Lucentis in Italy.

F. Hoffmann-La Roche Ltd and Novartis AG and their subsidiaries aimed to disseminate opinions questioning the safety of Avastin product in the treatment of eye diseases. The mentioned undertakings agreed, inter alia, to provide to the European Medicines Agency unverified information about adverse reactions to the product. The concluded arrangement was intended to increase the demand for Lucentis at the expense of Avastin product.

The companies appealed against the unfavourable decision of the Italian Competition Authority and the case went to the Court of Justice of the European Union to which the questions for preliminary ruling were referred.

In the Court’s view, the fact that the two companies that place competitive products on the market agree with each other to disseminate information about a product introduced by one of them, may provide an indication that this dissemination serves purposes that have no connection with supervision of the safety of pharmacotherapy. What is more, according to the Court, the specific features of the medicinal product point to the high likelihood that the actions of Italian undertakings prompted doctors to abstain from prescribing Avastin, thus increasing the demand for Lucentis.

The above considerations led the Court to conclude that the arrangement concluded between two undertakings, which aims to reduce the competitive pressure on one medicinal product by disseminating information misleading as to the consequences of using a second medicinal product, limits competition within the meaning of art. 101 TFEU.

• Judgment of CJEU of 23 January 2018, case C-179/16