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Pharmaceuticals & Health Services

Overview

Competition is key to ensuring access to innovative and affordable healthcare

European citizens need access to innovative and affordable health products and services. Effective competition is key to achieving this. Effective competition means that pharmaceutical companies, medical devices companies or other health-related companies compete on the basis of the qualities and prices of their products and services, not through anticompetitive practices. Effective competition incentivises companies to invest in the development of new treatments and to apply prices that are more competitive. When such circumstances prevail, citizens win.

Innovation and affordability are also promoted by shielding markets against excessive consolidation through mergers. Preventing market players from obtaining too much market power, for instance through the acquisition of their rivals, leads to more competitive markets and, in turn, protects incentives to innovate and price lower.

The Commission monitors business practices in the pharmaceutical, health services and medical devices markets and ensures that effective competition prevails.

The Commission’s main enforcement actions in antitrust and mergers in the pharmaceutical sector are described in its Report on competition enforcement in the pharmaceutical sector (2009-2017). The Report was drawn up in close co-operation with the national competition authorities of the 28 EU Member States. It explains how competition authorities in the EU are working together and how their enforcement actions contribute to affordable and innovative medicines.
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The Commission’s competition law enforcement toolbox

The tools of competition law enforcement in the health care sector include three pillars:

Antitrust: the Commission monitors agreements between companies and the conduct of dominant players and may take action against them if it has concerns that they are anticompetitive. If these concerns are confirmed and the EU antitrust rules (Articles 101 and 102 TFEU) are breached, the Commission may adopt decisions ordering the companies concerned to stop and desist from the infringing conduct and imposing fines. Since 2009, the Commission has adopted three antitrust decisions against pharmaceutical companies for having concluded anticompetitive agreements and abused a dominant position. These decisions imposed fines totalling approximately EUR 590 million (the amount covers the period 2009-2017) and does not reflect any adjustments to the fines following judicial appeals) and, in particular, constitute important precedents that give broader guidance to industry players on how to ensure that their conduct complies with the law.
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Mergers: the Commission prevents mergers that are likely to harm competition in the healthcare sector. In 2018 the Commission reviewed 8 mergers out of which it intervened in one case. In the period 2009-2017, the Commission has analysed more than 80 mergers in the pharmaceutical sector. Out of these, approximately 25% were problematic from a competition standpoint and were cleared only after the merging parties committed to take certain corrective actions. The problems identified related mainly to the risk of price increases, the risk of depriving patients and national healthcare systems from the supply of some medicinal products, and the risk of curtailing innovation in relation to certain treatments.
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State aid: the Commission also monitors and may intervene in relation to State measures that grant unfair advantages to companies active in the healthcare sector, thereby ensuring pharmaceuticals markets offer a level-playing field to companies.
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Cooperation with national competition authorities

Like in all other sectors, the Commission also in this area cooperates closely with national competition authorities (NCAs) through the European Competition Network (ECN). This cooperation includes regular discussions between the colleagues working on pharmaceuticals, medical devices and health services.

The Commission and the 28 NCAs share enforcement work. Like the Commission, NCAs can adopt antitrust decisions requiring companies to cease and desist from an anticompetitive agreement or abuses of dominance that breach EU antitrust law. NCAs can also prevent, under their national rules, the completion of mergers that do not fall under the Commission’s jurisdiction and are likely to harm competition in their country.

In the period 2009-2017, NCAs across the EU adopted 26 antitrust decisions finding an infringement of the EU antitrust rules, or accepting binding commitments to remedy anticompetitive agreements or abuses of dominance related to pharmaceuticals. Fines were imposed in a number of these cases for in total approximately EUR 590 million.
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