Introduction

Introduction

Para 1-003 Joined Cases C-468/06 TO C-478/06, the Greek Competition Commission referred the Syfait case to the Greek Court (Efetio Athinon). The ECJ, having held that the Greek competition commission had no jurisdiction, the Greek court referred the same issues to the ECJ who thus had an opportunity to determine the issues raised in Syfait. The ECJ reiterated the basic principle that a dominant undertaking who refuses without objective justification to meet orders from an existing customer is an abuse of a dominant position. However, the ECJ clearly recognised the force of GSK's arguments that competition in the whole Community market was distorted and thus, its refusal to meet extraordinary orders was justified because if it failed to do so, it would have a very detrimental effect on research and development. Thus, it held that a dominant undertaking was entitled to refuse orders where such orders were out of the ordinary if such was necessary to protect its own commercial interests. It held that such could be the case where orders from wholesalers were out of all proportion to those previously sold by the same wholesalers to meet the needs of the market in that Member State. It is clear from this case that the ECJ felt torn by the need to uphold the sanctity of the single internal market which thrives on parallel imports and the need to ensure that pharmaceutical companies did not have to suffer from price regimes imposed in certain Member States which almost punitive. To effectively export those price regimes to the entirety of the European Community risked killing the golden gooses (the R&D pharma companies) that lay the eggs (the pharmaceuticals) and thus jeopardising inter-brand competition.

Status of international conventions in Community law

Para 1-065 Footnote 203. See also C-431/05 Merck Genéricos - Produtos Farmacêuticos Ldª v Merck & Co. Inc. and Merck Sharp & Dohme Ld where the Court of Justice held that as the Community had not legislated in the field of patents (save the Biotech Directive), it was not contrary to Community law for Member States to apply directly Art.33 of TRIPS (a patent must not expire earlier than 20 years from the date of filing). In the case, under earlier national legislation, a pharmaceutical patent expired after 15 years. However, if Art.33 TRIPS was directly applicable, then the minimum period of protection was 20 years.

TRIPS and Community law

Para 1-071 See C-431/05 Merck Genéricos - Produtos Farmacêuticos Ldª v Merck & Co. Inc. and Merck Sharp & Dohme Ld discussed at para 1-065