Court of Appeal confirms Competition Authority’s ruling against pharmaceutical companies

​The Lisbon Court of Appeal has upheld the Competition Authority ruling which found pharmaceutical companies guilty of fixing the prices, in public tendering procedures for hospitals, of the reagent to determine blood sugar.

The judgement by the Lisbon Court of Appeal was handed down following an appeal by the defendants Abbott Laboratórios Lda., Menarini Diagnósticos Lda., and Johnson & Johnson Lda. against the decision by Lisbon Commercial Court, which had also upheld the Competition Authority’s ruling.

The Court of Appeal maintained the fine of EUR 3,000,000 (three million euros) imposed by the Lisbon Commercial Court on the defendant Abbott Laboratórios Lda., though it reduced that imposed on the defendant Menarini Diagnósticos Lda. In the latter case, it considered that it was dealing with a single offence, committed over several years, rather than various distinct breaches. It set the fine at EUR 1,000,000 (one million euros).

With regard to the defendant Johnson & Johnson, the Appeal Court announced that the administrative-law proceedings had lapsed since, though the enterprise lodged an appeal, it had already paid the fine.

In a ruling handed down in January 2008, following the consolidation (joint assessment) of two cases and the suppression of formal irregularities, the Competition Authority (CA) found four enterprises (Abbott Laboratórios, Bayer, Menarini Diagnósticos and Johnson & Johnson) guilty of price-fixing in public tendering procedures for hospitals between 2001 and 2004.

At the time, the pharmaceutical company Bayer accepted the decision and paid the fine, whereas the other enterprises contested it, lodging an appeal with Lisbon Commercial Court and, later, Lisbon Court of Appeal.

The matter at issue involved concerted practices between undertakings with the object or effect of preventing, restricting or distorting competition, to an appreciable degree, by the fixing of prices in public procedures for the procurement of goods in the hospital segment. The procedures were set up to acquire the reagent for determining blood sugar (“reagent strips”).