AG Saugmandsgaard Øe indicates that providing misleading information aimed at undermining the reputation of one drug to the benefit of another drug might constitute a restriction by object (Hoffmann-La Roche)

On 21 September 2017 Advocate General Saugmandsgaard Øe (‘AG’) issued his opinion in F. Hoffmann-La Roche vs Autorità Garante della Concurrenza e del Mercato (AGCM). In his opinion the AG provides guidance to the Court of Justice of the European Union (‘CJEU’) on the various questions raised by the Italian Consiglio di Stato (‘CdS’). The CdS raised these questions in the context of an appeal against a decision of the Italian Competition Authority (‘ICA’), which found that Roche and Novartis concluded an illegal market sharing agreement in the market for eye condition drugs. These questions related to market definition in the pharma sector; the impact of a licensing agreement on the application of Article 101; and the treatment under Article 101 of a concerted practice involving dissemination of potentially misleading information regarding the safety and efficacy of competing products.