A new set of EU legal battles
Both pharmaceutical manufacturers and parallel traders have attempted to interpret European laws in their favour. This has
resulted in numerous, long court cases, both at national level and at European level, particularly at the European Court of
Justice (ECJ). Parallel traders believe that national economies benefit from the cheaper drugs they provide and cite the legal
cases they have won against manufacturers as evidence of official backing. Very recently, however, there has been a shift
in legal and political thinking that may place parallel traders under new pressure.
A frequent complaint by the pharma industry is that parallel trade undermines the ability of companies to invest in R&D. The
European Federation of Pharmaceutical Industries and Associations (EFPIA) estimated that parallel trade in the EU reached
€4.7 billion in 2007,3 which represents a sizeable drain on company profits. Although parallel traders dispute this figure and its financial impact
on R&D, European authorities are concerned about detrimental effects on research and so may reassess how relaxed they want
to be over this business practice.
More worryingly, parallel trade is cited as disruptive to pharmaceutical supply chains. In September 2009, the Association
of the British Pharmaceutical Industry (ABPI) warned that parallel trade was depriving UK patients of medicines.4 Certain medicines were found to be in short supply despite independent analyses confirming there had been sufficient initial
distribution to satisfy national demand. For example, Novartis was reported to be providing 65% more than its usual supply
of its kidney transplant product, Myfortic (mycophenolic acid) to the UK market, but this was still considered insufficient
to meet demand.4 According to the ABPI, the cheaper price of such products in the UK market was leading to parallel trade worth £30 million
a month to other EU markets.4 Parallel traders reject assertions that their business interferes with product supply, but will nevertheless be concerned
about consumer reactions to such news stories.
Is the law now favouring pharma?
Reports suggest that the French government is set to introduce a dual pricing system, which will directly dampen the ability
of parallel traders to sell products outside France in other EU markets.5 The law would allow companies to charge higher prices for products that are exported from the country than those used within
France. The change in the law seems designed to protect the pharmaceutical supply chain in France, as well as helping to revitalize
the French domestic R&D sector. Regardless of the motives, if the government pursues this policy it will be strongly challenged
by parallel traders in the ECJ.
In the past, measures that directly restrict the free flow of goods have allowed parallel traders to build a strong legal
case at the ECJ. However, there are signs that the EU's legal environment is also changing. In October 2009, GlaxoSmithKline
(GSK) won an important legal case at the ECJ despite previous European Commission (EC) rulings against the company's measures
to prevent parallel trade.6 In 1998, GSK had introduced special conditions for Spanish wholesalers that involved different product pricing depending
on whether a product was to be sold in Spain or exported to other EU markets.6 The EC took a dim view of this in 2001, ruling that GSK's measures breached European competition rules. In 2006, the Court
of First Instance supported the EC's initial decision, but it did leave grounds for an appeal to the ECJ.6 In the most recent development, the ECJ reiterated that agreements that restrict trade are to be considered anti-competitive,
but also stated that the EC should have considered whether GSK's measures qualified for an exemption.
The new ECJ ruling gives hope to pharmaceutical companies that measures they devise to restrict parallel trade cannot simply
be dismissed out of hand as being anti-competitive. As this legal case develops further, it will be interesting to see if
any pharmaceutical company policies to limit parallel trade are eventually deemed to be acceptable.
Loathed by pharmaceutical companies, but loved by those in favour of measures that have a downward pressure on pharmaceutical
prices, parallel trade has continued because of a general desire for the free movement of goods in the EU. Recent shifts in
government policy and certain court decisions suggest that pharmaceutical companies may have gained the edge in the arguments
over the technicalities of this business practice. However, parallel trade is far from doomed in the EU as any new judgement
is likely to result in a number of appeals. Therefore, a counter-attack from those in favour of parallel trade is to be expected.
The author says...
• Much to the anger of pharmaceutical companies, parallel trade continues because of a general desire for the free movement
of goods in the EU.
• Recent shifts in government policy and certain court decisions suggest that pharmaceutical companies may have gained the
edge in some arguments against certain trade practices.
• Counter-attack, in the form of an appeal, however, is to be expected from those in favour of parallel trade.
• It would seem likely that parallel trade will continue to thrive as pharmaceutical cost pressures continue to place a burden
on healthcare budgets throughout Europe.
Faiz Kermani is a freelance consultant and President of the Global Education Foundation. He is a member of Pharmaceutical Technology Europe's Editorial Advisory Board.
1. J. Killick, Brussels Legal (2006).
2. Europa, Treaty establishing the European Economic Community, EEC Treaty — original text (non-consolidated version) (2007).
3. EFPIA, Improving Europe's competitiveness (2008).
4. Manufacturing Chemist, Parallel trade is depriving UK patients of medicines, says ABP (2009).
5. Pharma and Healthcare Insights, Government To Implement Dual Pricing System For Medicines To Combat Parallel Trading (2009).
6. Norton Rose, European Court rules on Parallel Trade in the Pharmaceutical Sector (2009).