Reexamining pay-for-delay agreements: anticompetitive practices or strategic settlements under Article 101(1) TFEU?

This article explores whether pay-for-delay agreements between originator and generic pharmaceutical companies constitute anticompetitive practices under Article 101(1) of the Treaty on the Functioning of the European Union (TFEU). These agreements, where originator firms compensate generics to delay market entry, raise concerns about competition law violations. The European Commission has investigated such cases extensively, imposing fines on companies like Generics UK, Lundbeck, and Servier. The Court of Justice of the European Union (CJEU) has found certain agreements inherently restrictive, focusing on the role of value transfers. While the Commission favours case-by-case assessments, its analyses often lack depth. This research evaluates the criteria for anticompetitive behavior under Article 101 TFEU, examining key issues such as restriction by object, patents as entry barriers, and transfer value. It argues for a nuanced approach that balances legal and economic considerations to promote genuine competition and innovation in the pharmaceutical sector.